Central of Georgia Railway Co. v. City Mills Co., 128 Ga. 841

Central of Georgia Railway Co. v. City Mills Co.

128 Ga. 841 | Ga. | 1907

Lumpkin, J.

“A common carrier can not limit his legal lia-

bility by any notice given, either by publication or by entry on receipts given or tickets sold. He may make an express contract, and will then be governed thereby.” Civil Code, §2276. As to contracts seeking to waive the results of negligence as a common carrier, see Central Railway Co. v. Hall, 124 Ga. 322. The express contract referred to above may be signed by the parties, but is not obliged to be so. The mere acceptance of a bill of lading or a ticket which contains a limitation upon liability will not amount to an express contract. Boyd v. Spencer, 103 Ga. 828; Southern Express Co. v. Newby, 36 Ga. 635. Whether an express contract has been made, limiting liability, in the absence of any *846signature of the shipper or his agent, is generally a question for the jury, if there be evidence tending to show such a contract. Southern Express Co. v. Purcell, 37 Ca. 103; Wallace v. Matthews, 39 Ga. 617; Wallace v. Sanders, 42 Ga. 486, 490. The presiding judge charged the jury as follows: “Did both of the parties, the plaintiff, and the defendant, understand by that, at the time this receipt was signed, that the liability of the defendant company was limited to its own line and until delivered to the connecting carrier in good order? Did they both understand it that way? Was that the contract between them? You look to the evidence and you decide what the truth about that matter is.” On looking to the evidence it appears that the plaintiff’s agent testified that the plaintiff itself prepared and had printed the form which was used. It was not a blank prepared by the railroad company and signed by its agent and delivered to the shipper; but the agent of the latter himself made out the receipt in his own handwriting and presented it to the agent of the railroad company to sign. The car was furnished by the company and loaded, closed, and fastened by the plaintiff before being delivered to the railroad company. The shipment was made by “shipper’s load and count.” The plaintiff knew that the defendant did not have a line of railroad to Jacksonville, and that it was necessary that the car should be transported over a connecting line in order to reach its destination. It was not a matter of haste or of mere acceptance of a receipt on the part of the plaintiff, but of deliberation and preparation. The plaintiff voluntarily placed in a receipt prepared by it a statement that the shipment should be “As per conditions of Company’s bill of lading.” Its agent testified that he knew that the bill of lading referred to contained terms and conditions for the protection of the company in shipments, but he did not know what those conditions were. Nevertheless, without taking the trouble to inform himself, though he testified that he had seen thousands of the bills of lading, he placed this stipulation on the face of the receipt, and induced the railroad company to sign it, with such reference to the bill of lading as an integral part of it. He also testified that it was his intention, as representing the plaintiff, in making out every paper or contract of shipment, that it should be subject to the terms and conditions of the company’s standard bill of lading; that such was his intention when he made *847out the receipt relied on; and that the bill of lading referred to was the company’s regular shipping bill of lading; but that he never read the conditions thereof. If the shipper deliberately prepared a contract for the railroad company to sign, and himself placed in it an adoption of the conditions of the company’s regular bill of lading, with the express assent of the company, and with the purpose of binding the shipper thereby, and thus induced the railroad to accept and use it, instead of using the regular bill of lading, it would be doing violence to the most fundamental principles of contracts and good faith between' parties to allow the plaintiff afterwards to say that he was not bound by the conditions of the company’s bill of lading because the shipper’s own agent did not take the trouble to know what he meant by or included in the contract which he himself prepared. There is no pretense that he did not have ample opportunity to know what the conditions were before and when he adopted them as a part of the receipt which he was preparing. We think the charge of our brother of the superior court might have led the-jury to believe that, although it may have been intended and expressly agreed that the shipment should be subject to the conditions of the company’s bill of lading, yet if the plaintiff’s agent, at the time of the shipment, did not understand the contract which he had previously prepared in blank and then filled out, and thus prepared for the other party to sign, however ample opportunity he may have had for understanding it, or however negligent it may have been not to understand it, nevertheless the plaintiff would not be bound by it.

It was contended by counsel for the plaintiff that it was not certain that the form of the bill of lading which was introduced in evidence was the one referred to in the receipt. But while at one point in his evidence the plaintiff’s agent did make use of the expression, “I can not say whether the regular form of the bill of lading now shown m.e is the kind referred to in the receipt or contract of shipment attached to our' suit,” he immediately added, “I. presume, of course, that the contract prepared by me for the City Mills Company refers to their regular bill of lading,” and at another time stated that the bill of lading referred to was the company’s “regular shipping bill of lading.”

Judgment reversed.

All the Justices concur.