160 Ill. 648 | Ill. | 1896
delivered the opinion of the court:
By his declaration the plaintiff alleged in the first count that defendant, as a common carrier for hire, received and undertook to carry certain goods from Chicago, Ill., to Seattle, in the State of Washington, and there safely deliver the same to the plaintiff, but neglected and failed to do so, by reason of which the plaintiff sustained damage. The second count was similar to the first, with the averment of a different shipment as to date.
It appears the appellee had been long accustomed to have in his possession receipts furnished by the appellant, which .provided that if the property was to be forwarded beyond the lines of the appellant it should be delivered to a carrier to be carried to the place of destination, and that the responsibility of the appellant should cease at its depot, at which the property was to be delivered to such carrier. On April 29, 1889, by order of the appellee, his book-keeper shipped a case of dry goods, marked, “B. Simon, Seattle, W. T.,” by the railway of the appellant, and sent to the depot one of the receipts, properly filled out, for signature by the agent of the appellant. The agent signed it by a stamp, which in red letters stated, “not responsible beyond the terminal station on this line.” The receipt was returned to the store of the appellee, who two days afterward exchanged it for a bill of lading, without, as he testified, knowing the contents of either. At Minnesota Transfer, in the State of Minnesota, (the terminal station of the railway of appellant on the line between Chicago and Seattle,) the appellant delivered the case to the Northern Pacific Railroad Company, the connecting railway towards Seattle. There was a wrong delivery of the case by the Puget Sound Railroad Company, to whom it was afterward delivered, so that it was lost to the appellee, and he sued the appellant for such loss, and has recovered in the trial court, and on appeal to the Appellate Court that judgment was affirmed. The book-keeper was not called as a witness. The question presented on this record is whether the appellant is liable, by reason of the attempted restriction in the bill of lading, for losses beyond the terminus of its own line.
By the adjudications of this court the rule is established as a principle of the common law, that where a carrier receives and accepts goods marked to a place beyond the terminus of its own line, its receipt for goods so marked is to be construed as a prima facie contract to carry and deliver at the point so marked. Illinois Central Railroad Co. v. Copeland, 24 Ill. 332; Illinois Central Railroad Co. v. Johnson, 34 id. 389; Illinois Central Railroad Co. v. Frankenberg, 54 id. 88; American Merchants’ Union Express Co. v. Schier, 55 id. 140; Chicago and Northwestern Railway Co. v. Montfort, 60 id. 175; United States Express Co. v. Haines, 67 id. 137; Chicago and Northwestern Railway Co. v. Northern Line Packet Co. 70 id. 217; Field v. Chicago and Rock Island Railroad Co. 71 id 458; Merchants’ Despatch Transportation Co. v. Moore, 88 id. 136; Merchants’ Despatch Transportation Co. v. Kahn, 76 id. 520; St. Louis and Iron Mountain Railroad Co. v. Larned, 103 id. 293; Erie Railway Co. v. Wilcox, 84 id. 239.
Such being the common law duty of the carrier it can not limit that duty by notice. (Western Transportation Co. v. Newhall, 24 Ill. 466; Merchants’ Despatch Transportation Co. v. Furthmann, 149 id. 66, and cases cited.) Neither can the carrier limit his common law liability safely to deliver such property at the place to which the same is to be transported, by any stipulation or limitation expressed in the receipt given for such property. (Starr & Curtis’ Stat. chap. 114, sec. 96, and chap. 27, sec. 1.) By these two sections (the first adopted in 1872 and the second in 1874) the right to limit a common law duty in a receipt was prohibited. It has, however, been recognized by frequent decisions of this and other courts, that a common law duty may be limited by express contract. Field v. Chicago and Rock Island Railroad Co. 71 Ill. 458; Illinois Central Railroad Co. v. Frankenberg, supra; Illinois Central Railroad Co. v. Morrison, 19 Ill. 136; Chicago and Northwestern Railway Co. v. Chapman, 133 id. 96, and cases cited.
Bills of lading may be both receipts and contracts. So far as they acknowledge the delivery and acceptance of the goods they are mere receipts. As to the rest they may become express contracts. (Hutchinson on Carriers, 122.) The rule that a limitation of a carrier’s liability for safe carriage and delivery of freight beyond the terminus of the carrier’s own line may be made by restrictions contained in that part of the bill of lading which may constitute a contract, has been recognized in this State. Erie and Western Transportation Co. v. Dater, 91 Ill. 195; Merchants’ Despatch Transportation Co. v. Joesting, 89 id. 152; Merchants’ Despatch Transportation Co. v. Leysor, id. 43.
Where a contract limiting the liability of the carrier is contained in a bill of lading which, in its entirety, constitutes both a receipt and contract, the onus is on the carrier to show the restrictions of the common law-liability were assented to by the consignor. (Field v. Chicago and Rock Island Railroad Co. supra; Boscowitz v. Adams Express Co. 93 Ill. 523.) And whether there is such assent is a question of fact. The mere receiving the bill of lading, without notice of the restrictions therein contained, does not amount to an assent thereto. (United, States Express Co. v. Haines, supra; Anchor Line v. Dater, 68 Ill. 369; American Merchants’ Union Express Co. v. Schier, supra; Merchants’ Despatch Transportation Co. v. Joesting, supra; Erie and Western Transportation Co. v. Dater, supra.) In this case, whether the limitation in the bill of lading was assented to by the consignor was a question of fact determined by the Appellate and trial courts adversely to appellant, and no question of law is presented in this court under which those questions of fact are before us.
We find no error of law, and the judgment of the Appellate Court is affirmed.
Judgment affirmed.
