72 Colo. 248 | Colo. | 1922
delivered the opinion of the court.
The parties hereto are hereinafter designated as in the trial court, where plaintiff in error was defendant and defendant in error was plaintiff.
Defendant operates a check room at the union station in Denver. May 11, 1920, plaintiff there checked a traveling bag, which with its contents was of the value of $293.75, paying in advance the required charge. Later in the day she called for redelivery, which failed; the bag and contents having disappeared. To plaintiff’s demand for payment in full, defendant offered to pay $25.00 and no more. Thereupon this action was brought. Trial was to the court without a jury. Findings were for plaintiff for the full amount of her claim with interest, and judgment was entered accordingly. To review that judgment defendant sues out this writ and the cause is now before us on application for supersedeas.
The complaint alleges the bailment, value of the property, failure to redeliver, and loss through negligence.
It will be borne in mind that this is. a case of loss through undisputed negligence of the bailee, and such is the evidence before us, 'and the finding of the trial court, that it is settled herein that plaintiff did not see the posted notice, did not read the limitation on the check given her, and had no actual knowledge of any custom of limitation.
The transaction under consideration was a bailment for hire in the'course of the bailee’s general dealing with the public. In such cases contracts limiting liability for negligence are generally against public policy. 6 C. J. 1112. Denver P. W. Co. v. Munger, 20 Colo. App. 56, 77 Pac. 5; Pilson v. Tip Top Auto Co., 67 Ore. 528, 136 Pac. 642; Parris v. Jaquith, 70 Colo. 63, 197 Pac. 750.
Assuming, but not deciding, that such a contract can be upheld, the first question presented is, Did the attempted limitation here rise to the dignity of a contract? In view of the general rule above announced it is clear that there can be no presumption in favor of a limitation of liability. He who alleges it must be held to strict proof, and that the posted notice is not of itself sufficient is settled in Parris v. Jaquith, supra.
Such limitation of liability, under facts substantially the same as in the instant case, is upheld in Noyes v. Hines, 220 Ill. App. 409, based largely upon English authorities, and denied in Healy v. N. Y. C. & H. R. R. Co., 153 App. Div. 516, 138 N. Y. Supp. 287, affirmed in 210 N. Y. 646, 105 N. E. 1086, which seems to follow the general trend of decisions in the courts of this country. We accept the reasoning of the latter.
In the Noyes case the Illinois court goes only to the ex
Moreover, it is said in Terry v. Southern R. Co., 81 S. C. 279, 18 L. R. A. (N. S.) 295, 62 S. E. 249, cited by defendant, that this check room business is not a part of the business of a common carrier, and defendant in receiving the bag “contracted as a warehouseman.” Section 21, p. 659, L. 1911, concerning warehousemen, makes them liable for loss due to their own negligence.
Cases cited by defendant in which a limited liability was printed in a railway ticket which after purchase and opportunity for examination was used by a traveler as a basis for checking baggage, gratuitous bailments, and bailments evidenced by checks or receipts requiring specific notation at the time of the bailment of the articles in question or their values, are clearly distinguishable in principle from
It is next contended that this limitation is valid under an order of the Director General of Railroads which has extended up to and including September 20, 1920 by .the United States Transportation Act of that year.
The President of the United States took over the railroads under the Act of Congress of August 29, 1916, chapter 418, and his proclamation was issued December 28, 1917. The act of 1920 terminated federal control on March 1, save as to “regulations and practices on lines” subject to the Interstate Commerce Act. Section 1 of that act (3 Fed. Stat. Ann., Edition of 1903, 809) provides that it shall not apply to the “receiving, delivering, storage, or handling of property, wholly within one State.” If, therefore, the business of defendant was properly taken over under the Act of Congress and the presidential proclamation (which question we find it unnecessary to decide), such federal control terminated prior to the date when the cause of action herein arose.
In our opinion there was no contract between plaintiff and defendant limiting the bailee’s liability for negligence, and no order of the Director General of Railroads is here involved. The supersedeas is accordingly denied and the judgment affirmed.