69 Ill. 62 | Ill. | 1873
delivered the opinion of the Court;
The question presented by this record is, as to the effect of the clause in the receipt in this case restricting the liability of the company to $50, unless the value of the package was stated. The denial in the testimony that the consignors had knowledge of this condition in the receipt, must be held to be overcome by the circumstances of the case. These consignors were business men, merchants, engaged in an extensive traffic in the city of New York. They had, for . a series of years, been doing business with this company, making shipments of goods over its lines for a period of at least a year and a half prior to the delivery of the package in question, these shipments occurring as often as two or three times a week. They were provided with a book containing the printed blank receipts of the company in general use, which they were in the habit of filling out themselves and presenting to the company’s agent for signature when he called to receive a package.
The terms and conditions on which the company received property for transportation were clearly expressed in the body of the receipt, and in a way not calculated to escape attention. It must be supposed that these men paid some attention to the transaction of their business, and were reasonably well informed in regard to the nature of their contracts. That they should have been so doing business with this company for years, handling, filling out and procuring the execution of these shipping receipts without a knowledge of their general character and effect, it is difficult to believe. They must be held to have had such knowledge.
The position is taken by appellants’ counsel, that it is incumbent upon the express company to show, not only that the consignors had knowledge of the contents of the receipt, but also that they assented to the same, and consented to be bound thereby.
A distinction exists between the effect of those notices by a carrier which seek to discharge him from duties which the law has annexed to his employment, and those, like the one in question, designed simply to insure good faith and fair dealing on the part of his employer—in the former case, notice alone not being effectual, without an assent to the attempted restriction; while in the latter case, notice alone, if brought home to the knowledge of the owner of the property delivered for carriage, will be sufficient.
The rule in this respect is thus laid down by the Supreme Court of Yew York: “If he (the carrier) has given general notice that he will not be liable over a certain amount unless the value is made known to him at the time of delivery, and a premium for i usuran eg. paid, such notice, if brought home to the knowledge of the owner, (and courts and juries are liberal in inferring such knowledge from the publication of the notice,) is as effectual in qualifying the acceptance of the goods, as a special agreement, and the owner, at his peril, must disclose the value and pay the premium. The carrier, in such case, is not bound to make the inquiry, and if the owner omits to make known the value, and does not therefore pay the premium at the time of delivery, it is considered as dealing unfairly with the carrier, and he is liable only to the amount mentioned in his notice, or not at all, according to the terms of his notice.” Orange Co. Bank v. Brown, 9 Wend. 115. See also 2 Greenleaf Ev. sec. 215; Ang. on Carriers, sec. 245; Farmers’ and M. Bank v. Champlain Trans. Co. 23 Vt. 186; Moses v. Boston and M. Railroad,4 Foster, 85.
The distinction above adverted to has been recognized by this court. Western Trans. Co. v. Newhall et al. 24 Ill. 466.
The common carrier is liable, as we find it frequently laid down, in respect to his reward, and the compensation should be in proportion to the risk.
As the carrier incurs a heavy responsibility, he has a right to demand from the employer such information as will enable him to decide on the proper amount of compensation for his services and risk, and the degree of care which he ought to bestow in discharging his trust. Hollister v. Nowlen, 19 Wend. 244. And such a limitation of the carrier’s liability as the one in question is held to be reasonable and consistent with public policy.
But independent of the qualifying provision contained in the receipt, we should be inclined to sustain the defendant’s claim of exemption from liability on the ground of a want of good faith in not disclosing the value of the goods.
These consignors knew that there was a recognized distinction, on the part of the company, between valuable packages and ordinary freight; that they had their separate collectors of the two kinds, and the consignors were provided with signs to hang out to denote which one of the collectors they had goods for. They must have displayed the sign indicating that they had ordinary merchandise to be carried, as the box in question was delivered to that collector. In the blank receipts which they were so frequently filling out, there was a blank space after a dollar mark for filling in the amount the goods were valued at; this was a virtual request on the part of the company to state the value. There was an actual attempt here by the agent of the shippers to fill in this blank space, but instead of inserting 3800 (the value), a mark or character was inserted inexpressive of any value. This shows that there was a designed suppression of the value of the goods. That was unfair conduct on the part of the shippers of the goods. The effect of such conduct to relieve the carrier from his liability as insure^, is asserted in the cases of The Chic. and A. R. R. Co. v. Thompson, 19 Ill. 578, and American Express Co. v. Perkins, 42 id. 459. Had the true value of the goods been disclosed, there would have been an extra charge of $9.50, increased precautions would have been taken for the safety of the goods, and, as the evidence shows, they would have been saved.
The court below was justified in coming to the conclusion that the consignors elected to take the risk of the loss, rather than subject the plaintiffs to the enhanced charges that would have been made had the value of the package been disclosed.
It is unnecessary to consider the effect of that provision in the receipt, which has been urged upon our attention by appellants’ counsel, that the company are not to be held liable for any loss or damage except as forwarders only, as that provision and the one in question are distinct and severable, and the one might be held to be obligatory upon a party, where the other would not be.
We are urged, on behalf of the appellants, to put. this construction upon the receipt: that the limitation of liability to $50, in case of loss, relates only to the duty of the company while acting as forwarder, and not while acting as carrier. We do not regard the instrument as reasonably susceptible of any such interpretation. The plain reading as well as meaning of the limitation in question is, that the company are not to be held liable for any loss or damage of any package for over $50, unless its value be stated. And the limitation is not liable to the objection urged by appellants’ counsel, that it is invalid because the effect of it would be to relieve the company from liability even in case of loss occasioned by its own negligence. The established legal construction of such condition's is otherwise. They are not to be read as providing against losses or injuries occasioned by actual negligence. Story on Bailm. secs. 570, 571; Lager v. Ports. S and P. and E. R. R. Co. 31 Me. 228. Numerous are the decisions where the validity of such provisions has been recognized and affirmed.
It is said the practice and course of dealing had been such on the part of the company as to amount to a waiver of the limitation, and to induce the consignors to believe that it would not be insisted upon. We do not find in the evidence sufficient to justify the. assertion that the company’s course of dealing had been such as to lead either the appellants or their consignors to infer that it did not insist upon the conditions embodied in the printed receipts.
Because the company, as shown by the evidence, had settled for losses of bulky goods without raising the point whether, by the terms of the contract, it was discharged from liability, and, in one instance, paid the appellants for a loss exceeding §50 where there was no valuation, the company was not thereby precluded from questioning its liability in any case that might arise thereafter, and the appellants had no right to expect that it would not do so. The written contract speaks for itself what it is, and is not to be thus contradicted or modified by parol evidence. Evans v. Soule, 2 Maule & Sel. 2.
The judgment of the court below will be affirmed.
Judgment affirmed.