93 P. 439 | Utah | 1908
This is an action to recover damages for an injury to live stock, consisting of sheep', alleged to bave been occasioned through tbe negligence of tbe defendant, a common carrier, in transporting tbe sbeep from Soda Springs, Idaho, to Orna-ba, Nebraska. The ease was tried to the court, who, among other things, found that the defendant, at Schuyler, Neb.,neg
The only question presented by the appeal is with respect to the validity and effect of the contract. As a general rule common carriers are held liable as insurers of property intrusted to them, and are held responsible for any loss of or damage to the property, unless occasioned by the act of God or by the public enemy. The law is, however, well settled in this country that the carrier’s liability as an insurer may be limited by special contract, when fairly entered into and reasonable in, its terms, and that it may limit its common-law liability for any loss, provided such loss is not the result of its negligence or misconduct, or that of its servants. The rule is equally well settled that the carrier cannot make a valid contract by which it is to be exempt from liability for
Eor the same and other reasons not necessary to here state, it may be said that paragraph 6 of the contract is also invalid:
At a former hearing of this case we rendered an opinion, which was filed, but not published, wherein it was in effect held by us that the stipulation in the contract requiring the presentation of a claim as a condition precedent of liability for loss or damage should only apply to and be given effect in case of a loss or damage not occasioned by the defendant’s negligence or misconduct; and, as the court found plaintiff’s damage to be the result of defendant’s negligence, the stipulation was held to be inoperative. We reached this conclusion upon the theory that, when an injury has been sustained by the negligence of the carrier, a complete cause of action arose upon the infliction of the injury; that to permit the carrier by special contract to make an additional requirement, such as the presentation of a claim as a condition precedent of lia
“It is usual to insert in bills of lading, or other contracts for shipment, a stipulation that written notice of a claim for loss of or damage to the goods shall be given to the agents of the carrier within some specified time, such as thirty or ninety days, and that unless such notice is given there will be no liability on the part of the carrier, and such stipulations are generally upheld so far as they are .found to be reasonable. Cases holding such stipulations to be invalid are usually based on the ground that the terms thereof are unreasonable, rather than on the general invalidity of such conditions. But they are regarded as limitations of the carrier’s liability, and thero-fore as ineffectual against a claim for loss or injury due to the carrier’s negligence, and also as invalid where limitation of common-law liability is prohibited by statute.”
“It is -well settled that these stipulations in the contract -will not be construed to relieve the carrier from liability for his own negligent acts. His duty and obligation to exercise a proper degree of care of the property while in his custody is not affected by them.. Full and sufficient scope is given to their operation when it is held that, they exempt the carrier from his common-law responsibility as an insurer of the property.”
After our opinion was rendered, a petition for rehearing' was filed. Upon further reflection we became somewhat doubtful of our position in this regard. A rehearing was therefore granted, and the case has again been argued and resubmitted. That the courts greatly divide on this question there can be no doubt. It may also be conceded that the greater number of cases hold, and many textwriters seemingly declare the law to be contrary to the views expressed by us. Among them may be cited the following: 4 Elliott on Eailroads, sec. 1512; 1 Hutchinson on Carriers, sec. 442; Moore on Carriers, 333; 5 Am. & Eng. Ency. Law, 321. Many cases are cited by these text-writers. It was not necessary to set them forth here. The rule declared in 1 Hutchinson on Carriers, sec. 442, is as follows:
“It is frequently the custom for the carrier to insert in the contract of shipment a condition that, in the event of loss, the owner shall give notice of his claim within a specified time. Such conditions are usually to the effect that the notice shall be in writing and presented to some officer or agent of the carrier, either before the goods are removed from the point of destination, or within a certain time thereafter-, or within a designated time after the loss has occurred; and when such conditions are reasonable the owner will be precluded from the right to maintain an action against the carrier, unless he has presented the notice within the time stated and in the manner provided.”
Whether the author iu the above quotation is dealing with a “loss” for which the carrier is liable as an insurer, or with a loss or damage occasioned from any cause for which the carrier is liable, including his misconduct and negligence, is
“A valid contract may be made requiring claims for loss or damage to freight to be presented in a certain manner or within a certain time, provided it is reasonable.”
In Moore on Carriers, at page 333, it is said:
“The carrier may lawfully, by contract with the shipper made by clause or stipulation in the bill of lading or shipping receipt or ■otherwise, provide a reasonable time within which the shipper shall present his claim or give notice of claim for loss or damage, and the manner of giving such notice or presenting his claim, and limit its liability to eases in which the claim shall be presented or notice given in accordance with the terms of the contract.”
But on page 336 tbe following statement is made by tbe same author:
“Most of the authorities sustain such stipulations, even where the loss is one caused by the defendant company’s negligence. In Texas such a stipulation is held to be a limitation of the common-law liability of the carrier, and of no effect where the loss is one resulting from the carrier’s negligence.”
While some of tbe cases cited in support of these texts pertain to claims of loss or damage for which tbe carrier was sought to be held liable as an insurer, yet others pertain to claims of loss or damage occasioned by the negligence of the carrier. Among the latter may be cited: Goggin v. Kan. Pac. Ry. Co., 12 Kan. 416; Sprague v. Mo. Pac. Ry. Co., 34 Kan. 347, 8 Pac. 465; W. & W. Ry. Co. v. Koch, 47 Kan. 753, 28 Pac. 1013; The St. Hubert, 107 Fed. 727, 46 C. C. A. 603; The Westminster, 127 Fed. 680, 62 C. C. A. 406; So. Ry. Co. v. Adams, 115 Ga. 705, 42 S. E. 35; Dawson v. Railway Co., 76 Mo. 514; Hatch v. Minneapolis, etc., Ry. Co. (N. D..), 107 N. W. 1087. The above are not all the cases that are cited on this point; but these sufficiently show that in a number of cases the requirement of notice or the presentation of a claim was held to apply to a loss or damage occasioned by the carrier’s negligence, and by reason of their citation in support of the foregoing texts it may fairly be in
The cases cited from Illinois, Wisconsin, and New York are not in point, for the reason the rule obtained in those jurisdictions that it was not against the policy of the law to contract against ordinary negligence. All the courts giving effect to such stipulations, when applied to a loss or damage by negligence, in most positive terms assert that it is against public policy to permit a common carrier by special contract to relieve itself from, or limit its liability for, a loss or damage incurred by its negligence or misconduct; but it is-asserted that the giving effect to such a stipulation in such a case is not violative of this principle. Some courts have given reasons for such a conclusion. Others merely discuss the question as to whether the stipulation was reasonable under all the facts and circumstances of the case, and, when found to be so, merely assert that it was not against the policy of the law. In some cases the conclusion is supported by the citation of cases where the stiplation was given effect in case of loss for which the carrier was sought to be held liable as an insurer. We well can understand why a stipulation, when reasonably and fairly entered into, requiring notice of claim of loss as a condition precedent to charge the carrier with liability as an insurer, does not contravene the policy of the law under consideration; for it is readily perceived that a loss or damage may occur by accident, dangers of carriage or navigation, and from other causes for which the carrier, at common law, is liable, but against which human skill and vigilance could ordinarily not have guarded. The principle is well illustrated in the case of So. Pac. Exp. Co. v. Caldwell, 21 Wall. (U. S.) 264, 22 L. Ed. 556. Many such losses will and do occur of which the carrier has no knowledge until notified, and unless a notice is given within a reasonable time no •opportunity of investigating and ascertaining the facts is afforded it. A stipulation, therefore, that the carrier shall be relieved from the rigid and severe rules of the common law, which hold it liable as an insurer, unless notice of claim
“The contract is not a stipulation for exemption from responsibility for the defendant’s negligence, or for that of their servants. It is freely conceded that, had it been such,' it rvould have been against the policy of the law and inoperative. A common carrier is always responsible for his negligence, no matter what his stipulations may be.”
The reasons so well stated hy that court why the stipulation was not against the policy of the law, when applied to a case of liability as an insurer, and where the question of negligence was not involved, are now given by many courts in cases of damage or injury to property by negligence, as is well illustrated in the case of Sprague v. U. P. Ry. Co., supra. In that case the action was brought against the carrier for negligence in the management of its cars, by reason of which the plaintiff’s horses, which were being shipped, were thrown down, bruised, and injured, .so that one of them died' and the others were disabled. The reason given why the stipulation in the contract of shipment requiring notice of claim as a condition precedent of liability was not against the policy of the law was that it tended
“To protect the company from fraud and imposition in the adjustment and payment of claims for damages by giving the company a reasonable opportunity to ascertain the nature of the damage and its cause.”
As we have attempted to show, in a case where the carrier is sought to be held liable as an.insurer, there is much reason requiring notice of claim; for, in many instances, the carrier otherwise would not have knowledge of the loss. Even in
Why was not the defendant, equally with the plaintiff, accorded every opportunity, before the sheep were unloaded' at destination and before they left the stockyards, to investigate the results of its negligence and ascertain the nature and extent of the" injury inflicted in consequence of such acts? Upon what principle should the carrier, in such case, be excused from exercising any vigilance in such regard until notified by the shipper, and be discharged from all liability if such notice is not given. The facts concerning plaintiff’s damages alleged to have been occasioned by a change in the market could as readily have been ascertained twenty-four days as ten days after the arrival of the sheep at destination. We cannot well see why the presentation of a claim of such a loss was necessary in order that the defendant might properly protect itself, against fraud and imposition, unless it shall be said that in all cases of tort the wrongdoer shall be timely notified of the mischief done by him, in order that he may, while the transaction is fresh, the better investigate the extent of it. But it is said the servants in charge had no means of determining the extent of shrinkage, for such facts could only be determined by a comparison of the weight of the sheep when delivered to the defendant and when they arrived at destination. It is quite true that the extent of such an alleged damage is largely determined from a consideration of such facts; but, in order that the defendant may protect itself from unjust claims, it is not essential that knowledge of all the facts should be possessed by some particular servant or servants in its employ. The facts concerning its alleged negligence of delay were as easily ascertained twenty-four days as ten days after its commission. So was the condition of plaintiffs sheep when delivered to it. Whoever
A further argument made in this connection is that, owing to the vast amount of business conducted by common carriers, and to the impraetibility of immediate supervision over their numerous employees, and to the limited knowledge of the servants as to the nature and extent of injuries, such as here, it is but just that notice of claim should be given before rendering the carrier liable. This position is likewise untenable. It involves the violation of the well-.recog
“The notice stipulated for is not of the fact of damage, more or less, but of the intent to hold the carrier liable for it, which, on failure to give notice, the latter, in view of the stipulation, may well regard as being waived.”
With due regard to the very high standing of that court, we submit that the giving of such a reason begs the question; for it assumes the validity of the contract, the very thing to be demonstrated. Undoubtedly, if the carrier may assume such validity, then it may well act upon the assumption that unless notice is given all claim for damages is waived. If the stipulation is invalid, then upon what theory may it be said that the carrier may regulate its conduct upon it ? Another reason given is stated in Kalina v. U. P. R. R. Co., 69 Kan. 112, 16 Pac. 438, as follows:
“The clause in question is not one exempting the carrier from-its common-law liability, or limiting that liability, but one imposing a condition upon the shipper, which he must observe before he may recover for a breach of the carrier’s duty. In other words, it is a condition of recovery, and not an exemption from liability.”
Such statements tend rather to confuse the proposition than to solve it. They consist of the making of one statement and denying it by asserting another, or the proving of a negative by an affirmative statement of its opposite. That there is a well-recognized distinction between a substantive right or liability, and remedy, though "at times difficult of exact definition, is admitted. The assertion that the liability is not exempted nor limited, but the right of recovery is only con
*190 “They do not relieve carriers from any part of their obligation as common carriers. As such they are bound to the same diligence, fidelity, ,and care as they would be required to exercise if no such stipulation had been made.”
We find these expressions first used by Mr. Justice Strong in the Caldwell Case, where, as we have shown, they were used with respect to a stipulation pertaining to a loss or damage not alleged to have been caused by negligence, but where the carrier was sought to be held liable as an insurer. The expressions were made because the loss and damage sought to be recovered had not been incurred by the negligence of the carrier, and because the stipulation did not pertain to such a loss. We do not think Mr. Justice Strong' intended that the language used by him should apply to a case of damage or injury incurred by the negligence of the carrier. He had no such case before him. Eut let us see whether such language can properly be applied to a case of negligence by ‘the carrier. Why is it against the policy of the law to allow the carrier, by special contract, to exempt itself from, or limit its liability for, negligence ? It is because of the fiduciary relation between the carrier and the shipper, the inequality of their positions, and the duties owing by the carrier to the public. To permit it to make such a contract tends to make it less careful and prompt in the performance of its duties and obligations, and less faithful in the discharge of its trust. Hence the policy of the law forbids such a contract. Now, is it true that a stipulation providing that the carrier shall not be liable for its negligence, whether ordinary, willful, or gross, except upon the presentation of a claim within a specified time, has no bearing or influence upon the exercise of its care and the discharge of its trust? The question is well answered by the statement that, the more stringent the motives are for the exercise of care and diligence, the greater is the probability that the proper degree of care and diligence will be exercised; the less stringent the motives are, the less likelihood that such care will be exercised. It is readily perceived, in many instances, the motive for the exercise of a proper degree of care
Prom the persual of the cases we find no satisfactory reason for the conclusion that the stipulation in question does not affect the liability, nor influence the conduct of the carrier in the discharge of its duties, and is, therefore, not against the policy of ,the law. We are, however, mindful that the views expressed by us are against the great weight of modern authority. We find ourselves in the position where the conclusion reached by us upon what we believe to be fundamental principles is contrary to the conclusion, reached by many able courts upon a consideration of the sáme principles. When we find such to be the case, we confess the confidence in our original position on this point is somewhat shaken. We have therefore come to the conclusion not to rule the case upon the principle so broadly declared in our original opinion. Our holding in this regard is that a stipulation, when fairly entered into and found to be reasonable under all the circumstances, requiring the presentation of a claim for loss or damage, is not in all cases against the policy of the law, and for that reason ineffectual, merely because the claim pertains to a loss or damage occasioned by negligence. It is not necessary to consider the question when such a stipulation will be regarded reasonable and applicable, nor the circumstances under which the shipper is relieved from the giving of notice or presentation of suc-h a claim, because of the further view entertained by us as to the invalidity of the contract before us. As we have seen, undér the general doctrine of this .country, a contract which exempts the carrier from, or limits its liability for, negligence, contravenes public policy. When the contract
After the parties had in unmistakable terms stipulated that there should be no liability for negligence, except for gross or
Upon this record such holding controls the case, and necessarily requires a reversal of the judgment. But these further observations might also be noted: Though the stipulation in paragraph 5 were to be regarded valid, can it be held applicable to the loss or damage sustained by plaintiff because of a change in the market ? The cases seem to hold that stipulations similar in language as is the one here, requiring the presentation of a claim as a condition precedent of the carriers liability, cannot be extended to a loss or damage occasioned by a fall of the market. The reasons for such a conclusion are that “agreements of this character are viewed with some strictness by the law, and unless the exemption from liability is clearly expressed it should not be allowed.” (Railway Co. v. Poole, 73 Kan. 466, 87 Pac. 466), and that such a loss was'
The weight of authority also seems to be that, in an action where there is a plea of a special contract in defense limiting or conditioning the carrier’s liability, the burden is upon the carrier, not only to show a valid special contract, but also to allege and prove facts and circumstances showing the stipulation tobe reasonable. (Ft. W. & D. C. Ry. Co. v. Greathouse, 82 Tex. 104, 17 S. W. 834; Kan. & Ark. Valley R. Co. v. Ayers, 63 Ark. 331, 38 S. W. 515; Cox v. Cent. Vt. R. R., 170 Mass. 129, 49 N. E. 97; Brooks & Sons v. West U. Tel. Co., 26 Utah 147, 72 Pac. 499; Westcott v. Fargo, 61 N. Y. 542, 19 Am. Rep. 300; 6 Cyc. 507-519, and cases; 5 Am. & Eng. Ency. Law, 324-326, and cases; notes to cases, 10 A. & E. R. R. C. (N. S.) 864; notes to cases, 13 L. E. A. 518.) In the case of Railway Co. v. Greathouse, supra, it was said:
“Without determining whether this provision in a contract such as this can in any case he enforced, we do not think the appellant has brought itself within the rules laid down in those cases that permit such contracts to be enforced and that recognize their legality. When such provisions of a carriers’ contract are enforced, it is upon the assumption that such agreement is reasonable, when considered in the light of the subject-matter of the contract and the circumstances and surroundings of the parties. To prove that such conditions in a contract are reasonable is a burden resting upon the carrier, who must show by proper pleadings and evidence the existence of facts that call for an enforcement of the condition. There were no pleadings and proof whatever upon this question coming from the carrier. (Railway v. Fagan, 72 Tex. 132, 9 S. W. 749, 2 L. R. A. 75, 13 Am. St. Rep. 776; Railway v. Harris, 67 Tex. 167, 2 S. W. 574.)”
And in Galveston, H. & S. A. Ry. Co. v. Williams (Tex. Civ. App.) 25 S. W. 1019, it was observed: “It is the answer that must allege such facts as will show that the contract was reasonable in its character.”
“We think no court could intelligently hold that such a provision [the giving of notice at destination to the station agent or some officer of the carrier before the stock is removed from the place of delivery and mingling with other stock] is in and of itself reasonable and valid, regardless of the facts and circumstances surrounding the parties to the contract.” (Baxter v. Louisville R. Co., 165 Ill. 78, 45 N. E. 1003.)
The provision in that case was held unreasonable and invalid, because of the inference from the evidence that the carrier did not have a station agent or officer at the place of destination. To. the same effect are Engesether v. Gt. N. Ry. Co., 65 Minn. 168, 68 N. W. 4; Carpenter v. Eastern Ry. Co., 67 Minn. 188, 69 N. W. 720.
So, too, it has been held that stipulations requiring the presentation of claims at q particular place and within a specified time are not applicable to cases where the nature of the injury or extent of loss cannot be reasonably ascertained within such
These cases but illustrate the rule that what may be a reasonable requirement with respect to the presentation of a claim in one case may be unreasonable in another. There being no allegations nor proof of the reasonableness of the stipulation, the court, on that ground, erred in giving it effect.
Nor the foregoing reasons, the judgment of the court below is reversed, and the cause remanded for a new trial. Costs to appellant.