217 P. 673 | Mont. | 1923
delivered the opinion of the court.
In their complaint plaintiffs set forth two causes of action. In the first they claim damages for two coats lost through the alleged negligence of the defendant. In the second cause of action they allege that at Devils Lake, North Dakota, for a valuable consideration then paid by them, they deposited with the defendant in its parcel-room for safekeeping two traveling-bags with their contents; that thereafter on the same date they demanded the property, but the defendant failed and neglected to make return, to their damage in the sum of $619.
Issues were joined by reply and the cause was tried with the result that a general verdict was returned in favor of defendant upon the first cause of action, and in favor of plaintiffs upon the second cause of action for $520, with interest thereon from September 15, 1920. A judgment was rendered which in terms awarded to defendant its costs incurred exclusively in defense of the first cause of action, and awarded to plaintiffs damages in the sum of $520 with interest, together with their costs incurred in prosecuting the second cause of action.
In due time defendant presented and filed its memorandum of costs, and plaintiffs moved to strike the memorandum from the files and tax the costs. They also moved the court to amend the judgment ’by eliminating therefrom, the provision awarding defendant any costs. On June, 1922, the court entered an order denying to defendant any costs, but reciting that, since the amount of costs claimed had not been inserted in the judgment, a modification of the judgment was unnecessary.
In its notice of appeal defendant recites that it appeals from the judgment and from the order of June 10, 1922. Plaintiffs have moved to dismiss the appeals. The order of June’10 was, in effect, an order taxing costs within the meaning of section' 9803, Revised Codes of 1921 (State ex rel. Pierson v. Millis, 19 Mont. 444, 48 Pac. 773), and is not appealable, but the ruling of the trial court is reviewable on appeal from the judgment (Ferris v. McNally, 45 Mont. 20, 121 Pac. 889).
The appeal from the judgment, then, presents two questions for determination: (1) The extent of defendant’s liability for the loss of the two traveling-bags, and (2) the right of de
It is conceded, as it must be, that the transaction involving the traveling-bags constituted a bailment for the benefit of both parties, or storage, within the meaning of sections 7660-7672, Revised Codes of 1921, and that in the transaction the defendant was not acting as a common carrier. (Fraam v. Grand Rapids & I. Ry. Co., 161 Mich. 556, 21 Ann. Cas. 96, 29 L. R. A. (n. s.) 834, 126 N. W. 851.) At the time the traveling-bags were deposited in defendant’s parcel-room plain tiffs received a cheek for each bag. Aside from the serial number, each check had printed on it the following:
“Great Northern Railway Company
“Parcel Room Check.
“Devils Lake, N. Station.
“Conditions.
“1. Ten cents for each 24 hours or fraction thereof.
“2. Issues for one parcel only.
“3. Charges collected on delivery.
“4. This company is not responsible for damages to perishable goods or fragile articles.
“5. Liability in ease of loss or damage not to exceed ten dollars.
“6. If a parcel is not claimed within 30 days, it will be sold for charges.
“7. A deposit of 50 cents will be required if this duplicate check is lost. If it is returned within 60 days refund will be made.
“8. One check will be issued for one parcel only. Parcels with articles attached will not be accepted.”
Plaintiff Vernon R. Jones deposited the bags and received the checks, and in doing so acted for his wife as well as for himself. He testified, in effect, that at the time he received the checks he observed that each of them had a number and other printed matter on it extending from the top to the bottom of the cheek; that he had the opportunity to read the
The relationship of bailor and bailee results from contract, express or implied. In the absence of some special agreement, the measure of the bailee’s liability for the loss of the property through its negligence is the reasonable value of the property (Cohen v. Henry Siegel Co., 220 Mass. 215, 107 N. E. 912), but it is permissible for the parties to agree- specially for limited liability so long as the contract itself does not violate the law or contravene public policy (6 C. J. 1112). The correctness of these principles is not called in question, so that we are confronted primarily with the inquiry: Did these parties enter into a special contract which limited defendant’s liability to $10 for the loss of each parcel?
It is elementary that in order to create a contract there must have been a meeting of minds, or, stated differently, there must have been an offer by one party and its unqualified acceptance by the other. Since it was competent for the defendant as warehouseman to prescribe the terms upon which it would render the services contemplated, it may be conceded that by tendering the checks it made an offer to receive and care for the parcels upon the terms expressed by the matter printed upon them, so that the real question, reduced to its simplest forms, resolves itself into this: Did plaintiffs accept the terms thus proposed? If they had received the checks and had read understandingly the matter printed upon them and then retained them without objection, they would be held to have consented to the terms imposed and bound by the pro
Though authorities may be found which, in principle, question the correctness of this rule,-we think it is sound and supported by the better reasoned cases. The instant case, however, does not fall strictly within the group governed by either of the foregoing rules. Counsel for defendant cite Terry v. Southern Ry., 81 S. C. 279, 18 L. R. A. (n. s.) 295, 62 S. E. 249, and Misssouri Pac. R. Co. v. Fuqua, 150 Ark. 145, 233 S. W. 926, in support of their contention that plaintiffs are bound by the provisions for limited liability as a matter of law; but in each instance the court assumed that the special contract limiting liability had been actually entered into between the parties, and there is not any mention made of the facts which constituted an acceptance by the bailor, so that each of these cases properly falls within the rules first adverted to above. The record before us discloses that plaintiffs received the parcel checks and examined them sufficiently to know that there was printed matter upon them. They had the opportunity to examine them critically and the capacity to understand the meaning of the matter printed upon them. They did not read the printed matter and did not know that it contained a provision for limited liability, and if they had known of that provision they would not have stored the parcels with defendant. Clearly, as a matter of fact, plaintiffs did not consent to the provision for limited liability, since they did not know of its existence, and they can be bound by it only upon the theory that it was their legal duty to know the contents of the printed matter; hence are chargeable with notice
A review of the British cases discloses a decided conflict of opinion. In Van Toll v. Southeastern Ry. Co., 12 Q. B. (n. s.) 75, 142 Eng. Reprint, 1071, and Lyons v. Caledonia R. Co., 46 Scott. L. R. 848,, it was held that if the provision for limited liability is plain and obvious the bailor is held, as a matter of law, impliedly to consent to it, whether he read it or did not. In Parker v. Southeastern Ry. Co., 46 L. R. C. P. (n. s.) 768, it was held to be a question of fact whether notice of the limitation of liability o had been brought home to the bailor, who knew that the check contained printed matter but had not read it; and in Harris v. Great Western R. Co., L. R. 1 Q. B. Div. 515, 45 L. J. Q. B. (n. s.) 729, the court declined to say whether the question was one of law or fact, but the judges, sitting as triers of fact as well as of law, held, as a matter of fact, that the bailor in that instance was charged with knowledge of the provision for limited liability and bound thereby. There are very few American cases upon the subject. As indicated above, in Terry v. Southern Ry. and Missouri Pac. Ry. Co. v. Fuqua, the court assumed the existence of the contract for limited liability, and the precise question before us is not mentioned in the opinion in either case.
Counsel for defendant cite Taussig v. Bode, 134 Cal. 260, 86 Am. St. Rep. 250, 54 L. R. A. 774, 66 Pac. 259, which involved an ordinary warehouse receipt given for liquors stored, and which receipt had printed upon it a provision that loss by leakage should be at the owner’s risk. The court held the bailor bound by the provision and said: “It was the duty of respondents to take note of its contents, if they had the opportunity, and their opportunity was ample. The presumption, therefore, is that they did read it. Against this presumption there is no evidence, and none, we think, would have been admissible to show that the respondents had failed to do what their duty required them to do. Assuming, then, that they read the receipt, and, whether they did or not, that they are
That case is not direct authority upon the question before us, for, though it may be said that defendant was acting in the capacity of warehouseman, the checks issued by it are not warehouse receipts as that term is understood generally. Whatever other function they may perform, they are primarily tokens or means of identification which are to be surrendered when the property is redelivered.
In Healy v. New York Cent. & H. R. R. Co., 153 App. Div. 516, 138 N. Y. Supp. 287, affirmed 210 N. Y. 646, 105 N. E. 1086, it was held that where the bailor did not know of the stipulation for limited liability and his attention was not called to it by the bailee, he was not bound. In a concurring opinion Justice Houghton said: “It seems to me that anyone in the ordinary course of business, checking his baggage at such a place, would regard the check received as a mere token to enable him to identify his baggage when called for, and that in no sense would he have any reason to believe that it embodied a contract exempting the bailee from liability or limiting the amount thereof. If the plaintiff knew that the defendant had limited its liability to $10, either by his attention being called to it or otherwise, then, of course, the law would deem him to have assented to it, so that a binding contract would be effected. If he did not know it, I think the law imposed no duty upon him to read his check to find whether or not there was a contract printed thereon, or that he was guilty of neglect in not so reading it, because he had no reason to apprehend that a contract was printed thereon.”
The facts in Dodge v. Nashville, C. & St. L. Ry. Co., 142 Tenn. 20, 7 A. L. R. 1229, 215 S. W. 274, cannot be distinguished from the facts of the instant ease. Dodge and his
Speaking in general terms, we agree with this conclusion. If the bailee does not call attention to the provision for limited liability and the bailor does not have actual knowledge of its existence, he is not bound by it, unless his course of conduct is such as to lead the bailee, as a reasonable person, to believe that he assents to the provision; and the mere fact that he retains the check without objection does not, as a matter of law, constitute such conduct, and in the absence of notice from the bailee that the check contains provisions which are intended to become a part of the contract, the bailor is not under legal •duty to read whatever inscription may be upon it.
2. Costs eo nomine were not recoverable by either party at common law. They are the creatures of statutes, and in this state the defendant’s right to recover costs must be made to depend upon our Code provisions. (Spencer v. Mungus, 28 Mont. 357, 72 Pac. 663.)
By enumerating the particular instances in which costs may be apportioned, the statute impliedly excludes the right of apportioning them in any other instances, under the familiar maxim, Expressio unius est exclu-sio alterius, and since plaintiffs recovered a judgment exceeding $50, they were entitled to costs under section 9787, and the court properly struck defendant’s memorandum from the files.
The hardship of this rule of which defendant complains is made manifest, and the argument in favor of a different rule might, with propriety, be addressed to the legislative assembly, but, in the absence of statutory authority, the courts have no discretion in adjudging costs. (Montana Ore Pur. Co. v. Boston & Mont. etc. Co., 27 Mont. 288, 70 Pac. 1114.)
In several states statutes have been enacted to cover cases of this character; for instance, section 14402, Howell’s Michigan Statutes, provides: “Where there are two or more distinct causes of action in separate counts, the plaintiff shall recover costs on those issues which are found for him, and the defendant on those which are found in his favor.” The general rule, however, is stated as follows: “Unless there is statutory author
Section 8167, Revised Statutes of Nebraska of 1913, declares: “Where it is not otherwise provided by this and other statutes, costs shall be allowed of course to the plaintiff, upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific real or personal property.” Section 8168 provides that plaintiff shall not recover costs iu certain enumerated cases. Section 8169 provides “Costs shall be allowed of course to any defendant upon a judgment in his favor in the actions mentioned in the last two preceding sections.” Section 8170 declares that the costs may be apportioned in other cases. In International Harvester Co. v. Schultz, 102 Neb. 753, 169 N. W. 428, the construction of these statutes was before the court in an action in which plaintiff’s complaint stated forty-four separate causes of action, but in which it recovered upon only sixteen. In disposing of the question presented the court said: “Each of the forty-four notes was separately stated as a cause of action. While the suit was pending twenty-eight of the notes were paid to plaintiff by the respective makers, and as to such notes the causes of action were dismissed and judgment was rendered for plaintiff on the remaining notes. Defendant argues that, because the suit was dismissed as to the notes paid,, a part of the costs should therefore be taxed to plaintiff. His contention cannot prevail. The power of courts to award and tax costs in legal proceedings was unknown at the common law, (Bran
The several provisions of our statutes governing costs must be construed together and, thus construed, section 9788 must be held to apply only in an action wherein the defendant recovers a judgment and the plaintiff is altogether unsuccessful.
The authorities cited by defendant upon this branch of the case are not in point, as the most casual reading will demonstrate. In Louisville & N. R. Co. v. Cofer, 110 Ala. 491, 18 South. 110, there is not any statute cited, and the only authority for apportioning the costs in that'case is 1 Chitty’s Pleading, section 426, erroneously cited as 412. In United States v. Minneapolis, St. P. & S. S. M. Ry. Co. (D. C.), 235 Fed. 951, the court followed the Minnesota statute and awarded the costs to plaintiff as the prevailing party. In St. Louis S. W. Ry. Co. v. Oliver (Tex. Civ. App.), 37 S. W. 642, plaintiff’s complaint stated two separate causes of action for damages. The trial court found for defendants as to the first cause of action, and in favor of plaintiff upon the second cause of action. The court of civil appeals of Texas disposed of the question of costs by saying: “We are clearly of the opinion that all costs that accrued by reason of plaintiff’s claim for damages alleged to have been suffered in November, 1894 [first cause of action] should have been taxed against the plaintiff.” No statute or other authority is cited in support of the conclusion. In Allison v. Thompson, 2 Swan (32 Tenn.), 202, reference is made to the statute, which provided: “In all actions * * * the party in whose favor judgment shall be given, or in case of a nonsuit, * * * the defendant shall be entitled to full costs.” (Acts 1794, Chap. 1, sec. 74.) The court said: “The statute intends that if the plaintiff succeed in his demand, he shall have costs as an incident; but if he fail, he
Plaintiffs’ motion to dismiss the appeal is overruled and the judgment is affirmed.
Affirmed.