| Kan. | Jul 15, 1883
The opinion of ,the court was delivered by
It is contended on the part of plaintiff in error, that as the horse was transported by the railroad company under a special written contract entered into between the company and one William Towne, that Towne was the only person authorized to sue for a breach thereof, aud that the plaintiff could not recover. • Notwithstanding the fact that the railroad company contracted with Towne alone, and had no knowledge that Towne-was acting merely as agent of Simpson, Simpson was in fact “the real party in interest,” and could maintain an action for any loss sustained by him under the contract.
It is well settled in this state, that where a contract is made by an agent for the benefit of his principal, the principal may sue on the contract; and this is so, even where the contract is made in the name of the agent and the principals
“If the customer had any real freedom of choice; if he had a reasonable and practicable alternative, and if the employment of a carrier were not a public one, charging him with the duty of accommodating the public in the line of his employment, then, if the customer chose to assume the risk of negligence, it could with more reason be said to be his private affair and no concern of the public; but the condition of things is entirely different, and especially so under the modified arrangements which the carrying trade has assumed. The business is mostly concentrated in a few powerful corporations whose position in the body politic enables them to control it. They do in fact control it, and make such conditions on the travel and transportation as they see fit, which*651 the public is compelled to accept. Thése circumstances furnish an additional argument, if any were needed, to show that the conditions imposed by the common carrier ought not to be adverse, to say the least, to the dictates of public policy and morality. The statute and relative position of the parties render any such conditions void. . . . Conceding, therefore, that special contracts made by common carriers with their customers, limiting their liability, are' good and valid so far as they are just and reasonable, to the extent for example, of excusing them for all loss happening by accident without any negligence or fraud on their part; when they ask to go still further and to be excused for negligence — an excuse so repugnant to the law of their foundation and to the public good — they have no longer any plea of justice or reason to support such stipulation, but the contrary.”
In Missouri, where the bill of lading ,or contract was signed, the law is, that while a common carrier may limit his liability by contract, he cannot exempt himself from that responsibility which every bailee assumes for ordinary care and common honesty. (Lawson on Carriers, §50.)
In Levering v. Union Transportation &c. Co., 42 Mo. 88" court="Mo." date_filed="1867-10-15" href="https://app.midpage.ai/document/levering-v-union-transportation--insurance-8002343?utm_source=webapp" opinion_id="8002343">42 Mo. 88, it is said:
“The argument in favor of the right of the carrier to vary his liability by introducing conditions into his acceptance, is founded on a misconception in considering that his liability is voluntary, and arises ex contractu. The law attaches the responsibility to his employment or calling, and if he assumes that calling he has no power over the duties which the law annexes to his calling. His assuming the character of a common carrier depends entirely on his own will or assent; but if he undertakes that occupation, the liabilities which come upon him in respect to goods brought or borne to him to be carried, are imposed by law, and not created by assent or agreement.”
James, J., used the following language in an unreported case of the supreme court of the District of Columbia:
“The principle of law which for considerations of public welfare forbids a common carrier to bargain in particular cases for complete exemption from responsibility for a viola-tion of his duties, forbids him to impair his obligations to the community by bargaining in particular cases for an exemption*652 from a considerable part of that responsibility. The ground on which the rule is based, that even the shipper’s perfect consent cannot relieve the carrier, is that the object which he undertakes to regulate by contract is not his own, but a public right. . . . The principle .of the rule is, that any agreement which operates to interfere with a public right, touching the character and good faith of common carriers, is an agreement against public policy and welfare, and is therefore void; and as an agreement that his negligence shall be cheap must operate in this way, it necessarily falls within that principle.”
(Galt v. Express Co., S. C. D. C. MSS.; Lawson on Carriers, 434, 435. See also Coggin v. Rly. Co., 1.2 Kan. 416" court="Kan." date_filed="1864-02-15" href="https://app.midpage.ai/document/hadley-v-brown-7882034?utm_source=webapp" opinion_id="7882034">2 Kas. 416; Rld. Co. v. Caldwell, 8 id. 244; Rly. Co. v. Regnolds, 8 id. 623; Kallman v. Express Co., supra; Rly. Co. v. Nichols, 9 id. 235; Rly. Co. v. Piper, 13 id. 505; Rld. Co. v. Maris, 16 id. 333; The “Emily” v. Carney, 5 id. 645; Rly. Co. v. Peavey, 29 id. 169.)
/ While the provision in a bill of lading or contract between the shipper and carrier, that the latter .will not be liable beyond a certain sum expressed in the contract, may be valid to limit the liability of the carrier as an insurer, a condition of this character which seeks to cover the negligence of the carrier is void; therefore, the direction of the trial court was not erroneous.
j The present case furnishes a strong illustration of the oppression and injustice of a contrary doctrine. Simpson, the owner of the horse, sent his rider, Towne, a boy, to ship the horse to St. Joseph, Missouri, and enter him in the races there. He did not authorize him to fix any limitation on the value, in transporting him, and the horse was worth more than $300. The agent of the company shipping the animal supposed' the horse was fancy stock, or a race horse, and without any inquiry as to its actual value, arbitrarily inserted in the bill of lading, “Value not to exceed $100.” Towne told the agent that he did not want the contract limited, but afterward signed it with the clause inserted. Acccording to the testimony of the agent, the rules of the
The other questions submitted have been fully examined, but we do not think it necessary to comment thereon, as it is clearly shown from the evidence that the agent knew that the horse was going to the fair at St. Joseph, and considered it more valuable than ordinary stock at the time of giving the bill of lading.
The judgment of the district court must be affirmed.