2 Mo. App. 369 | Mo. Ct. App. | 1876
delivered the opinion of the court.
‘ ‘Adams Express Company. Great Eastern, W estern, and .Southern Express Forwarders. Form 14. [Domestic Bill -of Lading.] St. Louis, Mo., December 24,1872. Received of Prince & Kirby, one trunk. Value, $-. For which this company charges $-•. Marked J. W. Kirby & •Co., Bethel Station, Tenn.
“ Which it is mutually agreed is to be forwarded to our Agency nearest or most convenient to destination only, and there delivered to other parties to complete the transportation.
“ It is part of the consideration of this contract, and it is agreed, that the said express company are forwarders only, and are not to be held liable or responsible for any -loss or damage to said property while being conveyed by the carriers to whom the same may be by said express company intrusted, or arising from the dangers of railroads, ocean, or river navigation, steam, fire in stores, depots, or in transit, leakage, breakage, or from any cause whatever, unless in every case the same be proved to have occurred from the fraud or gross negligence of said express company or their servants ; nor in any event shall the holder hereof demand beyond the sum of fifty dollars, at which the Article forwarded is hereby valued, unless otherwise herein expressed, or unless specifically insured by them, and so specified in this receipt, which insurance shall constitute the limit of the liability of the Adams Express Company. And if the same is intrusted or delivered to any other ■express company or agent (which -said Adams Express Company are hereby authorized to do), such person or company so selected shall be regarded exclusively as the
“ E. W. Hassell.”
Appellant denies the loss of the trunk and contents; denies all carelessness and improper conduct; denies that it was a common carrier; asserts that it received the trunk and contents under the agreement sued on, and subject to its express conditions, amongst which were those that it ■accepted no other liability than that of a forwarder; and that, as the value of the trunk and contents were not stated, it was in no event to be held liable for more than $50, at which sum the parcel was valued.
The replication denies all new matter in the answer.
The court, at the instance of respondents, granted instructions which substantially declare : That appellant — if, being publicly engaged in transporting goods for hire, it received' respondents’ goods for transportation — was a common carrier in this case ; that, if appellant was a common carrier, it must account for these goods, and, if they were lost while in its possession as a common carrier, the law presumes they were lost through the carelessness and negligence of appellant, unless it show the contrary; and that, if appellant was a common carrier, and the goods were lost through its carelessness-and negligence, then it was liable for the full value of the goods.
App ell ant' asked instructions limiting the recovery to $50, stating that, if the receipt contained no specified value of the goods, only $50 could be recovered, laying the burden of proof of carelessness on respondents, and to the effect "that, under the contract, appellant had no liability but that •of a forwarder.
These instructions were refused, but the following instruct Nous were granted at defendant’s instance :
“If the jury believe from the evidence that the receipt in evidence was given by defendant to the plaintiffs at the
There was a verdict and judgment for $151.75, the full value of the trunk and contents. The case is brought here, by defendant, by appeal.
It is strongly insisted by appellant that this is not a question of notice limiting the carrier’s liability; that the receipt executed by appellant, and deliberately, and with full knowledge and understanding of its contents, and freely, accepted by respondents, constituted a contract between-them, to the terms of which they are, both by reason and authority, to be strictly held. The value of the contents was not disclosed, and, as in the analogous case of a valued policy, the amount of risk being fixed by agreement, that amount is the measure of recovery in this case.
The point made in the case is one of the greatest importance to the business community. The decisions'on the subject have not been uniform, and are not now accordant; and the current of decisions and legislative enactments, both in. England and America, shows that the most opjiosite views of public policy in this matter have prevailed amongst legislators and jurists at different periods.
There is no doubt at all that, wherever the common-law prevails, the rule that all persons following the occupation of carrying goods for hire, by land or Avater, are common carriers, and liable, except for inevitable accidents, has been maintained in all its most Avholesome vigor. But the doctrine that special acceptances limit responsibility of carriers — at first timidly urged, and vieAved Avith disfavor — at last, by repeated adjudications, grew into a system, and this under the observation and sanction of the legislature, which, by repeated enactments, from 2 George II. to-53 George III., alloAved the rule to be relaxed by special contracts created by bills of lading, until, in this century,.
The common-law rule was: “A politic establishment contrived by the policy of the law,” as Lord Holt declared, ‘£ for the safety of all persons the necessity of whose affairs oblige them to trust this soi’t of persons, that they may be safe in their way of dealings; ’ ’ and Lord Mansfield said that, ££to prevent litigation, confusion, and the necessity of going into circumstances impossible to be unraveled, the law presumes against the carrier, unless he shows the loss was caused by the King’s enemies or a tempest; and in case of robbery it holds him liable, of which the true reason is, for fear it may give room for collusion — that the carrier may contrive to be robbed on purpose to share the spoil.”
In the case at bar the carrier seeks, by the terms of the receipt which he gives, to limit his responsibility to the sum of $50, and to change his common law-liability, w'hich is that of an insurer, to the liability of an ordinary bailee for hire.
In Gould v. Hill, 2 Hill, 623, it was decided in New York that this cannot be done, and in Georgia and Ohio the same doctrine was laid down, but the Supreme Court of the United States, in N. J. Steam Navigation Company v. Merchants’ Bank, 6 How. 344, denied the doctrine of Gould v. Hill, which was subsequently overruled in New York; and it is now almost universally held in America that such contracts are valid. The strict rule has also been abandoned in England, and such contracts are sanctioned there. And the doctrine is now too well established in this state to be shaken that a common carrier can by special contract limit his liability at common law. Read v. St. Louis, Kansas City & Northern Railway Company, 60
Without denying that cases may daily arise in which these pointed receipts, thrust into the hands of a hurried traveler,, constitute no contract limiting the carrier’s liability, for want of intelligent, free, and fair assent, there can be no question that the liability of appellant in this case was in fact limited by the receipt received by the consignor. Appiellant remained a common carrier, but, in this instance, his common-law liability was restricted — so far as it might be lawfully restricted — by contract.
There was, I think, sufficient proof of actual negligence in this case to warrant the finding of the jury; but that is not material, because a presumption of negligence would -arise from the mere fact of the loss. There can be but little doubt as to what is the doctrine in this State on the subject. A common carrier may, by contract, restrict his liability as an insurer, but his duties as a common carrier do not originate in contract, and he will not be permitted, whilst acting as a common carrier for hire, to shirk the responsibilities which the law affixes to his calling, and to .assume the position of an ordinary bailee. The law still holds him to a higher degree of care than that required of a private carrier; and the rule of evidence which, for the wisest reasons, has been adopted in his regard, must still prevail. The consignor does not accompany his goods; the carrier does. The carrier must account for them, and if they are lost, whatever agreement he may have made with the owner, the law will presume that they are lost by his fault, and, in the - absence of testimony to rebut this presumption, he must pay their value. This doctrine seems to be clearly laid down in Levering v. Union Transportation and Insurance Company, 42 Mo. 88, and the point is expressly decided in Ketchum v. American Merchants’ Union Express Company, 52 Mo. 391.
We see no error committed by the Circuit Court of which appellant can complain. The instruction given for defend
The judgment of the Circuit Court is affirmed.