217 Mass. 274 | Mass. | 1914
The plaintiffs in this action had a verdict in the sum of $300 for negligence in the transportation of a horse from Newburyport to Boston. The horse was shipped at Newburyport by a servant of a third person (one Herlihy by name) who shipped the horse to the plaintiffs in their behalf. Herlihy testified that he could not read nor “sign his name.” The defendant produced a contract or bill of lading signed “John Herheley, Shipper, By His mark, Shipper’s Agent F. W. Russell Witness.” The words “Shipper,” "By,” "Shipper’s Agent,” and “Witness” were printed words in a blank used by the defendant in case of the shipment here in question. The other words were written.
On this evidence the defendant asked the presiding judge
It is plain that the plaintiffs were entitled to the full damage done to the horse unless the shipper in behalf of the plaintiffs had entered into a special contract limiting the defendant’s liability.
It is settled: (1) That a special agreement between a shipper and a carrier by which in consideration of the rate charged the value of the property shipped is agreed upon in case of injury or loss, is valid. Squire v. New York Central Railroad, 98 Mass. 239, 245. Graves v. Adams Express Co. 176 Mass. 280. John Hood Co. v. American Pneumatic Service Co. 191 Mass. 27, 29. Johnson v. New York, New Haven, & Hartford Railroad, ante, 203.
It was held in Jones v. Cincinnati, Selma & Mobile Railroad, 89 Ala. 376, that the effect of the acceptance of a bill of lading by a shipper without objection is not affected by the fact that the shipper could not read nor write. To the same effect see Missouri, Kansas & Texas Railway v. Patrick, 144 Fed. Rep. 632, 634, and Schaller v. Chicago & Northwestern Railway, 97 Wis. 31, 42. In these cases the carrier did not know that the shipper was an illiterate person.
Where the shipper signs the bill of lading the carrier has aright to assume that he can read and that he understands what he has signed and so assents to the terms of the writing as a contract. As a matter of business fairness it is not open to the shipper,in such a case to show that he did not read the bill of lading or that he could not understand its terms. In such a case the doctrine of Atlas Shoe Co. v. Bloom, ubi supra, applies. The carrier has the right to make the same assumption when a shipper who cannot
In the case at bar the fact that the shipper’s servant was an illiterate person was brought home to the carrier by the fact that the servant executed the bill of lading by making his mark, and the further fact that the agent who acted for the carrier in arranging for the shipment witnessed the mark so made. Further the shipper’s servant testified that the carrier’s agent “did not read over the live stock contract to him or say anything about it and asked no question as to whether he wanted the high rate or the low rate; that he did n’t know whether the rate which he had was the high rate or the low rate.” And lastly, there was no evidence that the bill of lading ever reached the shipper or the plaintiffs, and so there was no evidence that it was acted upon as the contract under which the horse was accepted by the carrier. It is to be noted that the duplicate original of the bill of lading put in evidence was produced by the defendant.
The presiding judge was right in refusing to rule under these circumstances that as matter of law the shipper in behalf of the plaintiffs had entered into a special contract with the carrier limiting its common law liability.
In accordance with the terms of the report the verdict is to stand; and it is
So ordered.
The case was submitted on briefs.
White, J., who reported the case for determination by this court.