97 Wis. 31 | Wis. | 1897
The following opinion was filed June 24, 1897:
Several errors are assigned on this appeal, all of which have received careful consideration, and will be noticed in this opinion in their order.
1. That the circuit court erred in allowing defendant to amend its answer on the trial by setting up as a defense-that by the law of Illinois the extraordinary liability of a common carrier of goods terminated when the goods arrived at their destination and were deposited in the defendant’s warehouse; and as a further defense that the goods-were received for shipment under an express contract to the effect that the defendant should not be liable for any loss occasioned by fire. Trial courts have large discretionary power to allow amendments to pleadings on the trial, and if, in the exercise of such power, a defendant is allowed to-bring in additional defenses, the ruling in that regard cannot be disturbed, except for a clear abusó of discretion; and. unless, from the nature of such additional defenses, it manifestly appears that the plaintiff must have been prejudiced, it must be made to appear affirmatively, in order to present the question for consideration on appeal. If the plaintiff in this case was not prepared to proceed with the trial because of' the amendment, he should have made that fact appear to the trial court by affidavit; and, if the amendment was then.
2. That the court erred in admitting in evidence the bill of lading. The parties stipulated, for the purposes of the trial, that the property was delivered to defendant at Yerona, Wisconsin, for shipment to Chicago; that it arrived there; that it was unloaded and placed in defendant’s warehouse, and was, on the night thereafter, destroyed by fire, with such warehouse. To prove that the contract of shipment exempted defendant from loss by fire, the bill of lading was offered in evidence. The evidence was objected to because of the stipulation of facts. The objection was overruled, and that is assigned as error. Manifestly, a stipulation of facts made for the purposes of a trial, unless clearly intended to cover the whole case, does not preclude either party from giving evidence tending to establish other facts pertinent to the issues, not inconsistent with the facts agreed upon by the stipulation. It was upon that ground, obviously, that the objection to the admission of the bill of lading was overruled by the trial court. That such ruling was right does not admit of serious discussion.
3. That the bill of lading was void for want of a consideration. This assignment of error is grounded on the familiar doctrine that any contract limiting the common-law liability of a- common carrier, to be valid, must be supported by a consideration. It is not seriously, contended but that a valid
On the particular question raised, the great weight of authority is in favor of the proposition that, to support a contract limiting the liability of a common carrier, a consideration is necessary, and that, if the charges and services rendered, as a rule, are the same in all respects without as with the special contract, such contract is void for want of a consideration. York Co. v. Central Railroad, 3 Wall. 107; Louisville & N. R. Co. v. Oden, 80 Ala. 38; Nelson v. H. R. R. Co. 48 N. Y. 498. Rut the presumption is that the rates for the carriage of goods are made having regard to
The next assignment of error is that the findings of fact are contrary to the law and the evidence. Several reasons are given to support this contention, one of which is that,
Without indulging in an extended discussion of authorities that where a common carrier relies upon an exemption by contract from liability it is not sufficient to bring him within such exemption merely to show that the loss accrued thereby, but that he must, in addition, make & prima facie case of freedom from negligence contributing to the loss, Brown v. Adams Exp. Co. 15 W. Va. 812; Berry v. Cooper, 28 Ga. 543; Union Exp. Co. v. Graham, 26 Ohio St. 595; U. S. Exp. Co. v. Backman, 28 Ohio St. 144, and many others cited by appellant’s counsel, are in point. Black v. Goodrich Transp. Co. 55 Wis. 319, and Browning v. Goodrich Transp. Co, 78 Wis. 391, counsel cite to the same point, but a careful reading of those cases fails to disclose any reason for such citation. In Black v. Goodrich Transp. Co., supra, it was held, in effect, that the presumption is that the carrier of goods is under the common-law responsibilities, and that the burden of proof is upon him who seeks to avoid such responsibilities to show that there was a contract to that effect; and in Browning v. Goodrich Transp. Co., supra, it was held that where a contract required goods to be transported and landed on a dock, without liability, however, for
In Clark v. Barnwell, 12 How. 272, the language of the contract excepted the carrier from liability for losses from “ the •dangers of the sea.” The evidence showed that the loss was caused by one of the excepted perils. In discussing the subject under consideration, Mr. Justice NelsoN said: “After the damage to the goods has been established, the burden lies upon the respondents to show that it was occasioned by one of the perils from which they were exempted by the bill of lading. Nevertheless, the shipper may still recover by showing that the exercise of reasonable care and skill on •the part of the carrier would have avoided the loss, for in that case the loss would have been attributed, not to the perils of the seas, but to inattention to duty on the part of the servants of the carrier; but in that stage of the case the burden is upon the shipper to establish negligence of the •carrier by affirmative evidence.” This was followed in Transportation
This is an important commercial question, upon which this court has not, up to this time, as heretofore stated, expressed an opinion. Therefore it is considered that we should follow the- rule laid down by the supreme court of the United States in Clark v. Barnwell, supra, and since followed by all the federal courts,— that is to say, that the common carrier of goods, by a special contract, may limit the liability imposed by the common law, other than for losses by negligence or misconduct, and in an action by the shipper to recover of the carrier for loss of goods during the performance of the contract of carriage, proof on the part of the latter that such loss accrued through one of the excepted perils constitutes, prima facie, a complete defense to the action, and such defense can only be avoided by proof that negligence on the part of the carrier directly contributed to such loss; the burden of establishing the facts in that regard being on the plaintiff. All mere presumptions of fault on the part of the carrier are overcome by proof of the special exemption from liability, and that the loss ac
It is further contended, under the fourth assignment of error, that the contract was not binding upon plaintiff, because he did not know or consent to its provisions. Erom the delivery and acceptance of the bill of lading at the time the goods were delivered to defendant for shipment, the presumption arises that plaintiff assented to it. Boorman v. Am. Exp. Co. 21 Wis. 152; Strohn v. D. & M. R. Co. 21 Wis. 554; Louisville & N. R. Co. v. Brownlee, 14 Bush, 590. Such is the general rule. The presumption is not conclusive, but mere ignorance of the contents of the bill of lading, arising from failure to read it or to make some reasonable •effort to obtain information in that regard, in the absence of any evidence of fraud on the part of the defendant or of the use of any means to deter the shipper from fully understanding the contract, is not sufficient to overcome it. While in some jurisdictions an express assent is necessary, or proof of knowledge of the special stipulations inconsistent with
The foregoing covers all the questions necessary to be decided on this appeal. Whether, by the law of Illinois, the contract of carriage terminated before the fire, was discussed by counsel, but the trial court did not make any finding of fact in respect to such law, and did not consider that question in coming to the legal conclusions complained of. As the result of the foregoing is that the judgment must be affirmed on the grounds upon which the learned circuit judge placed it, it is not deemed necessary to consider any further question.
By the Court.— The judgment of the circuit court is affirmed.
On a motion for a rehearing the appellant contended that the rule permitting carriers to exempt themselves from common-law liabilities had been abrogated by the interstate ■commerce law, so far as it applied to carriers engaged in interstate commerce. Wehmann v. M., St. P. S. S. M. R. Co. 58 Minn. 22; Mobile & O. R. Co. v. Dismukes, 94 Ala. 131; Southern Wire Co. v. St. Louis B. & T. Co. 38 Mo. App. 191; Gerber v. Wabash R. Co. 63 id. 145.
The motion was denied September 28, 1897.