| Mo. | Oct 15, 1876
delivered the opinion of the court.
This was a suit brought by plaintiff to recover money, alleged to have been lost from a package which defendant had received for transportation. The petition states, in substance, that defendant, as a common carrier, received from plaintiff a package containing $352.35, which he agfeed to transport from Nevada, Yernon county, to Monroe City, Monroe county, and there deliver the same to Andrew Snider, and that for such transportation plaintiff paid defendant the sum of ninety cents; that defendant did not transport and deliver said package safely to said Andrew Snider, but so negligently and carelessly transported the same that there was lost from the package the sum of $100.50. The defendant, by answer, denied all the material allegations of
Plaintiff, in his replication, denies all the allegations of defendant’s answer.
On the trial of the cause, plaintiff offered evidence tending to show the delivery of a package, as charged in his petition, containing $352.35, which was received by defendant for transportation, and for which defendant at the time gave the following receipt :
Adams Express Company.
“Eorml5. $352.35. Nevada, Mo., July 13, 1872. — Received from H. I. Snider one package, sealed, and said to contain currency, addressed Andrew Snider, Monroe City, Monroe county, Mo., upon the special acceptance and agreement that this company is to forward the same to its agent nearest or most convenient to destination only, and then deliver the same to other . parties to complete the transportation ; such delivery to terminate all liability of this company for such package,” etc.
The evidence of plaintiff tended further to show that the package, when delivered at Monroe City, was in good order, but was short of the amount .inclosed in it about $101, containing only $251.25 at the time it came to the hands of the consignee.
The defendant offered in evidence the deposition of Eaulhaber, tending to show that Sedalia was the nearest point of destination to Monroe City for packages shipped from.Nevada to Monroe City by the defendant, and that defendant did not have any line of transportation directly through from Nevada to Monroe City,
The court, at the instance of plaintiff, gave the. following instruction :
“If the jury believe from the evidence that the plaintiff did on the 13th of July, 1872, at Nevada, Vernon County, Mo., deliver, or cause to be delivered, to the agent of defendant, a package of money, containing the sum of two hundred and fifty-two and 35-100 dollars; that the agent of defendant received the same and gave receipt therefor, and received pay to deliver said package to Andrew Snider, at Monroe City, and did not call the attention of H. G. Snider to the underwritten limitations of responsibility in the receipt read in evidence ; that said package was received by Andrew Snider at Monroe City in good order, with a less amount of money in it than when delivered to the agent at Nevada; then the jury will find a verdict for plaintiff for the difference in the amount they may believe from the evidence was placed in the package at Nevada, and the amount in said package at the time of its delivery to Andrew Snider, in Monroe City, and may allow interest on the amount found from the time of demand, made August 5,1872, to the present time, at 6 per cent.”
The court, of its own motion, gave the following instruction; “ The court declares the law to be, that if the plaintiff at the time of delivering the package in question to the defendant’s agent received a receipt .for the said package wherein it .was expressly stipulated that the defendant would not be responsible for the same beyond the station of defendant nearest to Monroe City, and plaintiff’s attention was called to or he knew of such underwritten
■ Exceptions were duly saved by defendant to the action of the • court in giving these instructions.
The following instructions, asked by defendant, were refused by the court, to which defendant excepted: “ The court declares the law to be that if the plaintiff, at the time of delivering the package in question to the defendant’s agent, received a receipt for the said package, wherein it was expressly stipulated that defendant would not be responsible for the same beyond the station of defendant nearest to Monroe City, an,d that when it reached that point defendant was to deliver the package to others to complete the transportation, and that Sedalia was the nearest point on the route of defendant to Monroe City, and that defendant carried said package to Sedalia safely and in good order, and then delivered it to the United States Express Company in good order to complete the transportation, the defendant was not liable any further, and the issues must be found for defendant.”
“2. The court instructs the jury that the defendant in this case, being a common carrier, had the right to limit its responsibility by special contract, and if the jury believe from the evidence that the defendant made a special contract with the plaintiff, whereby it accepted said package upon the express condition that it was not to be responsible for the same beyond its line, and if they find that defendant carried said package safely to Sedalia, the terminus of its route, in the direction to Monroe City, Mo., and then delivered it to another responsible forwarder and carrier, then its responsibility ceased, and defendant is not responsible for any loss happening after that time.”
The above were all the instructions given except one, which declared that it was the duty of plaintiff to prove that the pack
The depositions offered in evidence by the defendant, and'which were rejected by the court, should have been received as evidence. The evidence related directly to the issue involved, and was material to a proper determination of them.
The fact that the package received by defendant for transportation contained the sum of $352.35 at the time he received it Was denied by defendant, and he had a right to negative this fact by proof, which he proposed to do by the evidence offered, in showing that the package when received was securely sealed, and that it was transmitted and delivered just as it was received, in good order, without being broken or mutilated. It was proper that these facts should have gone to the jury, to be considered and weighed by them in determining the question whether the package contained the amount of money charged to have been put in it. The evidence was admissible for another reason. It was shown by the plaintiff on the trial that at the time the package was delivered to defendant, that defendant gave to plaintiff the receipt hereinbefore copied. This receipt contained the stipulation that defendant should only deliver the package to its agent nearest or most convenient to destination, and deliver the same to other parties to complete the transportation, and upon such delivery, all liability of defendant was to terminate. The depositions offered by defendant and rejected by the court tended to prove a compliance on the part of defendant with the above stipulations, and ought therefore to have been read in evidence.
The objection to the instruction given for plaintiff was well taken. The instruction directs the jury in effect that unless the defendant called the attention of plaintiff to the under written limitations of responsibility in the receipt read in evidence, that they were not binding on the plaintiff.
In the case of Coates vs. United States Express Company (45 Mo. 241) the validity of a receipt similar to the one in this case was involved, and the contract contained in it was upheld, and it was declared to be the established law that a carrier may receive
The dicta of the learned judge who delivered the opinion, (45 Mo. 241) that there was no proof of payment for the whole route, was not intended to convey the idea that if there had been proof of payment for the whole route, that fact alone would have the effect to change the rights of the parties under the written contract.
The court committed error in assuming in the instruction that it was the duty of the defendant to call plaintiff’s attention to the stipulations in the receipt before he could be bound by them. The stipulations were contained in the body of the receipt, in a way not calculated to escape observation ; they composed a part of it, were plainly written or printed, and the instrument .itself showed on its face that it was not merely a receipt; and it being accepted by plaintiff in the transaction of the business to which it related, it was his duty to read it, and in the absence of proof of fraud, imposition or deceit, the law presumes he had knowledge of its contents. (Grace vs. Adams, 100 Mass. 507; Belgen vs. Dinsmore, 51 N.Y. 166" court="NY" date_filed="1872-09-05" href="https://app.midpage.ai/document/belger-v--dinsmore-3631555?utm_source=webapp" opinion_id="3631555">51 N. Y. 166.)
The instruction given by the court, of its own motion, ought not to have been given, because, by the exclusion of the depositions offered by defendant, there was no evidence in the ease on which to base it. The instructions asked for by defendant, and refused by the court, were properly refused, because, by the. exclusion of the depositions of defendant, there was no evidence on which to found them. If the depositions offered in evidence had been received, the principles embodied in the instructions asked for by defendant should have been given as the law.
Judgment reversed and cause remanded,