65 Tex. 13 | Tex. | 1886
As a general rule, the consignor, as the agent to whom the owner entrusts his goods to be delivered to the carrier, must be regarded as having authority to stipulate for the terms of transportation. Red. on Car., sec. 52.
Having the power to make the delivery, he is to be presumed to have all the power necessary to carry it into effect. Hutch, on Car., sec. 265.
The carrier is authorized to act upon this presumption in contracting with the agent, and need not inquire into his authority to make the particular shipment.
These principles are so thoroughly settled by the decisions of the courts that it is unnecessary to inquire into the reasons upon which they are founded. Nelson v. R. R. Co., 48 N. Y., 498; Squire v. R. R, Co., 98 Mass., 239; York Co. v. Central R. R. Co., 3 Wall, 107; Moriarity v. Harnden’s Express, 1 Daly, 227; Meyer v. Hamden’s Express, 24 How. Pr., 290.
We think, therefore, that the court did not err in holding that Carney, Stern & Co. were authorized to accept for the appellants the bill of lading upon which this suit is founded.
The question then arises, did the acceptance of the bill of lading constitute a contract valid in law?
Whether the statute of Texas prohibiting common carriers from
It was, in effect, admitted upon the trial that common carriers could, by the law of Missouri, where the present contract was made, place such restrictions upon their common law liability as are contained in the bill of lading upon which this suit is based. The law of our state, in which the contract was in part to be performed, forbidding such restrictions, it is of vital importance to ascertain whether the validity of the contract is to be governed by the law of Texas or that of Missouri.
It is admitted law that when a contract is to be wholly performed within a state, the laws of that state must furnish the rule as to its validity. The parties have their attention drawn to the law of the state in which alone the contract can be broken and liability incurred, and it must be presumed that they intended that their rights and obligations should be determined by the laws prescribed by that state upon the subject. But when the contract is not to be wholly performed in any particular state, but partly performed in the state where it is made and partly in another, or several others, there is difficulty in laying down any rule which can be rested upon principles entirely satisfactory. Hence, there is some diversity of opinion among courts and law writers upon the subject. The foundation principle seems to be that the presumed intention of the parties must govern. If, from all the circumstances surrounding the contract, it is reasonable to suppose that they had in view, at the time, the law of the place of the contract, that must prevail; if the law of the destination of the goods in reference to the carriage of which the agreement, then that law must govern. When there are no circumstances attending the transaction, except the mere execution, delivery and acceptance of the bill of lading, the safest rule by which to arrive at the intention of the parties is that which upholds the contract rather than that which defeats it. Parties to a contract are presumed to intend that it shall be enforced. It is not to be presumed that they deliberately executed an agreement, knowing that it was invalid. The carrier in this case must have intended to secure to itself some real protection from responsibility in the cases excepted in the bill of lading, and the appellee that he should have this protection. By the laws of Missouri it was afforded; by the laws of Texas it was not. To give validity to the contract, and thus carry
This rule also obtains when there is a conflict of laws as to the= capacity of the parties to the contract. Whar. on Conf. of Laws. secs. 101-104, 112-115.
Our views upon this subject are fully sustained by a large majority of the decisions made in England and America. McDaniel v. Chicago R’y Co., 24 Iowa, 412; Talbot v. Merchants Despatch Co., 41 Iowa, 247; Pennsylvania Co. v. Fairchild, 69 Ill., 260; Hale v. Warlo, 15 Conn., 539; 1st Nat. Bank v. Shaw, 61 N. Y., 283; Cantu v. Bennett, 39 Tex., 304; Peninsular R. R. Co. v. Shaw, 3 Moo. P. C., 290; Robinson v. Merchants Despatch Co., 45 Iowa, 470.
In Brown v. Camden and Atlantic R’y Co., 83 Pa. St., 316, the law of the state of performance (New Jersey) was held to govern, because there the railroad company was chartered and had its office, and the whole performance of the contract was to take place in that state, as the Delaware river was no more a portion of Pennsylvania than it was of New Jersey.
The rule we have announced renders it unimportant that the place where the loss occurred was not in the state where the contract was made. See Dike v. Erie Road, 45 N. Y., 113.
It is not to be presumed that the parties intended to divide up their contract so as to have it governed by different laws accordingly as a loss might occur in one or in another state, unless circumstances were proved showing such an intention.
It is objected that a special contract limiting the appellees liability was not evidenced by .the mere receipt of a bill of lading-signed by an agent of the railroad company; but it is said, that to have that character, an agreement should have been signed on the part of the owner of the goods. The generally recognized rule is to the contrary, both in England and America. In the latter, it is generally held that a mere notice displayed in the office of the company, or printed on the bill of lading, will not bind the owner, though brought to his knowledge; but his assent is conclu
The fact, too, that the conditions are printed in small type is of not such importance as to render them void for that reason alone. It would have this effect only when from fraud, or undue advantage on the part of the carrier, or other circumstances, the shipper was prevented from acquainting himself with the conditions. Blossom v. Dodd, 43 N. Y., 264; Camden and Amboy R. R. Co. v. Baldauf, 16 Pa. St., 67; Perry v. Thompson, 98 Mass., 249.
This action was brought against the railroad company for the value of the goods upon an allegation that they were not delivered at their destination, but were converted to the use of the company. The answer was that the goods were destroyed by fire without any negligence on the part of the appellee. The proof was that they were burned at night, in the company’s possession, and in its cars and at its depot, before the transit was completed. The question is, the railroad company being liable if the goods were destroyed by fire through its negligence, was it necessary for the appellants to make on their part any proof upon this subject, or did it devolve upon the company to show that the fire did not occur through its negligence or want of proper care?
This question as to the burden of proof, when a carrier is sought to be made liable for the non-delivery of goods under a special contract like the present, has elicited a contrariety of opinion from the courts of the American Union. Law writers have also been somewhat divided in announcing the principle to be derived from these decisions.
It has never been passed upon by this court, and we feel authorized to adopt that view which seems to be the best supported by principle, regardless of the preponderance of authority upon the subject.
It is said that the rule requiring the plaintiff, after the carrier has shown that the goods were destroyed by fire or other excepted cause, to prove that it occurred through the negligence of the carrier, rests upon the principle that he who avers negligence must prove it. Under an ordinary bill of lading, with no special exceptions, if the goods are lost by the act of God, such as a peril of the sea, the burden is upon the carrier to show that his negligence did not contribute
Tet, the plaintiff asserts negligence in the one case no more than in the other. A carrier by water is as much bound to protect his cargo from fire, though that be within the exceptions of his contract, as he is to construct and managb his vessel and stow his cargo so as to avoid, as much as possible, the dangers of the seas. We cannot see then why he should not account for the manner of the loss, and the causes which brought it about as much in the one case as in the other.
In a suit of this character, it is sufficient for the plaintiff to aver and prove that the goods were delivered to the carrier, and that they have not been received at their point of destination. This is said to make a prima facie case of negligence, which the carrier must rebut or the plaintiff will recover. He may rebut it only in one way, and that is by showing that the goods were lost by one of the exceptions known to the common law, or one of the special exceptions reserved in his contract with the shipper. If, by neither a common law exception, or one specially reserved, he is exonerated, he must show that the loss happened without negligence on his part. Take, for instance, the exception of loss by fire. The contract recites merely that if the loss occurs by fire the carrier should not be liable, but the law incorporates the written words “without negligence on the part of the carrier.” What the law inserts is as much a part of the contract as what is expressly written in it. When, therefore, the plaintiff makes •out a prima facie case of negligence, by proving that the goods were not delivered, is this case rebutted by proof that they were not delivered by reason of a fact which may have existed, and the carrier still have been negligent? If so, he can stop with the presumption of negligence arising from non-delivery still resting upon him, and call upon his adversary to further strengthen his own prima facie case, or it shall lose this character altogether. This would be against all the rules of evidence.
There is another important rule which furnishes additional reasons why the burden of proof to show diligence should be upon the carrier, which is that the burden of proof is on him who best knows the facts. Baker v. Brinson, 9 Rich. S. C., 201; Berry v. Cooper, 28 Ga., 543; 1 Greenl. Ev., 79. Here the fire occurred at night, whilst the goods were in transit, and in care of the appellant’s employes. Who was most likely to know the facts which brought about the fire, or prevented the goods from being saved from the flames, the plaintiff, who was absent, or the employes of the company, who were present? These latter alone could tell whether improper storage, defective
We are aware that a majority of English and American decisions are against this view, and text writers have generally laid down the doctrine in accordance with the most numerous decisions. Mr. Green-leaf, however, in his work on evidence, vol. II, see. 219, states the law to be that “even if the acceptance of the goods is special, the burden of proof is still on the carrier to show not only that the cause of the loss was within the terms of the exceptions, but, also, that there was on his part no negligence or want of due care.” This view is also supported by the following high authorities—to the able opinions delivered in these cases we refer as containing arguments which we need not repeat, but which, in our opinion, are unanswerable: Berry v. Cooper, 28 Ga., 543; Davidson v. Graham, 2 Ohio St., 131; Graham v. Davis, 4 Ohio St., 362; Erie R. Co. v. Lockwood, 28 Ohio St., 358; Gaines v. U. T. Co., 28 Ohio St., 418; Union Ex. Co. v. Graham, 26 Ohio
In those states, where the contrary doctrine is held, the merest scintilla of evidence tending to show neglect is seized upon to throw the burden of proof upon the carrier. Specific acts of negligence can scarcely ever be shown by the owner of the goods; it must, therefore, be presumed from injuries which ordinarily result only from negligence. Bliss on Code PL, sec. 211. A fire would not ordinarily destroy goods upon a train as this did without some negligence on the part of the carrier. The presumptions all being against the appellant, upon the question of negligence, and the proof of care, if it existed, lying wholly in his power, we think, in the absence of evidence on its part to show proper care and diligence, it must be held that the goods were not delivered, but consumed through the negligence of the appellant, and the judgment must accordingly be reversed and the cause remanded, and it is so ordered.
Reversed and Remanded.
[Opinion delivered January 8, 1886,]