115 Mass. 304 (Mass. 1874), Hoadley v. Northern Transp. Co.

Citation:115 Mass. 304
Opinion Judge:Colt
Party Name:John C. Hoadley v. Northern Transportation Company
Attorney:D. S. Richardson, for the defendant. E. Merwin, for the plaintiff.
Judge Panel:Colt, J. Wells & Endicott, JJ., absent.
Case Date:June 22, 1874
Court:Supreme Judicial Court of Massachusetts

Page 304

115 Mass. 304 (Mass. 1874)

John C. Hoadley

v.

Northern Transportation Company

Supreme Court of Massachusetts

June 22, 1874

Suffolk. Tort for the conversion of a steam-engine delivered to the defendant for carriage under a bill of lading, containing an exception of losses by fire, and destroyed by fire at the place of the delivery to the carrier, while in his custody.

At the trial before Devens, J., the jury found for the plaintiff, and in answer to questions put to them by the presiding judge stated that they found for the plaintiff upon the ground that he did not assent to the exception against losses by fire in the bill of lading, and also upon the ground that the defendant negligently omitted to forward the engine. The defendant alleged exceptions to certain rulings of the presiding judge, which with the facts of the case appear in the opinion of the court.

Exceptions sustained.

D. S. Richardson, for the defendant.

E. Merwin, for the plaintiff.

Colt, J. Wells & Endicott, JJ., absent.

OPINION

Colt

Page 305

The plaintiff seeks to recover in tort against the defendant as a common carrier for the loss of a steam-engine which it had undertaken to transport from Chicago, Illinois, and deliver to him at Lawrence in this state. The engine was destroyed at Chicago in the great fire of 1871, and one question at the trial was, whether by the terms of the contract of transportation the defendant was liable for this loss.

The plaintiff put in the bill of lading received by his agent at Chicago of the defendant at the time the property was delivered for transportation. It is in the usual form, and the terms and conditions are expressed in the body of the paper in a way not calculated to escape attention. In one clause it exempts the defendant from all liability for loss or damage by fire; in another from all liability "for loss or damage on any article or property whatever by fire while in transit or while in depots or warehouses or places of transshipment," and further provides that the delivery of the bill of lading shall be conclusive evidence of assent to its terms.

It was assumed by both parties as now settled that a common carrier may by special contract avoid or limit his liability at common law as an insurer of property intrusted to him against loss or damage by fire occurring without his own fault. Such is the declared law of this Commonwealth, and the Illinois cases produced at the trial assume that the same rule prevails there. An express contract, once established, is in both states effectual

Page 306

to limit the carrier's liability. But the plaintiff contended that by the law of Illinois, as declared in the courts of that state, the mere receipt, without objection, of a bill of lading which limits the carrier's common law liability for loss by fire, would not raise a presumption that its terms were assented to, but such assent, if relied on, must be shown by other and additional evidence. The jury have found this to be the law of that state, under instructions not objected to, and we are not required to say whether there was sufficient evidence to warrant the finding. Adams Express Company v. Haynes, 42 Ill. 89. American Express Company v. Schier, 55 Ill. 140, 150. Illinois Central Railroad v. Frankenberg, 54 Ill. 88, 98. The court ruled that this law of Illinois must govern the case, and that under it the jury could not find that the mere receipt of the bill of lading would be evidence of assent to its terms.

The law of this Commonwealth differs from the law of Illinois as thus found. In ...

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