Kirby v. Adams Express Co.

• Decision Date: 06 June 1876
• Citation: 2 Mo.App. 369
• Parties: J. W. KIRBY et al., Respondent, v. ADAMS EXPRESS COMPANY, Appellant.
• Court: Missouri Court of Appeals

2 Mo.App. 369

J. W. KIRBY et al., Respondent,

v.ADAMS EXPRESS COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 6, 1876.

1. All persons following the occupation of carrying goods by land or water are common carriers.

2. A common carrier, by special contract, can limit his liability at common law; but, notwithstanding the special contract, he remains a common carrier with his common-law liability restricted, in so far as it may be lawfully restricted by the contract.

3. A clause in a contract between an express company and a shipper stated that goods shipped are of the value of $50, unless their value should be inserted in the contract, and that the company, in case of loss, would not be liable for more than $50 unless the value was so inserted, and the value of the goods was not inserted. Held, that this did not relieve the company from liability for the full value of the goods if lost through its fault, and that a presumption of negligence arose from the mere fact of loss.

4. A common carrier may, by contract, restrict his liability as an insurer, but he will not be permitted to assume the position of an ordinary bailee; the law still holds him to a higher degree of care than that required of a private carrier, and the rule as to the burden of proof still prevails; and, if the goods are lost, whatever may have been the agreement with the shipper, the law will presume that they were lost through the fault of the carrier, unless the carrier show the contrary.

5. As the law compels the carrier to take goods for transportation, it may be difficult to see what consideration there is to support a contract for a release of the carrier from responsibility, yet it is a matter with which the courts can no longer deal.

APPEAL from St. Louis Circuit Court.

Affirmed.

S. M. Breckinridge, for appellant, cited: Railroad Co. v. Lockwood, 17 Wall. 357; Wolf v. American Express Co., 43 Mo. 426; Behme v. Adams Express Co., 25 Md. 328; Boorman v. American Express Co., 21 Wis. 152; New-burger et al. v. Howard & Co.'s Express, 6 Phila. Rep. 174; Newstadt v. Alvin Adams, 5 Duer, 43.

Silas B. Jones, for respondents, cited: Levering v. Union Trans. & Ins. Co., 42 Mo. 88; Wolf v. American Express Co., 43 Mo. 421; Davidson v. Graham, 2 Ohio St. 131; Graham v. Davis, 4 Ib. 363; Bondenham v. Bennett, 4 Price, 31; Beck v. Evans, 16 East, 244; Chitty on Car. 141; 2 Stark. on Ev. 205; Story on Bail., sec. 590; American Express Co. v. Sands et al., 55 Pa. St. 140; Orn-dork & Co. v. Adams Express Co., 3 Bush, 194; Southern Express Co. v. Moon, 39 Miss. 822.

BAKEWELL, J., delivered the opinion of the court.

Respondents sue for the value of a trunk and contents, delivered by respondents to appellant for transportation. At the time of the delivery of the trunk, appellant delivered and respondents accepted a receipt, being a printed form used by the express company, which, the blanks being filled up, read as follows:

“Adams Express Company. Great Eastern, Western, and Southern Express Forwarders. Form 14. [Domestic Bill of Lading.] St. Louis, Mo., December 24, 1872. Received of Prince & Kirby, one trunk. Value, $____. For which this company charges $____. Marked J. W. Kirby & Co., Bethel Station, Tenn.

Which it is mutually agreed is to be forwarded to our agency nearest or most convenient to destination only, and there delivered to other parties to complete the transportation.

It is part of the consideration of this contract, and it is agreed, that the said express company are forwarders only, and are not to be held liable or responsible for any loss or damage to said property while being conveyed by the carriers to whom the same may be by said express company intrusted, or arising from the dangers of railroads, ocean, or river navigation, steam, fire in stores, depots, or in transit, leakage, breakage, or from any cause whatever, unless in every case the same be proved to have occurred from the fraud or gross negligence of said express company or their servants; nor in any event shall the holder hereof demand beyond the sum of fifty dollars, at which the article forwarded is hereby valued, unless otherwise herein expressed, or unless specifically insured by them, and so specified in this receipt, which insurance shall constitute the limit of the liability of the Adams Express Company. And if the same is intrusted or delivered to any other express company or agent (which said Adams Express Company are hereby authorized to do), such person or company so selected shall be regarded exclusively as the agent of the shipper or owner, and as such alone liable, and the Adams Express Company shall not be, in any event, responsible for the negligence or non-performance of any such company or person; and the shipper and owner hereby severally agree that all the stipulations and conditions in this receipt contained shall extend to, and inure to the benefit of, each and every company or person to whom the Adams Express Company may intrust or deliver the above-described property for transportation, and shall define and limit the liability therefor of such other company or person. In no event shall the Adams Express Company be liable for any loss or damage, unless the claim therefor shall be presented to them in writing at this office, within thirty days after this date, in a statement to which this receipt shall be annexed. All articles of glass, or contained in glass, or any of a fragile nature, will be taken at shipper's risk only; and the shipper agrees that the company shall not be held responsible for any injury by breakage or otherwise, nor for damage to goods not properly packed or secured for transportation. It is further agreed that said company shall not in any event be liable for any loss, damage, or detention caused by the acts of God, civil or military authority, or by rebellion, piracy, insurrection, or riot, or the dangers incident to a time of war, or by any riotous or armed assemblage. If any sum of money, besides the charge for transportation, is to be collected from the consignee on delivery of the above-described property, and if the same is not paid within thirty days from the date hereof, the shipper agrees that this company may return said property to him at the expiration of that time, subject to the conditions of this receipt, and that he will pay the charges for transportation both ways, and that the liability of this company for such property, while in its possession for the purpose of making such collection, shall be that of warehousemen only. For the company. Freight, $____.

E. W. HASSELL.”

Respondents declare on the receipt, allege that appellant was a common carrier, and that the trunk and contents were reasonably worth $160, and were lost through the carelessness and improper conduct of appellant.

Appellant denies the loss of the trunk and contents; denies all carelessness and improper conduct; denies that it was a common carrier; asserts that it received the trunk and contents under the agreement sued on, and subject to its express conditions, amongst which were those that it accepted no other liability than that of a forwarder; and that, as the value of the trunk and contents were not stated, it was in no event to be held liable for more than $50, at which sum the parcel was valued.

The replication denies all new matter in the answer.

The court, at the instance of respondents, granted instructions which substantially declare: That appellant--if, being publicly engaged in...