Adams Express Co. v. Carnahan

• Decision Date: 25 June 1902
• Docket Number: 3,559
• Citation: 64 N.E. 647,29 Ind.App. 606
• Parties: ADAMS EXPRESS COMPANY v. CARNAHAN
• Court: Indiana Appellate Court

64 N.E. 647

29 Ind.App. 606

ADAMS EXPRESS COMPANY v. CARNAHAN

No. 3,559

Court of Appeals of Indiana

June 25, 1902

29 Ind.App. 606. At 612.

Original Opinion of March 11, 1902, Reported at: 29 Ind.App. 606.

Petition for rehearing overruled.

OPINION

ON PETITION FOR REHEARING.

ROBY J.

The special finding, in addition to the facts enumerated in the opinion, shows that Mrs. Tebbetts paid defendant, as its express charges upon said package, the sum of thirty-five cents; that appellant, by its agent, concurrently with the delivery of said package to it, and at the time of its acceptance for carriage, executed and delivered to said Mrs Tebbetts the written contract heretofore set out. The appellee did not see said contract or know of its contents until after it had been executed and delivered.

Contracts limiting the liability of common carriers are strictly construed against the carrier. Evidence and findings delivered and made in such cases are not measured by any different rules than in cases to which carriers are not parties. A reasonable construction of the facts stated in the finding shows that the valuation placed upon the package was contractual. In Hart v. Pennsylvania R. Co., 112 U.S. 331, 28 L.Ed. 717, 5 S.Ct. 151, the court said: "It must be presumed from the terms of the bill of lading, and without any evidence on the subject, and especially in the absence of any evidence to the contrary, that, as the rate of freight as expressed is stated to be on the condition that the defendant assumes a liability to the extent of the agreed valuation named, the rate of freight is graduated by the valuation. The valuation named was the 'agreed valuation,' the one on which the minds of the parties met, however it came to be fixed, and the rate of freight was based on that valuation, and was fixed on condition that such was the valuation, and that the liability should go to that extent and no further." Hart v. Pennsylvania R. Co., 112 U.S. 331, 5 S.Ct. 151, 28 L.Ed. 717; Duntley v. Boston, etc., R. Co., 66 N.H. 263, 20 A. 327, 9 L. R. A. 449, 49 Am. St. 610; Durgin v. American Express Co., 66 N.H. 277, 20 A. 328, 9 L. R. A. 453; Elkins v. Empire Transportation Co., 81 Pa. 315. The use of the term "consideration" in the findings would not have added to the effect of the facts therein exhibited. The general rule as to agency is that the principal who adopts the act of one professing to act for him must adopt it in toto, and will not be permitted to claim the benefit arising therefrom, and at the same time to repudiate the burden thereof. Bishop on Cont. (Enlarged ed.), § 1110; Daniels v. Brodie, 54 Ark. 216, 15 S.W. 467, 11 L. R. A. 81.

"Authority to ship carries with it authority to accept the bill of lading and enter into a contract limiting the carrier's liability." 1 Am. & Eng. Ency. of Law (2d ed.), 1034. The following authorities cited to the above stated proposition sustain it: Illinois, etc., R. Co. v. Jonte, 13 Ill.App. 424; Root v. New York, etc., R. Co., 76 Hun 23, 27 N.Y.S. 611; Nelson v. Hudson River R. Co., 48 N.Y. 498; Armstrong v. Chicago, etc., R....