Ballou v. Earle

• Decision Date: 25 July 1891
• Citation: 22 A. 1113,17 R.I. 441
• Parties: BALLOU v. EARLE et al.
• Court: Rhode Island Supreme Court

22 A. 1113

17 R.I. 441

BALLOU

v. EARLE et al.

Supreme Court of Rhode Island.

July 25, 1891.

Assumpsit by William L. Ballou against William H. Earle and Henry Prew, copartners as the Earle & Prew Express Company, for the value of a package lost by the defendants.

Stephen A. Cooke, Jr., and Louis L. Angell, for plaintiff.

Arnold Green, for defendants.

TILLINGHAST, J. This is assumpsit to recover the sum of $579, being the value of a box of diamonds which the plaintiff delivered to the servant and agent of the defendants to be by them transported by express to New Bedford, in the state of Massachusetts. Jury trial is waived, and the case is to be tried to the court on the law and the facts. The defendants, who are common carriers of merchandise for hire, received from the plaintiff at Providence, on the 26th day of July, 1890, a package containing diamonds of the value aforesaid, to be by them delivered to C. W. Haskins, at New Bedford, Mass. The plaintiff had, and for a considerable time previous to the above-named date had had, in his possession and constant use a book of the defendants' contract receipt blanks, at the top of each page of which was printed what purports to be a mutual agreement between the shipper and the common carrier, which agreement, in so far as it is material for our present consideration, provides that the defendants "are not to be held liable or responsible for any loss or damage to said property * ** 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 especially insured by them and so specified in this receipt, which insurance shall constitute the limit of the liability of Earle & Prew's Express. "One of these blanks the plaintiff filled out for the addressed package in question, but gave no value thereof, although there was a blank column in said receipt marked "value." This receipt was signed by the defendants' agent when the plaintiff gave the package to the agent. The defendants had no knowledge of the contents or value of said package except as stated in said receipt at the time of its delivery to them, nor did they make any inquiry of the plaintiff concerning the same. This package was lost by the negligence of the defendants' servant before it reached their office, and said defendants admit their liability therefor under said agreement, and offer to pay the said sum of $50, which, they contend, is the limit of their liability. The plaintiff testifies that his reason for not giving any value to the package was because the express age was to be paid by the consignee. The defendants, on the other hand, testify that the reasons given them by the plaintiff for not giving any value to the package in said receipt were that it cost more money, and that the consignee had previouly complained of the charges of expressage in cases where the values had been given, and that he adopted this mode to lessen said charges.

We think it is very evident that the purpose of the plaintiff in not giving any value to the package was to save, either to himself or to the consignee, and it matters not which, the additional expressage which would have been charged by the defendants if the real value had been given; for it must be presumed from the terms of the receipt that, as the defendants assume a liability only to the extent of the valuation therein named, the rate of expressage is graduated by said valuation. Under this state of facts the plaintiff's final contention, which logically should be the first, and hence we will consider it first, is that the express assent of the owner of the goods to the restrictions of the carrier's liability must be found to give effect to it in any case. We think the decided preponderance of the authorities is to the contrary; and that the welsettled rule now is that in the absence of fraud, concealment, or improper practice the legal presumption is that stipulations limiting the common-law liability of common carriers contained in a receipt given by them for freight were known and assented to by the party receiving it. Belger v. Dinsmore, 51 N. Y. 166; Steers v. SteamShip Co., 57 N. Y. 1; Harris v. Railway Co., 1 Q. B. Div. 515; Germania Fire Ins. Co. v. Memphis & C. R. Co., 72 N. Y. 90; Quimby v. Railroad Co., 150 Mass. 365, 23 N. E. Rep. 205; Burke v. Railway Co., 5 C. P. Div. 1; Maghee v. Railroad Co., 45 N. Y. 514; Grace v. Adams, 100 Mass. 505; Insurance Co. v. Buffum, 115 Mass. 343; Hill v. Railroad Co., 73 N. Y. 351. For a full discussion of the contrary doctrine, see Hoilister v. Nowlen, 19 Wend. 234, and cases cited. In the case at bar a printed fac simile of the receipt in question is before us, which shows that the terms and conditions upon which the defendants received the goods in question must have been well known to the plaintiff. And more especially is this to be taken for granted from the fact that a book of the defendants, filled with receipt blanks identical with this, was in the plaintiff's possession, and in almost daily use by him. From an examination of said fac simile it is evident that there was not only no attempt to conceal the terms and conditions of the bailment on the part of the defendants, but, on the other hand, that it bad been their purpose to make the same specially prominent and noticeable. It is all printed on one side of the paper, and at the top thereof. It is headed by the caution, printed in bold type, "Read the Conditions of this Receipt," and all the printed matter precedes the signature of the agent of the defendants. We think, therefore, that the receipt in question ought to be regarded as having received the assent of the plaintiff, and as being, as its language purports, the mutual agreement of the parties touching the package in question.

Having found, then, that there was an agreement between the parties as to the limit of the defendants' liability in case of loss, we come to the main question in the case, viz., was said agreement valid and binding upon the parties thereto? or, to state the question more broadly, to what extent is a common carrier entitled to contract in limitation of his common-law liability? This is a question, in so far as it applies to carriers by land, upon which there has been great contrariety of opinion in different courts, the earlier cases holding that it was against public policy, and hence impossible, for common carriers to guard themselves by any stipulations whatever against liability from loss arising from any other cause than the act of God or the public enemy. This question is discussed in Edwards on Bailments, (section 552, and cases cited in note 5,) while the later cases have materially modified this rule in the carrier's favor, and permitted him not only to contract so as to change the extent of his liability as fixed by the common law, but such contracts, when made with his employer, became almost entirely the measure of his responsibility. "And this custom," says Hutchinson on Carriers, (section 119,) "has become so universal in transactions with carriers that his liability may now be said to depend almost exclusively upon contract. He still stands, however, in the relation of common carrier to the goods intrusted to him, notwithstanding his contract, however much it may lessen his common-law liability, and he cannot, even by the most express contract, divest himself of that character, and change it to that of a mere private carrier or ordinary bailee." Davidson v. Graham, 2 Ohio St. 131, 140; Railroad Co. v. Lockwood, 17 Wall. 357, Hooper v. Wells, 27 Cal. 11; Christenson v. Express Co., 15 Minn. 270, (Gil. 208;) Bank of Kentucky v. Adams Exp. Co., 93 U. S. 174, 180; Kirby v. Express Co., 2 Mo. App. 369; but see Express Co. v. Sands, 55 Pa. St. 140; Grogan v. Express Co., 114 Pa. St. 523, 7 Atl. Rep. 134. Without attempting a review of the conflicting authorities upon the question before us, which would answer no useful purpose here, we will only say that upon an examination thereof we have come to the conclusion that the decided weight of the authorities, as well as the better reason, favors the rule that a common carrier may, to a great extent at least, contract in limitation of his common-law liability, "provided," as stated in Express Co. v. Caldwell, 21 Wall. 264, "the limitation be such as the law can recognize as reasonable and not inconsistent with sound public policy." The shipper and the common carrier are thus authorized to enter into an express agreement, within certain limits, as to the terms upon which the latter will transport and convey for the former a certain article of personal property of an agreed value to a designated place for an agreed price. We fail to see that the recognition of the validity of such an agreement is violative of any sound rule of public policy. Indeed, it seems to us that public policy requires the upholding of such an agreement as tending to the honest disclosure of value on the part of the shipper, and the exercise of that degree of diligence on the part of the carrier which is commensurate with the value of the particular article conveyed, and the price paid for such conveyance, To illustrate: A. has a box of tinware of the value of five dollars, which he wishes to send to Boston by B., a common carrier. The box is...