Black v. Goodrich Transp. Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: TAYLOR
• Citation: Black v. Goodrich Transp. Co., 55 Wis. 319, 13 N.W. 244 (Wis. 1882)
• Decision Date: 09 September 1882
• Parties: BLACK v. GOODRICH TRANSPORTATION CO.

55 Wis. 319

13 N.W. 244

BLACK

v.GOODRICH TRANSPORTATION CO.

Supreme Court of Wisconsin.

Filed September 9, 1882.

Appeal from county court, Milwaukee county.

Johnson, Riethrock & Halsey, for respondent.

Goodwin & Benedict, for appellant.

TAYLOR, J.

It is admitted on the record that the appellant is and was a common carrier of goods and merchandise from the city of Milwaukee, in this state, to Escanaba, in the state of Michigan, as well as to and from other places; that on the twentieth of October, 1880, the respondent delivered to the appellant one barrel of “Anderson Bourbon Whisky,” of the value of $118.25, to be carried by said appellant from the said city of Milwaukee to Escanaba, in the state of Michigan; that the appellant received the same for the purpose of being carried from Milwaukee to Escanaba, the said appellant to deliver the same to the consignee at Escanaba, and collect its charges for freight from said consignee; that upon the delivery of said barrel of whisky to the appellant it gave a receipt therefor to the drayman of the respondent, who shortly thereafter delivered the same to the respondent, who retained possession of the same without making any objection thereto until after the loss occurred, for which this action is brought. Such receipt reads as follows:

“Received, Milwaukee, October 20, 1880, from John Black, in good order, on board of ______, the following articles to be forwarded without delay, as directed in the margin:

+-----------------------------------------------------------------------------+
                ¦Marked.   ¦Articles.                                                         ¦
                +----------+------------------------------------------------------------------¦
                ¦John      ¦1 bbl. whisky, 400 lbs. Liquor carried at val.,   $20             ¦
                ¦Sisschen, ¦per bbl. Half bbls. and kegs in proportion.  ”                    ¦
                +----------+------------------------------------------------------------------¦
                ¦Escanaba, ¦                                                                  ¦
                +----------+------------------------------------------------------------------¦
                ¦Mich.     ¦                                                                  ¦
                +-----------------------------------------------------------------------------+
                

The record shows that the barrel of whisky was not delivered to the consignee as agreed, and that the appellant has refused to give any account of the same, except that, upon inquiry made by the respondent, the appellant informed him that it was lost, giving no explanation whatever of the cause of the loss. Upon this state of facts the court below rendered judgment in favor of the respondent for the value of the whisky. The appellant claims that the judgment is erroneous, and alleges that according to the contract set out in the receipt it was not liable in case of loss, beyond the sum of $20. It is insisted by the learned counsel for the appellant: (1) That the receipt must be read as an express contract between the parties that in case the whisky was lost or destroyed while in the hands of the appellant as a carrier from any cause or by any means, the damages to be recovered by the respondent for such loss or destruction should be limited to $20, irrespective of its real value. (2) If the contract cannot receive the construction above stated, then it must be construed as an express agreement on the part of the respondent that if the barrel of whisky should be lost or destroyed while in the possession of the appellant as carrier, by any cause or means other than by the negligence or fault of the company, its agents, or servants, the damages to be recovered by the respondent should be limited to the sum of $20.

We are clearly of the opinion that the receipt should not be construed as a contract limiting the liability of the appellant to the sum of $20 irrespective of the value of the goods, in case of loss, under any and all circumstances, whether occurring through the fault or negligence of the appellant, its servants, or agents, or from causes over which they had no control. We think that it has been settled by the decisions of this court, the supreme court of the United States, and many of the state courts in which the question has been considered, that a common carrier of persons or property cannot, by any agreement however plain and explicit, wholly relieve himself from responding in damages to the party injured, when such injury is the result of the gross negligence or the fraud of the carrier, his agents or servants. This rule is by most of the courts founded upon public policy, and by some upon both public policy and a want of consideration to support the agreement. This whole questiou has been so often, so thoroughly, and so exhaustively discussed in the decisions cited, that it would be a waste of time as well as futile to attempt to add anything in confirmation of the general rule as above stated. New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344;Railroad Co. v. Lockwood, 17 Wall. 357;Bank of Kentucky v. Adams Ex. Co. 93 U. S. 174;Candee v. W. U. Tel. Co. 34 Wis. 471;Hibbard v. Telegraph Co. 33 Wis. 558;Morrison v. Construction Co. 44 Wis. 405. Another rule equally well settled by the authorities is that, in order to exempt the carrier from liabitily for the want of ordinary care or negligence of any kind on the part of its servants or agents, the contract must so expressly provide; and that in the absence of such express agreement it will be presumed that there was no intention on the part of the carrier to exempt himself from such liabitily.

In the case of N. J. Steam Nav. Co. v. Merchants' Bank, supra, the court says: “The burden of proof lies on the carrier, and nothing short of an express stipulation by parol or in writing should be permitted to discharge him from duties which the law has annexed to his employment. The exemption from these duties should not depend upon implication or inference, founded on doubtful and conflicting evidence, but should be specific and certain, leaving no room for controversy between the parties.” This rule is approved by the court of appeals in New York, notwithstanding the fact that that court has gone further than most of the other courts of the country in upholding contracts exempting carriers from liability for the negligence of its servants, when such exemption has been clearly and expressly stipulated for. See Wescott v. Fargo, 61 N. Y. 542.

It is urged by the learned counsel for the appellant that a contract made with a carrier, that in case of loss the carrier shall be liable to pay as damages a sum specified in the contract for carriage, is not a contract limiting the liability of the carrier within the meaning of the rule above stated, and that such agreement is binding on the parties, irrespective of the cause of the loss. The learned counsel has cited us to some cases in the federal circuit courts which seem to sustain his position. It will, however, be seen from an examination of the cases cited, that most of them were cases where the stipulation was limited to the value of packages when their real value was not disclosed by the owner, and of which the carrier could not be supposed to have knowledge. The strongest case cited for the appellant is the case of Hart v. Railroad Co. 7 Fed. Rep. 630. This was the case of the shipment of horses, and the contract was “that the carrier assumes a liability on the stock to the extent of the following agreed valuation: If horses, * * * not exceeding $200 each; if a chartered car, on the stock or contents in same, not exceeding $1,200 for the car load.” Under this agreement the circuit court held that the shipper could not recover beyond the sum of $200 for any one of the horses killed during their transportation. The learned circuit judge places his decision on the well-settled rule “that in cases where common carriers can limit their liability at all by contract, stipulation, or notice, there is this qualification, ‘that the limitation shall be just and reasonable in the eye of the law.’ ”

In that case one of the horses shipped was killed, and the owner claimed that he was worth $15,000, and sought to recover damages to that amount. The court held, that as there was no evidence...