Boscowitz v. the Adams Express Co..

• Decision Date: 30 September 1879
• Citation: 93 Ill. 523,1879 WL 8644,34 Am.Rep. 191
• Parties: IGNATZ BOSCOWITZ et al.v.THE ADAMS EXPRESS COMPANY.
• Court: Illinois Supreme Court

93 Ill. 523

1879 WL 8644 (Ill.)

34 Am.Rep. 191

IGNATZ BOSCOWITZ et al.

v.THE ADAMS EXPRESS COMPANY.

Supreme Court of Illinois.

September Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

Mr. SIDNEY SMITH, and Mr. JOHN C. PATTERSON, for the appellants, after stating the facts of the case, made among others the following points:

1. The plaintiffs concede to the fullest extent the distinction between the effect of those notices by a carrier who seeks to discharge himself from duties the law has annexed to his employment and those designed simply to insure good faith and fair dealing on the part of the employer; in the former, notice alone not being effectual without assent to the attempted restriction, while in the latter case notice alone, if brought home to the knowledge of the owner of the property delivered for carriage, will be sufficient. Oppenheimer v. U. S. Express Co. 69 Ill. 62; Railroad Co. v. Lockwood, 17 Wall. 357-384; 2 Greenl. Evi. § 215; Angell on Carriers, § 245; Southern Express Co. v. Crook, 44 Ala. 468.

2. The common carrier has, in truth, two distinct liabilities,--the one for losses by accident or mistake, where he is liable as insurer--the other for losses by default or negligence, where he is answerable as an ordinary bailee. Dorr v. The N. J. Steam Navigation Company, 4 Sanford, 136. And it is only in relation to the former that restrictions and limitations like those in the receipt in question are applicable; and it is the settled law, at least in the American courts, that, admitting a special contract in terms like this receipt, the carrier is still liable for loss caused by want of ordinary care, most of the cases holding that a stipulation in explicit terms exempting the carrier from loss occasioned by the negligence of himself or his servants is void as against public policy, and all holding that in the absence of such language the receipt or contract should be construed as applicable only to losses occurring without fault or negligence. Adams Express Co. v. Stettaur, 61 Ill. 421; Oppenheimer v. U. S. Express Co. Id. 62; Farnham v. Camden and Amboy Railroad Co. 55 Penn. State, 62; Jones v. Voorhees, 10 Ohio, 145; School District v. Boston and C. R. R. Co. 102 Mass. 552; Fillebrown v. Grand Trunk Railway Co. 55 Me. 462; Indianapolis R. R. Co. v. Allen, 31 Ind. 394; Hooper v. Wells, Fargo & Co. 27 Cal. 11; Christenson v. American Express Co. 15 Minn. 270.

3. The court erred in refusing evidence which would have warranted the jury in finding that the furs were destroyed by the telescoping of the baggage car into the express car, and that if the company had adopted the Miller platform it would have prevented the telescoping, and consequent destruction of the furs by fire. It has been repeatedly held by this court, that it is the duty of railroad companies to make use of the best known appliances for the prevention of the escape of sparks from their engines, and that a failure to do so is negligence for which the company is liable. St. Louis, Alton and T. H. R. R. Co. v. Gillham, 39 Ill. 455; Illinois Central R. R. Co. v. McClelland, 42 Id. 355; Illinois Central R. R. Co. v. Mills, 42 Id. 407; Costello v. Syracuse R. R. Co. 65 Barb. 92; Steinway v. Erie Railway, 43 N. Y. 123.

4. The court, by an instruction, restricted the recovery under the limitation clause in the receipt to $50, while the proof shows there were three distinct bales of furs or peltries, of the aggregate value of over $8,000. The $50 clause in the receipt only limits the recovery to $50 for each separate package.

Messrs. SMALL & MOORE, for the appellee:

An express receipt was made out by appellants and tendered to appellee for signature at the time the furs were delivered. It is insisted that appellants are conclusively presumed to have known the contents of the paper made out by themselves, and that the receipt, when signed and returned to them, became their contract as fully as if they had signed it. Adams Express Co. v. Haynes, 42 Ill. 94; Illinois Central R. R. Co. v. Frankenberg, 54 Id. 88; Oppenheimer v. U. S. Express Co. 69 Id. 62; Western Transportation Co. v. Newhall, 24 Id. 467. Mr. JUSTICE SCOTT delivered the opinion of the Court:

Plaintiffs brought their action against the Adams Express Company to recover the value of three bales of furs delivered to the company for transportation from Chicago to New York. The goods were never delivered to the consignees, but were destroyed en route by fire caused by the wreck of the train, occasioned by a broken rail.

As to the delivery of the goods to the carrier, their value and destruction by fire, there is no disagreement. The receipt taken by the shippers at the time of the delivery of the goods to the carrier, was filled up by an employee of plaintiffs, and was presented with the goods for the signature of the agent acting on behalf of the company. The blank used for that purpose was one of a large number furnished by the United States Express Company to its customers. In the receipt prepared by the bookkeeper of plaintiffs for the goods to be shipped, the word “Adams” is written over the printed words “United States,” so as to make it the receipt of the Adams Express Company. A line made with a pen was drawn over the blank left for stating the valuation of the goods. The articles mentioned in the body of the receipt are “three (3) bales, said to contain peltries.” On the upper left-hand corner of the receipt is stated in figures the separate and total weights of the three bales, and also “two bales mink” and “one bale skunk;” but there is a conflict in the testimony as to when these latter words and figures were placed there--whether before or after it was signed by the agent of the company.

Among the printed conditions of the receipt is the following: “And it is hereby expressly agreed that the said United States Express Company are not to be held liable for any loss or damage, except as forwarders only, nor for any loss or damage of any box, package or thing for over $50, unless the just and true value thereof is herein stated.” The contention is, whether this clause of the receipt limits the right of recovery, in case of the loss of the goods, to the sum of $50, because the true value was not stated therein, or whether plaintiffs, notwithstanding the restriction as to the extent of the carrier's liability, can recover the full value of the goods as shown by the evidence. Plaintiffs base their right to recover on two propositions: first, under the facts of the case it was not their duty to make known to the carrier the valuation of the goods; and second, even if it was their duty, the omission to make such disclosure can not be urged to limit a recovery for a loss of goods caused by the carrier's own negligence. On the other hand, defendant rested the defence upon the letter of the contract, relying upon what it understood to be a rule of law applicable to the case, that it was incompetent for plaintiffs to contradict or vary the terms of the contract as embodied in the receipt given by the carrier for the goods.

Upon the questions involved the court instructed, for defendant, that the issues submitted were, whether the furs were lost or destroyed by reason of actual negligence of defendant, and, if no negligence is proved, then, if the goods, while in the course of transportation, were destroyed by an unforeseen casualty, against which ordinary prudence could not provide, it was the duty of the jury to assess no greater damages than $50--the sum stated in the limitation clause of the contract,--and that the receipt in evidence must be regarded and treated as a binding contract between the parties in each and all of its provisions, and that it should be read as though the words “United States” were not in it. The court, however, refused to give for plaintiffs the reverse proposition, as it was asked to do, that the conditions and restrictions contained in the receipt were not binding upon plaintiffs, so far as they purported to limit the carrier's common law liability, unless plaintiffs had knowledge of such restrictions and assented to them. Under the charges given, the jury, no doubt, felt compelled to assess plaintiffs' damages at no greater sum than $50--which they did. As we have seen, the goods destroyed consisted of two bales of fine, and one of coarse, furs--all distinct packages--and each proven to be of a value in excess of the sum named in the restricting clause of the receipt. It will be observed the limitation is as to “any box, package or thing;” and as each package or bale exceeded in value $50, there is and can be no reason why, in any view that may be taken of the legal effect of the alleged contract, plaintiffs can not recover that sum for each “package” destroyed. It makes no difference the several distinct packages were all embraced in one receipt,-- they are, nevertheless, distinct packages. In limiting the amount of recovery, in case no negligence was proven, to $50, as was done by the court in its instructions, there was manifest error, for which the present judgment must be reversed, even if no other cause existed.

The question of the most importance in the case is, whether, as a matter of law, the receipt in evidence is to be treated as a binding contract between the parties in each and all its provisions.

Construing the receipt literally, it contains no contract between the shippers and defendant that in any manner limits the carrier's common law liability as to the amount of the recovery in case of the loss of the goods. That which is said to constitute such contract is contained in the printed part of the receipt, and is with the “United States” Express Company, and not with defendant. A case bearing a close analogy to this one in this particular, is the Merchants' Trans. Co. v. Bolles, 80 Ill. 473, where the receipt given for the goods contained exemptions in...