Colorado & S. Ry. Co. v. Manatt

• Decision Date: 11 March 1912
• Citation: 121 P. 1012,21 Colo.App. 593
• Parties: COLORADO & S. RY. CO. v. MANATT.
• Court: Colorado Court of Appeals

121 P. 1012

21 Colo.App. 593

COLORADO & S. RY. CO. v. MANATT.

Court of Appeals of Colorado

March 11, 1912

Rehearing Denied April 8, 1912

Appeal from District Court, Boulder County; James E. Garrigues Judge.

Action by G.J. Manatt against the Colorado & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

E.E. Whitted, O.L. Dines, and Robert H Widdicombe, all of Denver, for appellant.

J.T Atwood, of Boulder, for appellee.

CUNNINGHAM J.

The plaintiff brought his action in the district court against the railroad company to recover the value of certain household goods and furniture which he had delivered to the Atchison, Topeka & Santa Fé Railway Company, at Corona, Cal for shipment to Boulder, Colo., said goods having been destroyed by a fire which consumed the depot of the defendant company at Boulder; the fire being the work of an incendiary. In its amended answer, the defendant admits that the goods in question "arrived at Boulder and were unloaded by the defendant at its depot and warehouse in said city on, to wit, the 6th day of August, 1907. The fire which destroyed the goods is admitted to have occurred on the early morning of August 10, 1907. It appears from the evidence that Mrs. Manatt, the wife of the plaintiff, repeatedly telephoned the company's agent, before the fire, in order to ascertain whether their goods had arrived. At the request of the agent, she gave the street number where she was stopping and the number of the telephone by which she could be reached. She was advised on each occasion, except the last, which occurred on August 8th, that the goods had not arrived. On August 8th she was told by the agent that he did not know whether they had arrived or not. On the afternoon of August 9th, preceding the fire, plaintiff called in person on the agent of the company, at the depot, to make inquiry concerning the goods, and was then told that the goods had not arrived. The company appears to have sent a postal card to the plaintiff, dated August 8th, and bearing post office stamp August 9, 7:30 a.m.; but there was no street number on the same. It is therefore apparent that it was known to the company, at and before the last conversation between the plaintiff and the defendant's agent, that the goods had arrived at the time of said conversation.

The principal contention between the parties is as to the binding effect of a certain shipping contract, prepared by an agent of the Atchison, Topeka & Santa Fé Railway Company, at Corona, Cal., and signed by the plaintiff at the time of the delivery of the goods to the Santa Fé Company for shipment. The pertinent clauses in said contract read as follows:

"When the words 'Owner's Risk' or the letters 'O.R.' are noted on this bill of lading, the shipper assumes the risk of all loss or damage to the property in the course of transportation, and in any event not to exceed the declared value hereon stated, if any. When this bill of lading bears a notation showing that the valuation of the freight is released to any amount, it is agreed that the value of the freight does not exceed such amount, and that any carrier which may be liable for loss or damage of the freight shall not be bound to pay more than such amount. ***

"Corona Station, July 1, 1907.

"Whereas the undersigned consignor has delivered for transportation to the Atchison, Topeka & Santa Fé Railway Company, Coast Lines, at the above station, a quantity of household goods, furniture and emigrants' movables, consigned to G.J. Manatt, Boulder, Colorado, described as follows: 17 pieces of H.H. Goods. Prepaid $82.00. Whereas said consignor desires to secure the benefit of the lower or special rate applicable only to such transportation at 'Owner's Risk' upon the valuation and conditions hereinafter expressed: Now, therefore, said railway company agrees to charge for such transportation the lower or special rate applicable to shipments, based on such valuation and the conditions hereinafter stated, and receives said goods for transportation upon the terms hereinafter stated; and said consignor hereby represents and agrees that the value of the above property does not exceed five dollars ($5.00) per hundred pounds, and that in case of any loss of or damage to the same, said railway company, or any connecting carrier transporting the same, shall not be liable for a greater amount. ***

"When the above class of goods is shipped at the rate based on the valuation of five dollars ($5.00) per hundred pounds agents will read the agreement to the consignor before requiring him to sign the same and must then note on the way bill, 'Released to valuation of $5.00 per 100 pounds.' Should the shipper refuse to sign the above contract, you will notify him that in such case the property will be received and forwarded only at the increased rates provided by the classification rules and regulations in effect at the time of the shipment, and applicable to 'Carrier's risk.' "

The contract containing the aforesaid clauses, among many others, bore the signatures of the Atchison, Topeka & Santa Fé Railway Company, Coast Lines, by W.L. Brown, its agent, and G.J. Manatt, consignor. Immediately preceding these signatures appears the following clause in the contract: "By signing this agreement, consignor hereby conclusively admits having read, and fully understanding, the foregoing provisions." One witness called by defendant, Mr. Frank P. Adams, chief clerk of the general freight office of the Colorado & Southern Railroad Company, testified: "The rate on household goods from Corona, Cal., to Boulder, Colo., where the liability is limited to $5.00 per cwt. in case of loss or damage, and so receipted for, was $3 per cwt., and, where the valuation was not so released, that the rate was $4.50 per cwt." Aside from this witness, the only evidence offered by defendant was the deposition of W.L. Brown, the agent at Corona, Cal. From this deposition, it appears that one H.H. Libby, a clerk of the defendant company working under the deponent, Brown, executed the bill of lading for the company, and that Brown had no personal knowledge of what occurred between the plaintiff and Libby at the time of the execution of the contract in question. Libby gave no testimony. Manatt testified that at the time he delivered the goods, and the contract in question was made up by the clerk at Corona, the agent quoted him a rate of $3; that no conversation whatever took place between himself and the company's agent as to the value of the property; and that he (Manatt) made no statement whatever concerning its value. This testimony, given by Manatt, is in no manner contradicted.

1. It seems to be admitted by both parties that the weight of the goods was 2,400 pounds, and the freight paid by plaintiff was $82. From this, it would appear that plaintiff did not receive the benefit of the $3 rate, but, on the contrary, paid a rate of $3.41 2/3, per hundredweight. Therefore, even if we assume that defendant's contention that a contract, such as we have here under consideration, may be legally made and entered into, and that the same is binding upon the shipper, it cannot be enforced against plaintiff in this case because of defendant's nonobservance of it in the matter of the freight rate.

2. We think that the contract entered into between the parties whereby the railroad company attempted to limit its liability to $5 per hundredweight, or to a maximum sum of $120, is, under the circumstances of this case as disclosed by the evidence, and under the adjudications in this state, to which we shall later call attention, invalid and unenforceable. In the shipment of goods was a piano. This fact was known to the company by the schedule of the description furnished it. The evidence that the goods were worth the amount of the judgment rendered in this case, to wit,...