Farnham v. Camden and Amboy Railroad Co.

• Decision Date: 13 May 1867
• Citation: Farnham v. Camden and Amboy Railroad Co., 55 Pa. 53 (Pa. 1867)
• Parties: Farnham <I>et al. versus</I> The Camden and Amboy Railroad Company.
• Court: Pennsylvania Supreme Court

Page 53

55 Pa. 53

Farnham et al. versus The Camden and Amboy Railroad Company.

Supreme Court of Pennsylvania.

March 2, 1867.

May 13, 1867.

March 2d 1867.

Before WOODWARD, C. J., THOMPSON, STRONG and AGNEW, JJ. READ, J., absent

Certificate from Nisi Prius.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Henry M. Phillips, for plaintiffs in error.—At common law it is the duty of a common carrier to transport goods.

He is legally responsible for all losses, from whatever cause arising, the acts of God and the public enemy alone excepted.

As an insurer he may demand a premium proportioned to the hazard of his employment; Coggs v. Bernard, 2 Ld. Raym. 909; Lane v. Colton, 1 Id. 646, 655, 1 Salk. 143; Riley v. Horn, 5 Bing. 217; Lockhart v. Lichtenthaler, 10 Wright 151.

Agreements to avoid their common-law liability as insurers will not excuse them from gross carelessness or negligence; and the onus of showing that the cause of the loss was within the terms of the exception, and also that there was no negligence, lies on the carrier: Angell on Carriers, §§ 267, 268, 275; Hollister v. Nolen, 19 Wend. 234; Cole v. Goodwin, Id. 251; Sager v. Railroad Co., 31 Maine 228; Swindler v. Hilliard, 2 Richardson 286; Davidson v. Graham, 2 Ohio 133; Gould v. Hill, 2 Hill 623, 2 Kent 607, note c; Camden and Amboy Railroad Co. v. Baldauf, 4 Harris 67, decided in 1851; Penna. Railroad Co. v. McCloskey's Administrator, 11 Harris 526; Illinois Central Railroad Co. v. Read, 37 Ill. Rep. 37; Hooper v. Wells, Am. Law Reg., vol. 5 N. S., 16; Owners of the Mary Washington v. Ayres, Am. Law Reg., Sep. 1866, 692; Beekman v. Shouse, 5 Rawle 179; Clark v. Spence, 10 Watts 337.

The statute of New Jersey cited cannot govern in the courts of Pennsylvania. The contract was made in this state and the suit was brought here, the interpretation of the contract and the rule for its government must be the lex loci: Story on Conflict of Laws, § 272; Bank of the United States v. Donnally, 8 Peters 361; Wilcox v. Hunt, 13 Id. 378; Hale v. The New Jersey Steam Navigation Co., 15 Conn. 539.

J. E. Gowen, with whom was A. I. Fish, for defendants in error.—1. The limitation of responsibility in the bill of lading and the printed notices was legal.

2. The plaintiffs must be presumed to have known and acquiesced in the limitation when their goods were delivered for transportation.

3. In view of the facts ascertained by the case stated, the responsibility of the defendants cannot be enlarged through any presumption of negligence or misconduct on their part.

One who has intrusted goods to a common carrier cannot be permitted to say that he had no notice that the acceptance was qualified, when notice was given, not only by a placard which he could not fail to see, but by a paper actually put into his hands.

The non-delivery of the goods intrusted to a carrier's charge is alone sufficient to render him responsible, but where the non-delivery is accounted for, and it does not appear that there was any negligence on the part of the bailee, the maxim quod non apparet, non est, will apply as in other cases: The Railroad Co. v. Baldauf, 4 Harris 67; Beekman v. Shouse, 5 Rawle 189; Clark v. Spence, 10 Watts 335; Goldey v. The Pa. Railroad Co., 6 Casey 242; The N. J. Steam Nav. Co. v. The Merchants' Bank, 6 Howard 384; Marsh v. Horne, 5 B. & C. 322; Harris v. Packwood, 3 Taunt. 264; Angell on Carriers, § 276; Story on Bailments, § 573; Greenleaf on Evidence, § 218; Sager v. The Railroad Co., 31 Maine R. 228; Wyld v. Pickford, 8 M. & W. 460.

The case is in all material respects identical with that of a carrier offering to transport goods of a certain value at one rate, and those of a higher value at a higher rate.

The common-law liability of a common carrier may be limited, qualified and restricted, either by a special acceptance from, or by a special contract with the owner or shipper; provided such special acceptance or special contract do not attempt to screen the carrier against losses by his own misconduct or negligence: Angell on Carriers, chap. vii.; Cole v. Goodwin, 19 Wend. 251; S. C., Angell on Carriers, Appendix, p. 32, 2d ed.; Farmers' and Mechanics' Bank v. Champlain Transportation Co., 23 Vermont 186, 1851; Carr v. The L. & Y. R. W., 14 Eng. L. & Eq. 340; Story on Bailments, § 549, § 549 a, 549 b, 7th ed.; Southcote's Case, 4 Coke's Rep. 84; Farmers' and Mechanics' Bank v. Champlain Trans. Co., 16 Verm. 52, 18 Id. 131, 23 Id. 205; Paradine v. Jane, Aleyn 26-7; Morse v. Slue, Ventris, part 1, pp. 190, 238; s. c., 2 Lev. 69, 3 Id. 268, Show. 29, Dyer 190, Raym. 220, 1 Mod. 85, 3 Keb. 72, 112, 135, 2 Id. 866, Molloy 4, 9, 10, 11, 203; Kenrig v. Eggleston, Aleyn 93; York Co. v. The Central Railroad Co., 3 Wallace 107; Cole v. Goodwin, 19 Wend. 251; Gould v. Hill, 2 Hill 623; The Peninsular and Oriental Steam Navigation Co. v. Shand, 11 Jurist 771; Dorr v. New Jersey Steam Nav. Co., 1 Kern. 484; N. J. Steam Nav. Co. v. Merch. Bank, 6 How. 382; Story on Bail., § 549; Chitty on Cont. 152; 2 Kent Com. 606; Angell on Carriers, §§ 59, 220, 221; Bingham v. Rogers, 6 W. & S. 495; Laing v. Colder, 8 Barr 479; Chouteaux v. Leech, 6 Harris 224; Whitesell v. Crane, 8 W. & S. 373; Van Toll v. S. E. Railway Co., 12 Scott 87, s. c. 104 E. C. L. R.; Hale v. N. J. Steam Nav. Co., 15 Conn. 539.

The doctrine that the carrier is legally responsible for all losses, from whatever cause arising, the act of God and the public enemy alone excepted, has no application in this case, where the parties have expressly provided a different rule of liability: Steamboat New World v. King, 16 How. 475; Shiells v. Blackburne, 1 H. Bl. 161; Wilson v. Brett, 11 Exchequer 116; Grill v. Iron Screw Coll. Co., 1 Law Rep. 612; O'Brien v. The Phila., Wilmington and Baltimore Railroad Co., 6 Am. Law Rep. 364; Duff v. Budd, 3 Brod. & Bing. 177; Riley v. Horne, 5 Bing. 217; Batson v. Donovan, 4 B. & Ald. 21; Citizens' Insurance Co. v. Marsh, 5 Wright 394; Hays v. Kennedy, Id. 378; Thorogood v. Marsh, Gow R. 105; Story on Bailment, § 551; Peck v. N. Staffordshire Railway, 32 Law J. R. 241; Pa. Railroad v. Henderson, 1 P. F. Smith 315.

The opinion of the court was delivered, May 13th 1867, by THOMPSON, J.

It does not admit of a doubt that a common carrier may by a special contract, and perhaps by notice, limit his liability for loss or injury to goods carried by him, as to every cause of injury, excepting that arising from his own or the negligence of his servants. A great variety of cases cited in the very able argument of the learned counsel for the defendants, establish this as the rule in England, from Southcote's Case, 4 Coke's Rep. 84, A. D. 1601, down to The Peninsular and Oriental Steam Navigation Co. v. The Hon. Farquhar Shand, 11 Jurist 771, in 1865. The same rule generally holds in the several states in this country, as will appear in Story on Bailments, § 549 notes a and b; Dow v. New Jersey Steam Navigation Co., 1 Kern. 484; and in the Supreme Court of the United States, York Co. v. The Central Railroad Co., 3 Wall. 107. This has long been the rule in this state, as is shown by Bingham v. Rogers, 6 W. & S. 495; Lang v. Calder, 8 Barr 479; The Camden and Amboy Railroad Co. v. Baldauf, 4 Harris 67; Chouteaux v. Leech, 6 Id. 224; Goldey v. The Pennsylvania Railroad Co., 6 Casey 242; and Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith 315.

That there was a special acceptance limiting the defendants' liability to one dollar a pound in case of loss or destruction, in this case, is among the facts found in the case stated. The bills of lading, duly executed and signed by the agents of the defendants, containing the limitation, it is agreed were delivered to the plaintiffs, accepted by them and remitted to their agent at New York as his authority to receive the goods. These, therefore, were the terms on which the transporters shipped their goods and on which they were received to be transported. As this was a limitation of the common-law liability, we are to presume, of course, that the charge for transportation was in proportion to the risk, an element of charge in all such cases. The conditions of shipment on the bill of lading show this, by expressing the limitation to be because of the "shipper declining to pay for any higher risk." We have, therefore, a contract to transfer goods under a special agreement as to liability, and a consideration based, we must presume, on the undertaking in its limited form.

This limitation, we are warranted in saying, took the case out of the law of common carriers and carried it into one of the numerous classes of bailments, and it henceforth became liable to be governed by the law of the class.

The reason will be apparent on a moment's reflection. The common law defines the duty and the liability in the one case — in the other the law is set aside by agreement of the parties, and they make a law for themselves, and thus they stand on the relation they create, and not on the law of common carriers.

By the common law the carrier is an insurer of the goods intrusted to him, excepting so far as they are damaged by the act of God or public enemies.

By a contract limiting liability he is an insurer by agreement, and according to its terms. If there be a loss, the agreement furnishes the extent of liability and is confined to that, unless he can show that the loss occurred from the wilfulness or negligence of the carrier. His liability is as a private carrier or bailee, a consequence of the limitation. This is settled in various forms of expression in numerous books and cases of authority. In Angell on the Law of Carriers, § 268, it is said: "Therefore, as there has been occasion before to show that in cases of contract and by means of notices, common carriers descend only to the situation of private carriers for hire."

In York Co. v. The Central Railroad Co., supra, this language is found: "By the special agreement the carrier...