Hanson v. Great Northern Ry. Co.

• Decision Date: 09 March 1909
• Citation: 121 N.W. 78,18 N.D. 324
• Court: North Dakota Supreme Court

121 N.W. 78

18 N.D. 324

T. M. HANSON v. GREAT NORTHERN RAILWAY COMPANY

Supreme Court of North Dakota

March 9, 1909

Rehearing denied May 15, 1909.

Appeal from District Court, Nelson county; Templeton, J.

Action by T. M. Hanson against the Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Murphy & Duggan, for appellant.

Party in charge of goods for shipment has full authority to contract for such shipment. 1 Hutchinson on Carriers, 457; Armstrong v. Chicago, M. & St. P. Ry. 54 N.W. 1059; California Powder Works v. Atlantic & P. R. Co., 45 P. 691 36 L. R. A. 648.

By special contract a carrier may grant different rates for goods of different value; and when he represents his goods of lower value, and takes a lower rate, he is bound by his contract. 1 Hutchinson on Carriers, 401-4, 408; St. Louis v. Weekly, 8 S.W. 134; Hart v. Penn, Ry. Co., 112 U.S. 331, 5 S.Ct. 151; Louisville & N. R. v Sherrod, 4 So. 29; Coupland v. Housatonic Ry Co., 23 A. 870-3; Jennings v. Smith, 106 F. 139; Met. Trust Co. v. Ry. Co., 107 F. 628; McFalane v. Express Co., 137 F. 982; Railway Co., v. Patrick, 144 F. 632; Michelitschke v. Wells Fargo Co., 50 P. 847; Pierce v. Southern Pac. Ry. Co., 47 P. 847; 52 P. 302; Alair v. Northern Pac. Ry. Co., 54 N.W. 1072, 19 L. R. A. 764; Smith v. American Express Co., 66 N.W. 479; O'Malley v. Gt. N. Ry. Co., 90 N.W. 974; 1 Hutchinson on Carriers 426.

A contract for lower freight in consideration of lower valuation of goods shipped, is valid, unless void for fraud, or grossest and most wilful negligence. Hart v. Penn. Ry. Co., 112 U.S. 331, 5 S.Ct. 151; Smith et al., v. Waalkes, 66 N.W. 479; Coupland v. Housatonic Co., 23 A. 870-3; Muser v. American Express Co., 1 F. 382; Pacific Express Co., v. Foley, 46 Kan. 457, 26 Am. St. Rep. 107; Hill v. Boston Ry Co., 144 Mass. 284, 28 A. & E. Ry. Cas. 87; J. J. Douglas Co. v. Minn Tr. Ry. Co. 62 Minn 288, 64 N.W. 899; Duntley v. Boston Ry. Co., 66 N.H. 263; Durgin v. American Exp. Co., 66 N.H. 277; Ballou v. Earle, 17 R. I. 441, 33 Am. St. Rep. 881; Johnstone v. Richmond R. Co., 39 S.C. 351; Starnes v. Louisville Ry. Co., 91 Tenn. 516, 19 S.W. 675; Richmond D. R. Co. v. Payne, 86 Va. 481, 10 S.E. 749.

Frich & Kelly, for respondent.

Contracts exonerating common carrier from liability for gross negligence, fraud or willful wrong of himself or his servants, are void, Rev. Codes 1905, Sec. 5678; Ry. Co. v. Beasley, 3 L. R. A. (N. S.) 183; McCune v. The B. C. R. & N. Ry. Co., 3. N.W. 615; Davis v. Chicago R. I. & P. Ry. Co., 49 N.W. 77; Brush v. Ry. Co., 43 Ia. 554; Lucas v. Burlington C. R. & N. Ry Co., 84 N.W. 673; Express Co. v. Owens, 8 L. R. A. (N. S.) 369, 41 S. 752; Railway Co. v. Wynn, 14 S.W. 311; Express Co. v. Backman, 28 Ohio St. 156; Hutchinson on Carr., Sec. 250.

Where the actual and contract values are grossly disproportionate, such agreements are void. Liverpool & G. W. Steam Co. v. Insurance Co. of North America, 9 S.Ct. 469; Moulton v. St. P. M. & M. Ry. Co., 16 N.W. 497; Railway Co. v. Hall, 4 L. R. A. 898, 52 S.E. 679; Kansas City St. J. & C. B. Ry. Co., v. Simpson, 2 P. 821; Everett v. Railway Co., supra; Black v. Goodrich Transportation Co., 13 N.W. 244; O'Mally v. Gt. N. Ry. Co., 90 N.W. 974; Railway Co. v. Hughert, 8 So. 62; Rosenfeld v. D. & E. R. R. Co., 2 N.E. 344; Railway Co. v. Murphy, 53 L. R. A. 720; Central Georgia Railway Company v. Murphy & Hunt, 53 L. R. A. 720; Chicago & N.W. Ry. Co. v. Chapman, 24 N.E. 417.

Where a carrier of goods under a special contract limiting its liability, it is liable as insurer by abandoning the shipment at a point short of its destination. 6 Cyc. 384, 397; Pavitt v. Railway Co., 25 A. 1107; Seavey v. Union Transit Co., 82 N.W. 285; Ry. Co. v. Allison, 59 Tex. 193, 12 A. & E. Ry. Cas. 28; Ry. Co., v. Davis 2 Willson 195; Stewart v. Railway Co., 47 Iowa 229; Robinson v. Merchant's Disp., 45 Iowa 470; Disp. Co. v. Johnson, 11 S.W. 441; Rawson v. Holland, 59 N.Y. 611; Maghee v. Railroad Co. 45 N.Y. 514; Condict v. Railroad Co., 54 N.Y. 500, and cases cited; Cassilay v. Young, 39 Am. Dec. 505.

OPINION

FISK, J.

Plaintiff had judgment in the court below pursuant to a verdict directed by the court, and this appeal is from such judgment and from an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial.

The facts are not seriously in dispute, and are substantially as follows: Plaintiff, being the owner of certain household goods, a list of which appears in the complaint, had the same taken from his home in Minneapolis by Boyd Storage & Transfer Company, and by them packed and crated for shipment and shipped to him at Tolna, N.D. He paid them a lump sum of $ 23 for packing, hauling, shipping, and freight charges. The storage company's drayman delivered the goods to the Minneapolis freighthouse of the defendant for shipment to Hanson at Tolna. The goods were weighed, weighing 1,540 pounds as packed. Anderson, the teamster for the Boyd Company, caused the shipment to be made in the name of Boyd Transfer & Storage Company, as consignor, to T. M. Hanson, as consignee. At that time the regular freight rate on goods of this class from Minneapolis to Tolna was 1 1/2 times first class, of $ 1.41 per 100 pounds. Defendant also had a special western rate, called the "emigrants' movable rate," from Minneapolis and other specified points to North Dakota, on household goods of intending settlers, when the shipment is made at the owner's risk, and at a declared valuation of $ 5 per 100 pounds; this rate being only 35 cents per 100 pounds. The goods were shipped at the declared valuation of $ 5 per 100 pounds, and at the rate of 35 cents per hundredweight. In addition to the ordinary freight receipt, a special contract was prepared by defendant's agent and executed by Anderson, the drayman, which special contract is hereafter set out in full. Plaintiff proved a failure on defendant's part to deliver the goods, an seeks to recover for breach of the contract of shipment, alleging the value of the goods to be $ 782.67 instead of $ 77, the value declared in the special contract. At the close of the trial, defendant tendered judgment for $ 77, and the trial court, on plaintiff's motion, directed a verdict for $ 759,77, being the actual value testified to by plaintiff.

Appellant's counsel have assigned numerous alleged errors of law which they ask this court to review, but it will not be necessary to notice them in detail. As we view the questions involved, they may be classified into three propositions, as follows: (1) Is plaintiff legally bound by the action of the Boyd Transfer & Storage Company through its employe, Anderson, in entering into the special contract limiting the common carrier's liability? (2) Conceding Anderson's implied authority to make the same, is said special contract valid? (3) Under the facts has defendant forfeited its right to rely upon and enforce the provisions of such special contract?

If the second proposition is decided in the negative, such decision will obviate the necessity of passing upon the other propositions. Hence, we will proceed to consider the validity of this special contract. The same was entered into in the state of Minnesota and, under the weight of authority, is governed by the law of that state. Liverpool, etc., Steam Co. v. Insurance Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788, and numerous other cases cited in note on pages 125, 126, 88 Am. St. Rep. Notwithstanding this fact, however, we understand the rule to be that the same will not be given effect in the courts of this state if it is against the established public policy here. 11 Cur. Law 529, citing Carter v. Southern R. Co., 3 Ga.App. 34, 59 S.E. 209; Atlanta, etc., R. Co. v. Broome, 3 Ga.App. 641, 60 S.E. 355; International, etc., R. Co. v. Van Devanter, 107 S.W. 560. It does not appear that a statute exists in Minnesota relating to the right of a common carrier to limit its common-law liability in case of loss or damage to property in its custody. Hence it is presumed that the common-law rule is in force there. Rev. Codes 1905, § 7317, subd. 41. What is the public policy in North Dakota with reference to such contracts?

In many jurisdictions it is necessary to look to the decisions of the courts to ascertain its public policy, as they have no legislative declaration with reference thereto. Not so here as the Legislature has seen fit to settle the question by express statute. See chapter 59 of the Civil Code, being sections 5672 to 5701, inclusive, Rev. Codes 1905. Section 5677 provides: "The obligation of a common carrier cannot be limited by general notice on his part but may be limited by special contract." The next section provides: "A common carrier cannot be exonerated by any agreement made in anticipation thereof from liability for the gross negligence, fraud or willful wrong of himself or his servant." This section was amended in 1907 by eliminating the word "gross." See chapter 57, p. 83, Laws 1907. Such amendment is not material, however, as plaintiff's cause of action arose prior to its enactment. And the following section provides: "A passenger, consignor or consignee by accepting his ticket, bill of lading or written contract for carriage with knowledge of its terms, assents to the rate of hire, the time, place and manner of delivery therein stated. But his assent to any other modification of the carrier's rights or obligations contained in such instrument can only be manifested by his signature to the same." These sections were taken from the original Field Civil Code and were intended to provide a settled rule of construction upon this subject, the decisions respecting which were theretofore apparently in hopeless...