Hix v. E. S. S. Co.

Decision Date07 December 1910
Citation107 Me. 357,78 A. 379
PartiesHIX et al. v. EASTERN S. S. CO.
CourtMaine Supreme Court

Exceptions from Superior Court, Cumberland County.

Action by Harry F. Hix and others against the Eastern Steamship Company. Verdict for plaintiffs, and defendant moves for a new trial and files exceptions. Exceptions sustained.

Action of assumpsit brought in the superior court, Cumberland county, to recover the sum of $148 for injuries alleged to have been sustained by the plaintiffs, by reason of the defendant's failure to transport, in a proper manner, safely and securely, one bay mare, which the plaintiffs delivered to the defendant at Boothbay Harbor, for transportation over one of the defendant's steamers to Portland. Plea, the general issue with brief statement alleging that at the time of the delivery of the horses by the plaintiffs to the defendant, to be carried on its steamer to Portland, the plaintiffs "entered into a special contract with the defendant respecting the terms under which the carriage of said horses was to be performed," etc. Verdict for plaintiffs for $168.03. The defendant filed a general motion for a new trial and also excepted to several rulings made during the trial. Motion not considered. The case is stated in the opinion.

Argued before EMERY, C. J., and SAVAGE, PEABODY, SPEAR, CORNISH, and KING, JJ.

Williamson & Burleigh, for plaintiffs.

Benjamin Thompson, for defendant.

CORNISH, J. This case is before the law court on motion and exceptions by defendant, but it is only necessary to consider the exceptions.

On May 27, 1907, the plaintiff shipped from Boothbay Harbor to Portland, on one of the defendant's line of steamers, two horses, one of which was injured in transit. The horses were delivered to the defendant, not by the plaintiffs in person, but by one Reed, their employé, who at the time of delivery joined with the agent of the company in signing duplicate bills of lading, in the form, "Eastern S. S. Co. by R. A. Lewis, Agent, and Hix & Clark by A. B. Reed." One of these bills was retained by the purser of the steamer and the other was taken by Reed and delivered to Mr. Hix. This bill of lading was designed to constitute a special contract between shipper and carrier, limiting the responsibility of the carrier far within the bounds of its common-law liability as an insurer, and imposing certain stipulated duties and obligations upon the shipper. The extent and scope of these modifications it is unnecessary to consider in this opinion, any further than to say that they apparently were not designed to relieve the company from the results of its own negligence or that of its employés.

The plaintiffs contend that they are not bound by the contract signed by Reed, as he had no authority to sign it in their name, that they never assented to or accepted its terms, and that therefore the common-law liability of the defendant remained unmodified. The presiding justice, against the written request of the defendant for instructions to the contrary, left the question of the existence or nonexistence of the special contract to the jury as a matter of fact, and then instructed them fully as to the common-law liability of the defendant, in the absence of any modifying contract, and its liability for want of due care merely, if such a contract had been made. The jury found for the plaintiff generally, and it is therefore impossible to ascertain whether the verdict is based upon a finding that the plaintiffs were not bound by the contract, but could recover as at common law, or that they were bound by the contract, but could recover by reason of the defendant's negligence. This was error. The jury should have been instructed, as requested by the defendant, "that the evidence in the case shows, as a matter of law, that a contract was made between the plaintiffs and the defendant, by virtue of which the defendant's liability as carrier was limited," and then the case should have been submitted to the jury on the question of defendant's negligence.

No principle of law is now more firmly established than that a common carrier, in the absence of any statute to the contrary, may by special contract limit its liability, at least, against all risks but its own negligence or misconduct. Fillebrown v. G. T. Ry. Co., 55 Me. 462, 92 Am. Dec. 606; Morse v. Railway Co., 97 Me. 77, 53 Atl. 874; Gerry v. Amer Exp. Co., 100 Me. 519, 62 Atl. 498.

A careful examination of the undisputed facts in this case leads to the indisputable conclusion that a special contract was entered into between these parties, and therefore the question of its existence or nonexistence was one of law for the court, and not of fact for the jury, a situation more likely to arise in commercial transactions than in cases of...

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3 cases
  • Savell v. Hayward
    • United States
    • Maine Superior Court
    • February 27, 2015
    ...read it, or was otherwise informed of its contents, and was willing to assent to its terms without reading it." Hix v. E. S.S. Co., 107 Me. 357, 78 A. 379, 381 (1910); see also Francis v. Stinson, 2000 ME 173, ¶ 42, 760 A.2d 209, 217-18 ("As a matter of general contract law, parties to a co......
  • Moore v. Ziba Bennitt & Co.
    • United States
    • Arkansas Supreme Court
    • January 31, 1921
  • Young v. Maine Cent. R. Co.
    • United States
    • Maine Supreme Court
    • February 27, 1915
    ...may by special contract limit its liability, at least against all risks but its own negligence or misconduct. Hix v. Eastern Steamship Company, 107 Me. 357, 78 Atl. 379. But a qualification of the carrier's right to restrict his common-law responsibility, almost as generally recognized as t......

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