Houtz v. Union Pac. R. Co.

• Decision Date: 27 January 1908
• Docket Number: 1765
• Citation: 33 Utah 175,93 P. 439
• Court: Utah Supreme Court
• Parties: HOUTZ v. UNION PAC. R. CO

93 P. 439

33 Utah 175

HOUTZ v. UNION PAC. R. CO

No. 1765

Supreme Court of Utah

January 27, 1908

APPEAL from District Court, Second District; J. A. Howell, Judge.

Action by John S. Houtz against the Union Pacific Railroad Company. From a judgment in favor of defendant, plaintiff appeals.

REVERSED AND REMANDED.

Heywood & McCormick for appellant.

P. L Williams, Geo. H. Smith, and Jno. G. Willis for respondent.

STRAUP J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

This is an action to recover damages for an injury to live stock, consisting of sheep, alleged to have been occasioned through the negligence of the defendant, a common carrier, in transporting the sheep from Soda Springs, Idaho, to Omaha, Nebraska. The case was tried to the court, who, among other things, found that the defendant, at Schuyler, Neb., negligently delayed the carriage of the sheep, and there negligently held and confined them on its cars for a period of seventy-two hours, and at a place where the sheep could neither be unloaded, watered, nor fed; that during the time the sheep were there delayed the plaintiff frequently urged the defendant to transport and convey the sheep to a place where they could be unloaded, fed, and watered, and, although the defendant could well have done so, nevertheless it negligently failed and refused to do so; and that in consequence thereof the plaintiff was damaged in the sum of $ 1,326 by an excess shrinkage in weight of the sheep, and in the further sum of $ 954 because of a drop in the market occurring within the time of the negligent delay and detention. The court further found that the plaintiff and defendant entered into a written contract by the terms of which it was stipulated (quoting from findings); (1) That the carrier shall not be liable for the loss or damage of, nor for any injuries received by, any of said stock, unless the same is the direct result of willful misconduct or actual negligence of said carriers, their agents, servants, or employers. (2) That the shipper agreed to load and unload and reload all said stock at his own expense, and to feed, water, and attend to the same at his own risk, while it was in any stockyard. (3) That the shipper assumed all the risk of any of them being weak and maiming each other or themselves in consequence of cold or suffocation or any other defects, and the shipper agreed to assume all the risk of damage which may be sustained by reason of delay in transportation, or loss or damage for any other cause, or anything not resulting from the willful negligence of the defendant. (4) It is also specially agreed and provided that the defendant should not be liable for any loss or damage to said stock by causes beyond its control, or by floods or fire, shrinkage in weight, changes in weather, heat or cold, or any other thing or cause not directly the result of gross negligence on the part of said defendant, its agents, or servants. (5) Said contract further provided that unless claims for loss or damage or detention are presented within 10 days from the date of unloading said stock at destination, and before said stock has been mingled with the other stock, such claims shall be deemed to be waived, and the defendant under said contract was discharged from all liability thereby. (6) It was still further provided in said contract that the rules, regulations, and conditions prescribed by the defendant for the transportation of live stock, as evidenced by their published tariffs, classifications, and circulars in force and effect at said time, were binding upon said plaintiff, and that the signing of the contract by the shipper, or his agent, was and should be conclusive evidence of the knowledge, assent, and agreement to each and every stipulation and condition thereof by said shipper, the plaintiff." It was further found that no claim was presented to the defendant within ten days, nor before the mingling of the sheep with other sheep, and not until twenty-four days after the sheep reached their destination, and that the "provision requiring the claim to be presented within 10 days after the unloading of the sheep and before the sheep had been commingled with other sheep is a reasonable provision under the circumstances." Judgment was rendered for the defendant on the sole ground that the claim was not presented "within ten days after the arrival of the sheep at their destination and before having been mingled with other sheep." The plaintiff appeals.

The only question presented by the appeal is with respect to the validity and effect of the contract. As a general rule common carriers are held liable as insurers of property intrusted to them, and are held responsible for any loss of or damage to the property, unless occasioned by the act of God or by the public enemy. The law is, however, well settled in this country that the carrier's liability as an insurer may be limited by special contract, when fairly entered into and reasonable in its terms, and that it may limit its commonlaw liability for any loss, provided such loss is not the result of its negligence or misconduct, or that of its servants. The rule is equally well settled that the carrier cannot make a valid contract by which it is to be exempt from liability for any loss or damage resulting from its misconduct or negligence, or that of its servants; nor can its liability for a failure to exercise a proper degree of care in the transportation of property intrusted to it be limited by special contract. (Williams v. O. S. L. R. Co., 18 Utah 210, 54 P. 991, 72 Am. St. Rep. 777; 5 Am. & Eng. Ency. Law 288-308, and cases there cited.) These principles, of course, are not disputed. The contention made by respondent is that the stipulation requiring the presentation of a claim as a condition precedent of liability is not violative of these principles. The action was grounded on defendant's negligence. The court found plaintiff's loss and damage to be the result of such negligence. That the provisions of the contract whereby it was stipulated that the plaintiff assumed all risk of damage which might be sustained by reason of delay in transportation, or loss or damage for any other cause or thing not resulting from the willful or gross negligence of the defendant, and all other provisions exempting the defendant from or limiting its liability for loss or damage resulting from its failure to exercise a proper degree of care, contravene public policy, and are void, is not seriously disputed.

For the same and other reasons not necessary to here state, it may be said that paragraph 6 of the contract is also invalid.

At a former hearing of this case we rendered an opinion, which was filed, but not published, wherein it was in effect held by us that the stipulation in the contract requiring the presentation of a claim as a condition precedent of liability for loss or damage should only apply to and be given effect in case of a loss or damage not occasioned by the defendant's negligence or misconduct; and, as the court found plaintiff's damage to be the result of defendant's negligence, the stipulation was held to be inoperative. We reached this conclusion upon the theory that, when an injury has been sustained by the negligence of the carrier, a complete cause of action arose upon the infliction of the injury; that to permit the carrier by special contract to make an additional requirement, such as the presentation of a claim as a condition precedent of liability, and before a right of action existed, restricted or limited the right which the shipper would have to maintain an action for such negligence, and to that extent limited or conditioned the carrier's liability for negligence; that, if it was against public policy to permit a carrier in advance to contract against its negligence, then it followed that it could not by special contract in advance impose conditions precedent of liability for a loss or damage occasioned by its negligence; that, if such a condition as here could be lawfully imposed, then other conditions could also be imposed, if fairly entered into, and if found to be reasonable under the circumstances of the case; and hence the stipulation, when applied to a loss or damage occasioned by the negligence of the carrier, was against the policy of the law and ineffectual. These views seem to be supported by the following authorities: 6 Cyc. 505; Mo. P. Ry. Co. v. Harris, 67 Tex. 166, 2 S.W. 574; Ormsby v. U. P. R. Co. (C. C.), 4 F. 706; Smitha v. L. & N. R. R. Co., 86 Tenn. 198, 6 S.W. 209; So. Express Co. v. Crook, 44 Ala. 468, 4 Am. Rep. 140; So. Exp. Co. v. Bank of Tupelo, 108 Ala. 517, 18 So. 664; Baltimore & Oh. Exp. Co. v. Cooper, 66 Miss. 558, 6 So. 327, 14 Am. St. Rep. 586; Sandford v. Housatonic R. R. Co., 11 Cush. (Mass.) 155; Adams Exp. Co. v. Reagan, 29 Ind. 21, 92 Am. Dec. 332; G., C. & S. F. Ry. Co. v. York & Johnson, 2 Willson, Civ. Cas. Ct. App. Sec. 813. The rule in 6 Cyc. 505, supra, is stated as follows:

"It is usual to insert in bills of lading, or other contracts for shipment, a stipulation that written notice of a claim for loss of or damage to the goods shall be given to the agents of the carrier within some specified time, such as thirty or ninety days, and that unless such notice is given there will be no liability on the part of the carrier, and such stipulations are generally upheld so far as they are found to be reasonable. Cases holding such stipulations to be invalid are usually based on the ground that the terms thereof are unreasonable, rather than on the general invalidity of such conditions. But they are regarded as limitations of the carrier's liability, and therefore as ineffectual against a claim for loss or injury due to the carrier's...