Larsen v. Oregon Short Line Railroad Co.

• Decision Date: 02 September 1910
• Docket Number: 2140
• Citation: 110 P. 983,38 Utah 130
• Court: Utah Supreme Court
• Parties: LARSEN v. OREGON SHORT LINE RAILROAD COMPANY

110 P. 983

38 Utah 130

LARSEN v. OREGON SHORT LINE RAILROAD COMPANY

No. 2140

Supreme Court of Utah

September 2, 1910

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by Clara Larsen against the Oregon Short Line Railroad Company.

Judgment for defendant. Plaintiff appeals.

AFFIRMED.

A. F Thomas for appellant.

P. L Williams, Geo. H. Smith, Frank K. Nebeker and H. B. Thompson for respondent.

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

OPINION

FRICK, J.

Appellant in her complaint in substance alleged: That on the 29th day of May, 1907, she was the owner of certain household goods, "consisting of a roll of carpet, including one feather bed, four pillows, and three boxes of other household goods, which upon said date she delivered into the said defendant's (respondent's) possession as a common carrier, at Blackfoot, Idaho, to be safely carried to Salt Lake City, Utah." That respondent's charges for freight for transporting said goods, and which appellant paid to it, amounted to two dollars and three cents. "That defendant did not safely carry said goods, but while said goods were in the possession, custody, and control of said defendant said goods became wholly lost to this plaintiff." Appellant alleged the reasonable value of the goods, and prayed for judgment for such value, together with the freight paid as aforesaid. Respondent admitted that it carried on the business of a common carrier in the states of Idaho and Utah, and denied every other allegation in the complaint. As an affirmative defense respondent averred that, at the time and place stated in the complaint, it had received certain goods from appellant which were consigned to her at Salt Lake City, and which goods respondent undertook to transport as a common carrier for hire; that at the time said goods were accepted for shipment "the plaintiff (appellant) agreed with the defendant that, in consideration of a lower rate being applied to said shipment than would otherwise be charged by the said railroad company, the defendant agreed that the value of said property did not exceed five dollars per hundredweight, and thereby assumed all risks necessary to receive such benefit of reduced rates; that said goods were of a gross total weight of two hundred and ninety pounds, which at five dollars per hundredweight, would amount to fourteen dollars and fifty cents, and for which amount this defendant acknowledged itself to be indebted to the plaintiff, and hereby tenders said sum, together with the sum of two dollars and three cents, freight charges heretofore paid by plaintiff to defendant." To this defense appellant filed a reply in which she denied the foregoing averments, but further stated "that on the receipt or bill of lading given to this plaintiff there may have been certain needle eye lettered stipulations somewhat to the effect as it is set out in said answer." It is further alleged in the reply that said alleged agreement was "without consideration, unfair, unreasonable, and unlawful, and fraudulent, and against public policy." The case was tried and submitted to the court without a jury. The court, in substance, found that at the time and place alleged in the complaint appellant was the owner of certain household goods and wearing apparel of the value of one hundred and seventeen dollars, weighing two hundred and ninety pounds; that said property was at the time and place alleged in the complaint delivered by appellant to respondent to be by it safely carried to Salt Lake City, Utah; that appellant paid respondent as charges for transporting said goods the sum of two dollars and three cents which respondent accepted, and issued to appellant a certain bill of lading, upon the back of which was an agreement or stipulation "which was in plain large type, separated from any other stipulation of the contract or bill of lading and separately signed." The stipulation referred to is as follows: "Release. I hereby certify, that I desire to receive the benefit of any lower rate provided for freight conditional upon carrier being released, or at owner's risk; and in consideration of such lower rate being applied on the within named shipment, I hereby assume all risk necessary to receive such benefit. It is also hereby agreed that the value of the property does not exceed five dollars per hundredweight. May 29, 1908. Clara Larsen, Shipper." The court further found that respondent's agent handed appellant said bill of lading, and that she signed her name thereto without reading or knowing the contents thereof; that at Blackfoot, Idaho, where appellant shipped her goods, respondent kept a book, which was in the possession of said agent, containing the different freight rates or charges for shipments "of the same articles under different liabilities for loss by the defendant, if it should occur, and any person upon request had access to said book; but no discussion occurred there between the plaintiff and defendant's agent relating to different rates;" that the goods shipped by appellant and delivered to respondent as stated were never redelivered to appellant and were wholly lost to her. Upon these findings, the court made conclusions of law as follows: "That said release or agreement in said bill of lading, signed by said plaintiff, wherein the limitation of defendant's liability for loss is placed at five dollars per hundredweight, is fair, equal, reasonable, and valid, and therefore binding. That said plaintiff is entitled to recover for the goods lost at the rate of five dollars per hundredweight, and two dollars and three cents freight charges, the amount tendered by defendant." Judgment was duly entered in accordance with the conclusions of law. The appeal is upon the judgment roll, without a bill of exceptions.

Counsel for appellant in his assignment of errors complains only of the conclusion of law and the judgment based thereon. He contends that the court erred in enforcing the agreement set forth in the findings of fact wherein the parties agreed upon and fixed the value of the household goods. It is asserted that this contention is supported by what is decided in the case of Houtz v. U. P. Ry. Co., 33 Utah 175, 93 P 439, 17 L. R. A. (N. S.) 628, where in passing upon the question whether a common carrier of property could by contract in advance limit or avoid liability for injury and consequent damages to property transported caused by negligence or misconduct of the carrier or its servants, and where the rule adopted by us is stated in the headnotes as follows: "A carrier cannot by contract exempt itself from, nor limit its liability for, the loss of or damage to property caused by its negligence or misconduct, or that of its servants." The question passed on there is, however, not presented in this case; and in order to avoid, if possible, all...