McIntosh v. Oregon Railway & Nav. Co.
| Decision Date | 28 October 1909 |
| Citation | 105 P. 66,17 Idaho 100 |
| Parties | EWEN McINTOSH, Respondent, v. THE OREGON RAILROAD AND NAVIGATION COMPANY, a Corporation, Appellant |
| Court | Idaho Supreme Court |
COMMON CARRIER-LIABILITY-SPECIAL CONTRACT-POWER TO MAKE-CONSIDERATION-REASONABLENESS-BURDEN OF PROOF.
1. A common carrier may limit its strict common-law liability as an insurer in such manner as the law can recognize as reasonable and not inconsistent with sound public policy, but cannot make a contract exempting the carrier from negligence.
2. Such contract must be reasonable, and must have some consideration to support it and not be opposed to public policy.
3. A railroad company, engaged in the business of common carrier is bound under the common law to receive and carry, within the class of goods it is engaged in carrying, such goods as are tendered for that purpose; and in the absence of a special contract, to carry them with the full common-law liability of a common carrier.
4. When a shipper goes to a carrier with a view of making a shipment and the carrier has different kinds of contract, one by which the carrier insures the goods shipped, and the other by which the shipper assumes all risk, it is incumbent upon the carrier to show the contract actually made.
5. The fact that the railroad company accepts the goods and agrees to ship them is not a sufficient consideration for the waiver on the part of the shipper of the carrier's liability as insurer. There must be some other consideration, such as a reduced rate.
6. A bill of lading which in terms is a receipt for the goods to be transported, which contains a statement that "This contract, and the responsibilities of the parties hereto, is limited and controlled by the conditions printed on the back hereof; as also by the terms and conditions of this company's printed tariffs, which are hereby declared to be an essential part to this contract," and upon the back of such bill of lading is the statement that the goods mentioned are received for carriage, subject to the condition that the carrier shall not be liable for any loss or damage by fire, does not show upon its face any consideration for such exemption, and such exemption is void as against the shipper unless it be shown by other evidence that there was a consideration for such exemption.
7. Where the evidence does not show that the agent of the carrier, or the shipper, knew that a special rate would be given, or was given, as a condition for an agreement upon the part of the shipper that the carrier should be exempt from liability for loss by fire, it is not error to sustain an objection to the question propounded to a clerk in the general freight department of such carrier, that such company had in force and effect two rates, one by which a less rate was charged, upon condition that the shipper waive the right to hold the carrier liable for loss by fire than was charged where no such condition was embraced in the contract.
8. Where a special contract is plead as a defense in an action to recover damages for loss of goods by a common carrier, the burden of proof is upon the carrier to prove the contract and to prove a consideration therefor; and the mere fact that the shipper accepts a bill of lading containing conditions of exemption, without such contract showing a consideration therefor, does not presume a consideration.
(Syllabus by the court.)
APPEAL from the District Court of the First Judicial District, for the County of Shoshone. Hon. W. W. Woods, Judge.
An action to recover damages for loss of goods received by a carrier for shipment. Judgment for plaintiff. Affirmed.
Judgment affirmed. Costs awarded to respondent.
W. W. Cotton, Featherstone & Fox, and W. A. Robbins, for Appellant.
Where the shipper accepts a special contract from the carrier, he is conclusively presumed, in the absence of fraud, imposition, accident or mistake, to have consented to all the terms and conditions contained in it, and he cannot afterward be heard to say that he did not read the instrument or did not know its contents. (St. Louis etc. Ry. v. Weakly, 50 Ark. 397, 7 Am. St. 104, 8 S.W. 134; Jones v. Cincinnati etc. Ry., 89 Ala. 376, 8 So. 61; Ryan v. Mo. Ry., 65 Tex. 14, 57 Am. Rep. 589; Western Ry. Co. v. Harwell, 91 Ala. 340, 8 So. 649; Rose v. Northern P. Ry., 35 Mont. 70, 88 P. 767; Lane v. Pacific etc. Ry., 8 Idaho 230, 67 P. 656; Mires v. St. Louis etc. Ry. (Mo. App.), 114 S.W. 1052; Inman v. Seaboard etc. Ry., 159 F. 960; Nashville etc. Ry. v. Stone, 112 Tenn. 348, 105 Am. St. 955, 79 S.W. 1031.)
The option of entering into a common-law contract or a special contract need not in fact be offered to the shipper. It is sufficient if either would have been given him had he demanded it. (Nashville etc. Ry. v. Stone, 112 Tenn. 348, 105 Am. St. 955, 79 S.W. 1031; Louisville etc. Ry. Co. v. Manchester Mills, 88 Tenn. 653, 14 S.W. 314; Louisville etc. Ry. v. Sowell, 90 Tenn. 17, 15 S.W. 837; Cau v. Texas & P. Ry., 194 U.S. 427, 24 S.Ct. 663, 48 L. ed. 1053; Mires v. St. Louis etc. Ry., supra.)
Plaintiff must make affirmative proof of want of consideration to avoid a special stipulation exempting the carrier from its common-law liability. The presumption is there was sufficient consideration for a limitation, and unless plaintiff proves absence of consideration by clear and satisfactory proof, the presumption of consideration will prevail. (Secs. 3314, 3315, Rev. Codes; secs. 1614, 1615, Deering's Ann. Cal. Codes; Henke v. Eureka Endowment Assn., 100 Cal. 429, 34 P. 1089; Schaller v. Chicago etc. Ry., 97 Wis. 31, 71 N.W. 1042; L. & E. Ry. Co. v. Holland, 162 Ind. 406, 69 N.E. 138, 63 L. R. A. 948; Evansville v. McKinney, 34 Ind.App. 402, 73 N.E. 148; Chicago etc. Ry. Co. v. Hare, 36 Ind.App. 422, 75 N.E. 867; United States etc. Co. v. Joyce, 36 Ind.App. 1, 69 N.E. 1015; Mires v. St. Louis etc. Ry. (Mo. App.), 114 S.W. 1052; Shelton v. St. Louis etc. Ry., 131 Mo.App. 560, 110 S.W. 627.)
Common carriers may by express terms or special contract with their employer be exonerated from that rigorous rule of the common law which in the absence of contract makes them insurers of the safety of the goods intrusted to them. (Hart v. Pennsylvania Ry. Co., 112 U.S. 331, 5 S.Ct. 151, 28 L. ed. 717; Railway Co. v. Lockwood, 17 Wall. 357, 21 L. ed. 627; Cau v. Texas & Pacific Ry., 194 U.S. 427, 24 S.Ct. 663, 48 L. ed. 1053; Re Released Rates, 13 Int. Com. Rep. 551; Hill v. Northern Pacific Ry. Co., 33 Wash. 697, 74 P. 1054; Peterson v. Seattle Traction Co., 23 Wash. 615, 63 P. 539, 65 P. 543, 53 L. R. A. 586; Mires v. St. Louis etc. Ry., supra; Saunders v. Southern Pacific Ry. Co., 128 F. 19; Hutchinson on Carriers, 3d ed., sec. 401.)
J. E. Gyde, for Respondent.
There was no consideration for the contract limiting the liability of defendant from its common-law liability of an insurer. There must be such a consideration. (Lake Erie R. Co. v. Holland, 162 Ind. 406, 69 N.E. 138, 63 L. R. A. 948; Chicago I. & L. R. Co. v. Hare, 36 Ind.App. 422, 75 N.E. 867; Ficklin v. Wabash R. R. Co., 117 Mo.App. 221, 93 S.W. 847; Scott County Mill Co. v. Railroad Co., 127 Mo.App. 80, 104 S.W. 924; St. Louis etc. R. R. Co. v. Pearce, 82 Ark. 353, 101 S.W. 760; Southern Express Co. v. Hill, 81 Ark. 1, 98 S.W. 371.)
When a bill of lading contains restrictions upon the carrier's common-law liability, the court will not presume, in the absence of testimony, that it was done upon a proper and sufficient consideration. (McMillan v. Mich. S. & N. I. R. Co., 16 Mich. 79, 93 Am. Dec. 208.) When there is but one contract open and offered to the shipper by a common carrier and no option is given him, a special provision limiting the common-law liability of the "carrier to loss or damage occasioned by wrongful acts or gross negligence" is without consideration. (Illinois Cent. R. Co. v. Lancashire Ins. Co., 79 Miss. 114, 30 So. 43.)
The clause in the bill of lading limiting defendant's liability will not be held valid on the ground that a reduced rate was intended, no rate being specified, and none being talked of by the parties. (Phoenix Powder Co. v. Wabash R. Co., 101 Mo.App. 442, 74 S.W. 492, 196 Mo. 663, 94 S.W. 235, 120 Mo.App. 566, 97 S.W. 256; Kellerman v. Railroad Co., 136 Mo. 177, 34 S.W. 41, 37 S.W. 828.) The contract limiting the liability of the carrier must be strictly construed against the carrier. (Elliott on Railroads, 2d ed., sec. 1505.)
Where the consideration for limitation of liability is a reduced freight rate, it must appear that both rates of transportation are reasonable. A rate fixing the common-law liability at twenty per cent more than the limited liability is unreasonable.
This action is to recover damages for the alleged failure of the defendant to safely transport and deliver to plaintiff certain grain received by plaintiff as a common carrier. In substance the complaint alleges: That the defendant, as a common carrier, received from the Tekoa Mill and Grain Company a certain quantity of wheat and oats, the property of the plaintiff, and thereupon undertook and agreed to safely transport the same from the said town of Tekoa to the town of Wardner, in the county of Shoshone, state of Idaho, and deliver the same at the said town of Wardner to the plaintiff, for a reasonable reward to be paid to the defendant by the plaintiff upon the safe delivery of the said wheat and oats; that the defendant did not safely or otherwise carry or deliver the said wheat and oats, or any part thereof, but, on the contrary, the said defendant has wholly refused to deliver the same or any part thereof to the plaintiff. Wherefore damages are demanded.
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