Normile v. Oregon R. & Nav. Co.

• Citation: 69 P. 928,41 Or. 177
• Parties: NORMILE v. OREGON R. & NAV. CO.
• Decision Date: 11 August 1902
• Court: Supreme Court of Oregon

69 P. 928

41 Or. 177

NORMILE v. OREGON R. & NAV. CO.

Supreme Court of Oregon

August 11, 1902

Appeal from circuit court, Clatsop county; T.A. McBride, Judge.

Action by S. Normile against the Oregon Railroad & Navigation Company. Judgment for plaintiff. Defendant appeals. Reversed.

This is an action to recover the value of a mule, which, with other stock, the defendant, it is alleged, undertook and agreed for the consideration of $15, to transport from Portland to Astoria, skillfully and safely, and there deliver to plaintiff in good condition. It is further alleged that the defendant is a common carrier, and engaged in that business and that it placed the stock, consisting of eight head of horses and two head of mules, on board its steamer Hassalo to transport the same to Astoria, but did not transport it safely or in good condition, and did not use due or ordinary care in the handling and delivery thereof, but that upon the arrival of said steamboat at the port of Astoria, and while the animals were still in its possession, defendant wrongfully, carelessly, and negligently tied one of the mules to a small, light plow, painted red, by reason whereof said animal, although gentle and tractable, by moving its head also moved the plow, which was wholly detached, and, becoming frightened, ran away and was injured.

Two defenses are interposed. By the first it is alleged that the parties entered into a written contract concerning the shipment and transportation of the stock; that the defendant received, and, with due care and diligence, safely transported and delivered, the same, and the whole thereof to plaintiff at Astoria, in like condition as when received, in accordance with the terms of said shipment and the conditions of said contract; that immediately upon the arrival of said stock at the port of Astoria, the plaintiff took into his possession, receipted to the defendant therefor, and paid the defendant the agreed compensation of $15 for its carriage and delivery. The second defense is partial only, wherein it is alleged that, by the terms of the written contract, it was agreed and provided that the value of the stock did not exceed $100 for each head, and that the recovery, if any be had, should not exceed that sum. The reply alleges that the defendant is a common carrier, as set up in the answer, and is required and enjoined by law to carry all freight and live stock that may be delivered to it safely and securely, and deliver the same, in as good condition as when received, to its owner at the termination of the shipment; that the alleged and pretended contract set forth by defendant is fraudulent and void, for the reason that at the date of its execution the regular price charged by said company for transporting horses and mules from Portland to Astoria was $1.50 per head, which price was charged to the plaintiff, but that by the terms of the said alleged agreement it is attempted to limit the value of said stock and defendant's liability therefor, contrary to law and public policy; and for the further reason that P. Schrader signed the said agreement without having an opportunity to read it, and was compelled thereto before defendant would receive and transport said stock. It is further alleged that defendant refused to permit the plaintiff to load, or assist in loading or unloading, said animals on or off the boat, but that defendant, without authority from plaintiff, wrongfully and unlawfully, and in violation of the terms of said contract, of its own volition, loaded the horses and mules on said boat, and unloaded them off the same, and tied them on the wharf and in the warehouse of defendant at Astoria, and while in the possession of defendant, and in the unloading, the injury to said mule occurred, all without any fault of plaintiff, but by reason of the carelessness and negligence of the defendant. There was evidence tending to show that Schrader, who was acting for plaintiff, delivered the animals to the defendant at Portland for shipment to Astoria; that the deck hands put them aboard the boat; that when he arrived at Astoria he went ashore, after the boat had been there a little while; that the horses were then unloaded, and tied on the dock; that he did not know when they were taken off the boat, as he was asleep at the time, and was not notified; that no one else had charge of the stock but him; that he started to take the horses, but was notified that the freight would have to be paid before he could proceed; that he went at once to plaintiff's house near by, who was then not out of bed; that in the course of a half an hour plaintiff appeared, paid the freight, and receipted for the stock, and that as soon as this was done Schrader attempted to take four of the horses away, whereupon the mule, seeing the horses start, made an effort to follow them, and in doing so shifted the plow, which frightened it, and the injury ensued; and that Schrader paid his own fare to Astoria. The bill of lading signed by Schrader was offered on the part of the defense, and admitted in evidence. Upon the cause being submitted, plaintiff obtained a judgment for $150, and the defendant appeals.

W.C. Bristol, for appellant.

C.W. Fulton, for respondent.

WOLVERTON J. (after stating the facts).

At the threshold of the controversy, counsel for defendant insists that, as plaintiff did not declare upon the special contract entered into by the parties respecting the shipment, as evidenced by the bill of lading, he should have been denied relief because of a variance in the proof. The plaintiff has a legal right to pursue the form of action adopted (3 Enc.Pl. & Prac. 818), but having thus made his election, he must recover upon the common-law liability, or not at all, and a valid special contract of the parties, providing or stipulating for a different or restricted liability in the particular or particulars relied upon for recovery, will not, in reason and good practice, support the action. It is seldom that bills of lading showing the contractual and correlative relations and obligations of the carrier and shipper relative to the shipment are drafted with a view to changing or restricting all the common-law liabilities to which the carrier is subjected; and if any remain upon which an action may be founded and recovery had without coming in conflict with special limitations and restrictions, there exists no reason why the common-law action may not be maintained, notwithstanding the special contract. To illustrate: If there be a special restriction on account of loss occasioned by fire or by robbery, that, of itself, could not prevent a recovery upon the common-law liability in a failure to carry safely in other respects. Ordinarily, the common carrier is considered and treated as an insurer of the goods it undertakes to carry, and all limitations of common-law liabilities are in the nature of exceptions to its general undertaking; and hence, in order to avoid such liabilities, the exceptions must be pleaded. Thus it has been held in Railway Co. v. Nicholson, 2 Willson, Civ.Cas.Ct.App. § 168, that "in an action against a common carrier, founded on the common-law liability of such carrier, it is not necessary to produce in evidence a bill of lading of the property alleged to have been lost or injured. If there was a special contract, restricting the common-law liability of the carrier, it devolved upon the carrier to allege and prove it." To the same purpose is Coupland v. Railroad Co., 61 Conn. 531, 23 A. 870, 15 L.R.A. 534, a case of much analogy to the present. See, also, Tuggle v. Railway Co., 62 Mo. 425, and the reasoning of Mr. Justice Graves in Railroad Co. v. Perkins, 25 Mich. 329, 12 Am.Rep. 275. And this is just what the defendant has done in the case at bar. It has set up that, by a special agreement, the plaintiff limited himself in his recovery to $100. The plaintiff replied that the alleged agreement was void, as being contrary to sound public policy. If void, the defendant's common-law liability remains unchanged and unrestricted in that particular, and the special contract cannot stand in the way of plaintiff's recovery by the common-law form of action. If, however, the special agreement is found legal and binding, there is a variance fatal to that form of action, and the plaintiff must be remitted to the special contract and an action thereon. Railroad Co. v. Remmy, 13 Ind. 518; Railroad Co. v. Bennett, 89 Ind. 457; Hall v. Pennsylvania Co., 90 Ind. 459; Snow v. Railway Co., 109 Ind. 422, 9 N.W. 702; White v. Railway Co., 2 C.B. (N.S.) 7.

It is suggested by counsel for plaintiff that, after having alleged negligence on the part of the defendant in securing the mule in the manner described, it could make no difference whether it was acting in the capacity of a common carrier or a warehouseman; it would be liable in either capacity. But the action is essentially grounded upon the failure of the company, through its negligence, to transport and deliver safely, and not upon any negligence in properly storing the property to await its reception by the shipper. The complaint proceeds upon that idea, and the reply is in reaffirmation of it. So that recovery must be had, if at all, against the defendant in its capacity as a common carrier, and not a warehouseman. This brings us to the contention of the defendant that it was relieved of liability under the complaint when the transfer of the stock was made from the boat to the wharf. There is an irreconcilable conflict in the authorities as to when the duties of a common carrier cease and those of a warehouseman begin, where freight is carried to its destination, and unloaded, and put in a place usual and convenient for its reception by the shipper. Many of the...