Orndorff & Co. v. Adams Express Co.
| Decision Date | 04 February 1867 |
| Citation | 66 Ky. 194 |
| Parties | Orndorff & Co. v. Adams Express Co. |
| Court | Kentucky Court of Appeals |
1. A public notice given by a common carrier, brought home to the knowledge of the shipper, enters into the contract of affreightment, so far as the carrier has the right to impose such terms, either by express or implied contract, not however, inconsistent with the express contract; but such notice will be considered in construing the contract when its terms do not conflict with the express undertaking.
2. A common carrier, by notices, cannot exempt himself from losses by the malfeasance, misfeasance, or gross negligence of himself or his servants. If, therefore, he or they convert the goods to a wrong use, or make a wrong delivery to a person not entitled to them, or are guilty of gross negligence in the carriage or care of them, the loss must be borne by the carrier. (Story on Bailments, sec. 570.)
3. In cases of notices, the carrier is liable for losses and injuries occasioned, not only by gross negligence, but by ordinary negligence, or, in other words, the carrier is bound to ordinary diligence. (Story on Bailments sec. 571.)
4. " Valued under fifty dollars, unless otherwise herein stated. " The foregoing notice or stipulation is embodied in the receipt or bill of lading which the Adams Express Company gave for eight boxes of boots and shoes, which said company undertook to carry from Louisville to Russellville. Held --The Express Company could not exonerate itself from liability for gross or even ordinary, neglect, by any such stipulation, even if it should be considered that the words in the receipt amounted to such a covenant; but to allow such a limitation in cases of gross neglect and conversion, would recognize their right to convert other people's property to their own use at their own price.
APPEAL FROM LOGAN CIRCUIT COURT.
J. R. UNDERWOOD, For Appellants,
CITED--
LOUISVILLE, August 31st, 1861.
Received of Low & Whitney eight boxes boots and shoes, marked J. G. Orndoff & Co., Adairsville, Kentucky, to be forwarded to Russellville only. It is further agreed, and is part of the consideration of this contract, that the Adams Express Company are not to be responsible, except as forwarders, for any loss or damage arising from the dangers of railroad, steamboat, or river navigation, leakage, fire, or from any other cause whatever, unless the same be proved to have occurred from the fraud or gross negligence of ourselves, our agents or servants; and we, in no event, to be liable beyond our route, as herein receipted.
Value under fifty dollars, unless otherwise herein stated. All articles of glass will be taken at shipper's risk only, the company refusing to be responsible for any injury by breakage or otherwise.
This lot of boots and shoes, at wholesale prices, were worth three hundred and seventy-six dollars and fifty cents; but the Express Company insists that their responsibility cannot exceed fifty dollars; and if this be correct, the judgment is right, but if not, it is erroneous.
As there is no allegation that such a contract was in derogation of the legal rights of this corporation, as defined in its charter, nor authorized by it, we shall only consider the law as applicable to common carriers in general; still, as corporations are mere artificial persons, having no natural rights but only such as are conferred upon them by the terms of their charters, it may be well conceived that natural persons engaged in the carrying business would have capacities to contract and thereby limit their responsibilities, which might not pertain to a corporation and which public policy, as well as the laws of the land, might refuse to this class of common carriers; for these undertake responsibilities to the public and individuals, in consideration of the exclusive and special privileges conferred by the charter; and it being in the nature of a contract between the sovereign and the company, and the latter having received the consideration, elements enter into the discharge of their duties not pertaining to natural persons as common carriers; and whether corporations should be allowed, by either notice or express contract, to limit their undertakings as expressed in the charter, or by an...
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