Pacific Exp. Co. v. Foley

• Decision Date: 09 May 1891
• Parties: PACIFIC EXP. CO. v. FOLEY.
• Court: Kansas Supreme Court

26 P. 665

46 Kan. 457

PACIFIC EXP. CO. v. FOLEY.

Supreme Court of Kansas

May 9, 1891

Syllabus

1. Where the receipt or contract of a common carrier contains a stipulation that the company is not to be held liable for any loss or damage, except as forwarders only, nor for any loss or damage of any box, package, or thing for over $50, unless the just and true value thereof is stated in such receipt and where the receipt fails to show any value of the box or goods shipped, the receipt or contract, if fairly and voluntarily entered into, will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, when the loss or injury to the box or goods carried results only from slight, common, or ordinary negligence on the part of the carrier, its agents or servants.

2. The case of Kallman v. Express Co., 3 Kan. 205, referred to and commented on.

3. Railroad Co. v. Simpson, 30 Kan. 645, 2 P. Rep. 821 distinguished, as the carrier in that case arbitrarily and unfairly fixed in the bill of lading or receipt a limitation on the value of the property shipped.

VALENTINE, J., dissenting.

Error from district court, Douglas county; A. W. BENSON, Judge.

On the 4th day of November, 1887, Peter T. Foley brought his action against the Pacific Express Company before a justice of the peace of Douglas county to recover $175, for damages alleged to have been sustained by him in the transportation of a box containing type and electrotype plates from Kansas City, Mo., to Lawrence, in this state, on October 15, 1887, from the A. N. Kellogg Newspaper Company at Kansas City, Mo., by the Pacific Express Company. The following is a copy of the receipt given by the express company for the box in controversy:

“ Read this receipt.

The Pacific Express Company.

“ Not negotiable.

“ Received from ___ the following articles, which we undertake to forward to the point nearest to destination reached by this company only, perils of navigation excepted. And it is hereby expressly agreed that the said Pacific Express Company are not to be held liable for any loss or damage, except as forwarders only, nor for any loss or damage of any box, package, or thing for over $50, unless the just and true value thereof is herein stated, nor for any loss or damage by fire, the acts of God, or of the enemies of the government, the restraint of governments, mobs, riots, insurrections, or pirates, or from any of the dangers incident to a time of war; nor upon any property or thing, unless properly packed and secured for transportation; nor for any fragile fabrics, unless so marked upon the package containing the same; nor upon any fabrics consisting of or contained in glass. If any sum of money, besides the charge for transportation, is to be collected from consignee on delivery of the property described herein, and the same is not paid within thirty days from date hereof, the shipper agrees that this company may return said property to him, at their option, at the expiration of that time, subject to the conditions of this receipt, and that he will pay the charges for transportation both ways, and that the liability of this company for such property, while in its possession, for the purpose of making such collection, shall be that of warehousemen only. And it is further agreed that the said Pacific Express Company shall not be held liable for any claim, of whatsoever nature, arising from this contract, unless such claim shall be presented in writing sixty days from date hereof, in a statement to which this receipt shall be annexed; and the shipper and owner hereby severally agree that all the stipulations and conditions in this receipt contained shall extend to and inure to the benefit of each and every company or person to whom the Pacific Express Company may intrust or deliver the above-described property for transportation, (which the said Pacific Express Company is hereby authorized to do,) and shall define and limit the liability therefor of such other company or person:

A. L. Willams and Chas. Monroe, for plaintiff in error.

John Hutchings, for defendant in error.

OPINION

HORTON, C. J.,

(after stating the facts as above .) The principal question in this case is, what effect is to be given to the following language of the receipt executed by the express company? "It is hereby expressly agreed that the said Pacific Express Company is not to be held liable for any loss or damage, except as forwarders only; nor for any loss or damage of any box, package, or thing for over $50, unless the just and true value thereof is herein stated." It appears that the type and electrotype plates were shipped from Kansas City to Lawrence by the A. N. Kellogg Newspaper Company, who, in making the shipment, acted for Peter T. Foley. It also appears that the newspaper company had a receipt-book furnished by the express company, and in the heading to each page were printed conditions, and, among others, the one quoted. The newspaper company, having this book in its possession and control, and using it from day to day, must be presumed to have known of its conditions, and to have shipped with reference to it. In this they acted for the plaintiff, and he must be presumed to have assented to the terms and conditions of the receipt. The jury made the following special findings in answer to questions submitted to them:

"Question. Was not the box containing the type and electrotypes in controversy broken while it was still in the car in which it was brought from Kansas City? Answer. It was found broken in the car.

Q. If you should find that said box was broken open by any negligence of the company, state what act or thing caused said box to be broken.

A. We do not know.

Q. Do the jury know where on the journey the box was broken open? If so, state where.

A. We do not know.

Q. Were not the agents of defendant negligent in taking the box out of the car?

A. Yes.

Q. Could they not have saved the contents of the box by handling the box carefully when it was taken out of the car?

A. Yes, to the best of our knowledge and belief."

The district court, among other things, instructed the jury that "while a common carrier is generally, in the absence of any such limitation, liable absolutely, as an insurer, against all loss except that caused by the act of God and the public enemy, it may limit such liability by special conditions such as contained in this receipt, but such special contract cannot relieve the company from its own negligence. It follows that in this case the company is liable, if at all, not as an insurer, but solely for negligence in the transportation of the property. ‘Negligence’ is a negative term, implying the want or absence of ordinary care; that is, that care and caution that men of ordinary prudence usually exercise under like circumstances. Whether the defendant company was so negligent, and, if so, whether such negligence caused the injuries complained of, are questions of fact for the jury, to be determined from all the evidence. You should consider the condition of the material when delivered to them; the manner in which it was boxed; the nature of the articles, so far as they could be seen and known by the shipper; the manner in which such property is handled; the condition and circumstances in which it was found at the place of destination; and taking into consideration all the surrounding circumstances and facts proven, and using that ordinary knowledge, observation, and experience in life that men generally possess, you must say whether the loss and injury were attributable to the want of ordinary care and diligence on the part of the express company. If they were, the plaintiff may recover his actual loss; otherwise, he cannot recover beyond the sum of fifty dollars." The express company asked the court to instruct the jury as follows: "(1) The jury are instructed to return a verdict in favor of the plaintiff for the sum of fifty dollars. (2) The agreement in the receipt that defendant will not be liable for more than fifty dollars for any shipment, unless the true value of such shipment is stated in the receipt, is a valid agreement, and relieves the defendant of liability as insurer for all amounts over fifty dollars, leaving it liable in excess of fifty dollars only for gross negligence, and the burden of proving gross negligence is upon the plaintiff."

1. It is settled by the decisions of this court, and by the great weight of authority, that a common carrier cannot stipulate for exemption from responsibility for the negligence of himself or his servants, on grounds of public policy, even by express contract. Railroad Co. v. Simpson, 30 Kan 645, 2 P. 821; Railroad Co. v. Lockwood, 17 Wall. 357, and the cases therein cited; 2 Amer. & Eng. Enc. Law, 822. But this is not the question presented by the record in this case. The receipt executed by the express company, and knowingly and voluntarily accepted by the shipper through his agent, expressly provided "that the express company was not to be liable for any loss or damage to the box, for over fifty dollars, if the just and true value thereof was not stated." The true and just value of the box was not stated in the receipt or to the company by the shipper. The trial court very properly instructed the jury "that the shipper must be presumed to have assented to the terms and conditions of the receipt." Two questions are therefore presented for our determination: First . May a common carrier limit his liability to an amount stated in a written receipt or special contract, in the event of loss or injury to the goods or property through ordinary negligence, if such special contract is freely, voluntarily, and fairly...