Roos v. Philadelphia, Wilmington & Baltimore Railroad Co.

Decision Date27 May 1901
Docket Number259
Citation49 A. 344,199 Pa. 378
PartiesRoos, Appellant, v. Philadelphia, Wilmington & Baltimore Railroad Company
CourtPennsylvania Supreme Court

Argued January 22, 1901

Appeal, No. 259, Jan. T., 1901, by plaintiff, from judgment of Superior Court Oct. T., 1900, No. 85, affirming judgment of C.P. No. 4, Phila. Co., March T., 1894, No. 1096, in case of Helen V. Roos v. Philadelphia, Wilmington & Baltimore Railroad Company. Affirmed.

Appeal from Superior Court. See 13 Pa.Super. 563.

The opinion of the Superior Court by ORLADY, J., was as follows:

The plaintiff delivered certain household goods to the Northern Central Railroad Company at Baltimore, Maryland, for transportation to Greenville, New Hampshire. The Northern Central Railroad Company received the freight charges and delivered the goods to the defendant company, a connecting carrier, but while in transit to their destination on the latter road they were damaged by the derailing of the car in which they were being transported. At the time the goods were received by the Northern Central Railroad Company, it delivered to the consignor a nonnegotiable shipping receipt which provided that it would "transport the herein named merchandise with all due care and dispatch to its destination or to the terminus of its line in the direction of destination, and tender it to the consignee or connecting carrier, . . . and in case of damage through the negligence of the carrier's servants shall pay a part assessment of same, the carrier to have the full benefit of any insurance that may have been effected upon or on account of said goods."

The Insurance Company of North America insured the plaintiff in the sum of $2,000 against damage to the goods while in transit. After the delivery of the damaged goods to the plaintiff and before an adjustment was made of the claim for damages against the defendant company, she negotiated with the insurance company and received of it $809.52, for which she receipted in the following form:

"PHILADELPHIA Oct. 4, 1893.

"Borrowed and received from the president and directors of the Insurance Company of North America of Philadelphia Pennsylvania, the sum of eight hundred and nine and 52-100 ($809.52) dollars, being a loan pending the investigation and determination whether the loss on sundry articles of household furniture (per schedule on file in the office of this company) damaged and destroyed by derailment of cars at Red Mill crossing, near Elkton, Maryland, on the Philadelphia & Baltimore Railroad, shipped from Baltimore on or about July 15, 1893, bound for Greenville, New Hampshire, is a loss for which the carrier should be held liable, and if the carrier should be held liable, the undersigned agrees to return to the said president and directors the amount thus loaned, when and to the same extent same shall be recovered from the carrier."

The railroad company contended that the claim for damages was much more than it should rightly be, and that the company was entitled, as a credit on the claim when properly adjusted to the amount which the plaintiff had received from the insurance company. It urged that that money ($809.52) was paid by the insurance company, not as a bona fide loan as it purported to be, but as an adjustment and payment of an ascertained loss under its policy. The jury returned a verdict for the plaintiff in the sum or $883.81, and she brings this appeal.

It is settled that in Pennsylvania a common carrier may limit its liability by the terms of a special contract, but it is equally well settled, as an exception resting on grounds of public policy, that by such a limitation a common carrier may not be relieved from liability for its own negligence Penna. R.R. Co. v. Raiordon, 119 Pa. 577; Allam v. Penna. R.R. Co., 183 Pa. 174.

It was a voluntary act on the part of the plaintiff to secure insurance in any amount on the goods, and the damage being shown to be of a nature to make the insurance company liable to her, after payment to her of such damages the insurance benefit clause in the shipping receipt became operative in favor of the railroad company.

The policy of insurance is not printed, and we assume that it was intended to cover loss or damage to the goods while in the hands of the carrier. In this transaction the money paid was called a loan; and whether it was a loan or an adjustment of the loss is the vital question at issue.

Under the contract the carrier was to have the benefit of any insurance effected on the property, and the plaintiff could not claim from the carrier and the insurance company a greater amount than the damage she really suffered. The learned trial judge instructed the jury, viz: "That was a lawful contract; the railroad...

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