Schaller v. Chi. & N. W. Ry. Co.

• Citation: 71 N.W. 1042,97 Wis. 31
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 24 June 1897
• Parties: SCHALLER v. CHICAGO & N. W. RY. CO.

97 Wis. 31

71 N.W. 1042

SCHALLER

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

June 24, 1897.

Appeal from circuit court, Green county; John R. Bennett, Judge.

Action by Edward Schaller against the Chicago & Northwestern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Plaintiff delivered to the defendant at Verona, Wis., 22 boxes of cheese for shipment over its line of railway to plaintiff at Chicago, Ill. At the time of such delivery, defendant, by its agent, signed and delivered to plaintiff a bill of lading to the effect, among other things, that the property was received for shipment subject to loss by fire, unless it could be shown, in case of such loss, that it occurred through the negligence or default of the agent of the company. The property was seasonably transported according to the contract contained in the bill of lading, was unloaded, and placed in defendant's warehouse in Chicago, to await the payment of freight by plaintiff, and a few hours afterwards the warehouse burned, with its contents. On the following day plaintiff demanded the property of defendant, but delivery thereof was refused because of the destruction by fire, as aforesaid. This action was brought to recover the value of such property. Issue was joined by complaint and answer, and the result of the trial was that the court found facts as heretofore stated, and, further, that the fire was not caused by any negligence on the part of the defendant; that the bill of lading referred to contained the contract of carriage between the parties; that plaintiff did not read it because of his own negligence; and that defendant was entitled to judgment. Judgment was thereupon rendered, from which this appeal was taken.J. M. Becker, for appellant.

Fish & Cary, for respondent.

MARSHALL, J. (after stating the facts).

Several errors are assigned on this appeal, all of which have received careful consideration, and will be noticed in this opinion in their order.

1. That the circuit court erred in allowing defendant to amend its answer on the trial by setting up as a defense that by the law of Illinois the extraordinary liability of a common carrier of goods terminated when the goods arrived at their destination, and were deposited in the defendant's warehouse; and as a further defense that the goods were received for shipment under an express contract to the effect that the defendant should not be liable for any loss occasioned by fire. Trial courts have large discretionary power to allow amendments to pleadings on the trial, and if, in the exercise of such power, a defendant is allowed to bring in additional defenses, the ruling in that regard cannot be disturbed, except for a clear abuse of discretion; and unless, from the nature of such additional defenses, it manifestly appears that the plaintiff must have been prejudiced, it must be made to appear affirmatively, in order to present the question for consideration on appeal. If the plaintiff in this case was not prepared to proceed with the trial because of the amendment, he should have made that fact appear to the trial court by affidavit; and, if the amendment was then allowed, except upon such terms as to protect him, it would be error. For aught that appears, the plaintiff did not need additional time to prepare for trial because of the amendment, and was not made any additional costs by reason of the delay in bringing forward the additional defenses. His complaint was not that he was prejudiced by reason of the delay or additional costs, but by reason of the probability that such defenses might be effectual, on the facts, to defeat his alleged cause of action. The latter kind of prejudice is not recognized by the courts as entitled to consideration in the proper administration of justice.

2. That the court erred in admitting in evidence the bill of lading. The parties stipulated, for the purposes of the trial, that the property was delivered to defendant at Verona, Wis., for shipment to Chicago; that it arrived there; that it was unloaded, and placed in defendant's warehouse, and was, on the night thereafter, destroyed by fire, with such warehouse. To prove that the contract of shipment exempted defendant from loss by fire, the bill of lading was offered in evidence. The evidence was objected to because of the stipulation of facts. The objection was overruled, and that is assigned as error. Manifestly, a stipulation of facts made for the purposes of a trial, unless clearly intended to cover the whole case, does not preclude either party from giving evidence tending to establish other facts pertinent to the issues, not inconsistent with the facts agreed upon by the stipulation. It was upon that ground, obviously, that the objection to the admission of the bill of lading was overruled by the trial court. That such ruling was right does not admit of serious discussion.

3. That the bill of lading was void for want of a consideration. This assignment of error is grounded on the familiar doctrine that any contract limiting the common-law liability of a common carrier, to be valid, must be supported by a consideration. It is not seriously contended but that a valid contract may be made limiting the common-law liability of a common carrier. Though that was questioned in this court at an early day (The Steamboat Sultana v. Chapman, 5 Wis. 454;Falvey v. Transportation Co., 15 Wis. 129), later the validity of such contracts has been repeatedly recognized. See Candee v. Railway Co., 21 Wis. 582;Detroit & M. R. Co. v. Farmers' & Millers' Bank, 20 Wis. 122;Wahl v. Holt, 26 Wis. 703;Boorman v. Express Co., 21 Wis. 152; Strohn v. Railway Co., Id. 554; Tolman v. Abbot, 78 Wis. 192, 47 N. W. 264;Loeser v. Railway Co. (Wis.) 69 N. W. 372,--which are in accord with nearly all reputable authority on the subject, and include stipulations exempting a carrier from loss by fire (Ray, Neg. Imp. Duties, Freight Carr., § 45; Railroad Co. v. Brownlee, 14 Bush, 590; Railway Co. v. Gilbert, 88 Tenn. 430, 12 S. W. 1018; Johnson v. Portuense, 35 Fed. 670;Bank of Kentucky v. Adams Exp. Co., 93 U. S. 174); but not exemptions from the consequences of negligence. Such exemptions are uniformly held contrary to public policy and void. Black v. Transportation Co., 55 Wis. 319, 13 N. W. 244;Abrams v. Railway Co., 87 Wis. 485, 58 N. W. 780; Loeser v. Railroad Co., supra. What immediately precedes is not strictly necessary to a discussion of this assignment of error, but is deemed proper, inasmuch as appellant's argument proceeds upon the theory that the law at the foundation of the subject is doubtful. On the particular question raised, the great weight of authority is in favor of the proposition that, to support a contract limiting the liability of a common carrier, a consideration is necessary, and that, if the charges and services rendered, as a rule, are the same in all respects without as with the special contract, such contract is void for want of a consideration. York Co. v. Central Railroad, 3 Wall. 107; Railroad Co. v. Oden, 80 Ala. 38; Nelson v. Railroad Co., 48 N. Y. 498. But the presumption is that the rates for the carriage of goods are made having regard to the risks assumed, and that the rate specified in a special contract, when made, was intended to support the entire contract. Hence, whether there was, in fact, no consideration given for the special stipulation must be affirmatively established by the party seeking to avoid the limitation of liability, and it must be established by some clear and satisfactory testimony, else the presumption of a consideration will prevail. In York Co. v. Central Railroad, supra, Mr. Justice Field, speaking for the court in respect to this subject, said, in effect: “There is no very good reason why parties should not be permitted to contract for a limited responsibility in matters which concern themselves as to rights to property only. The shipper may rely on the responsibility which the common law imposes, if he sees fit, or he may limit and qualify such liability by contract; in which case, if the stipulation does not cover losses attributable to negligence or misconduct, there is no reason why the court should not give full effect to, and enforce, the contract. Where such contract is challenged for want of a consideration to support the special stipulation exempting the carrier from common-law liability, such challenge will be of no avail, without affirmative evidence to support it.” True, plaintiff testified that the defendant's rate on cheese from Verona to Chicago was 25 cents per 100 pounds, and that it charged the same in cases where a receipt was not given; but that, standing alone, comes far short of satisfactorily impeaching the presumption of a consideration arising from the making and acceptance of the contract. If the rates for the carriage of freight were fixed by a general rule of the company, with reference to exemption from some common-law liabilities, the fact that in some or many cases receipts containing such exemption were not given is not material.

The next assignment of error is that the findings of fact are contrary to the law and the evidence. Several reasons are given to support this contention, one of which is that, conceding that the bill of lading was a valid contract, the happening of the fire raised a presumption of negligence, and the burden of proof was on the defendant to meet and rebut such presumption, and, by affirmative evidence, show that it was free from actionable fault. Numerous authorities to support this contention are cited by the learned counsel for the appellant, and the point is pressed with considerable confidence upon our attention. The books are full of cases touching this subject, and they are in irreconcilable conflict. Therefore, to discuss even the more important adjudications upon both sides of the controversy would take up much space in this opinion, without any...