The Erie v. Dater

• Decision Date: 30 September 1878
• Citation: 1878 WL 10254,91 Ill. 195,33 Am.Rep. 51
• Parties: THE ERIE AND WESTERN TRANSPORTATION COMPANYv.PHILIP W. DATER et al.
• Court: Illinois Supreme Court

91 Ill. 195

1878 WL 10254 (Ill.)

33 Am.Rep. 51

THE ERIE AND WESTERN TRANSPORTATION COMPANY

v.PHILIP W. DATER et al.

Supreme Court of Illinois.

September Term, 1878.

APPEAL from the Circuit Court of Cook county; the Hon. W. K. MCALLISTER, Judge, presiding.

Mr. GEO. GARDNER, and Mr. GEO. B. HIBBARD, for the appellant.

Mr. MELVILLE W. FULLER, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

On October 7, 1871, appellees delivered to appellant, at Chicago, two hundred barrels of flour for transportation to New York City, and received for the same a bill of lading. The flour was put into the warehouse in Chicago to await the loading of the vessel for which it was intended, and on the night of October 8 and 9, 1871, was destroyed by the great Chicago fire, without any negligence on the part of any one. This action on the case was brought by appellees against appellant, as a common carrier, for failing to carry and deliver the flour to the consignee. The general issue was pleaded, and the cause tried by the court without a jury, resulting in a finding for plaintiffs for the value of the flour and interest, and judgment, from which defendant appeals.

This same case was before this court at a former term, and is reported in 68 Ill. 369, when the judgment in favor of the plaintiffs below was reversed, on the ground of being against too many defendants, the opinion of this court on the merits being in favor of such plaintiffs.

The bill of lading delivered to the consignors contained a provision relieving the carrier from liability for loss by fire while the property is in transit, or while in depots, etc. This court has repeatedly held, that there must be the assent of the shipper in order to make binding upon him such a limitation of the carrier's common law liability, and that with such assent it is binding. As the bill of lading was the only evidence of the delivery of the flour to appellant, or of any contract for the transportation of the same, and as there was evidence that appellees had, before, accepted quite a number of bills of lading of a similar character in the course of their business with appellant, two points are made by appellant for the reversal of the judgment: 1st. That from the fact, alone, of the acceptance of the bill of lading, the assent of the shipper to its terms and conditions should be inferred. 2d. That appellees should be held to have assented to the contract expressed in the bill of lading from their receipt of the many similar bills of lading, running through the years 1870 and 1871, from the appellant without objection, or be estopped from setting up their ignorance of the contents of the instrument and consequent want of assent to its provisions, by such course of dealing with appellant.

It is insisted that the bill of lading, being the only contract between the parties, and relied upon by the appellees as such, must be taken as a whole, and all its provisions must be regarded as binding upon both parties. This same point was made and urged when the case was here before, it being then said: “This bill of lading, appellants insist, was the contract of the parties, by which they are bound, and the provisions of which are plainly and easily understood by any business man, and the assent of the shipper to the terms contained in it should be presumed.” And it was held that the assent of the shipper to its conditions was not to be inferred from the fact of acceptance alone. The same fact, too, appeared before, of the previous acceptance by these shippers of a large number of similar bills of lading in the course of their business with appellant; yet with these same facts there appearing, it was held that the finding of the court trying the case, in favor of the plaintiffs below, should not be disturbed by this court. We do not see that the case, as to the facts, is now presented any more favorably for appellant than before--the facts appear to be substantially the same. But we are asked by appellant's counsel to reconsider the subject of the qualification of the liability of carriers as contained in bills of lading, especially bills...