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usual course of business, and he has also a right to define and
limit that business, and give notice accordingly. (^)

So too, he has a right to say to all the world and to each sen-
der, that he will not carry goods beyond a certain value ; or that,
if he carries such goods, he must be paid for it by a premium on
the increased risk. This is reasonable ; and it is consistent with
public policy, because it tends to give the carrier exact knowledge
of what he carries, and of what risks he runs, and thus to induce
him to take the proper care, and proportion his caution and his
means of security to the value of the goods, (r) But in the con-

(00) Lord V. Midland R. R. Co. Law lated by that act, and have never, that

Rep. 2 C. P. 339. we are aware of, been repudiated bv any

(/)) Pardington i'. S. W. R. Co. 1 court in this country or in England.

Hurl. & N. 392. The case of Nicholson y Willan, h East,

(7) Wisey. G.W. R.Co. 1 Hurl. &N. 63. 507, is generally con-sidered as the one in

(r) The notices now alluded to have which they were first sanctioned by a
often been confounded with those which judicial decision. There the defendant
exempt the carrier absolutely from his was a coach proprietor and had pub-
liability, and which, as we have seen in lished a notice, the purport of whicli was
note (n), ante, are not held valid. But it that he would not be accountable for any
IS very important that the two should be package whatever (if lost or damaged),
kept distinct. We have seen that there above the value of £5, unless insured
are but two cases in the English books and paid for at the time of delivery,
and those Nisi Prius cases, in which the The action was brought to recover for
latter have been expressly sanctioned; the loss of a parcel delivered to the de-
and that they were entirely put an end fendant to carry, containing goods to the
to by the Carriers Act. On the other value of £58. No disclosure was made
hand, the former were sanctioned by the of the true value of the parcel nor was
courts at an earlier date, were recognized any extra freight paid ; and the court
in a vast number of cases previous to the held that the defendant was protected by
Carriers Act, were established and regu- his notice. From this time until the pas-

^ The company is, however, liable for wilful or negligent delay in the conduct of
its business. See Le Blanche v. Loudon, &c. Rv. Co. 1 C. P. D. 286 ; Van Buskirk v.
Roberts, 31 N. Y. 661.

253



241



THE LAW OP CONTRACTS.



[book in.



struction of the notice, it is held that all restrictions must be



saire of the Carriers Act, effect was given
to similar notices in Harris v. Packwood,

3 Taunt. '2(U (1810); Beck v. Evans, 16
East, 244 (ISrJ); Levi v. Waterhouse, 1
Price, 280 (1815); Hodenhain v Bennett,

4 id. 31 (1817) ; Smith v. Home, 8 Taunt.
144 (1818); Birkett v. Willan, 2 B. &
Aid. 35G (1819); Batson v Donovan, 4
id. 21 (1820); Garnett v. Willan, 5 id. 53
(1821); Sleat v. Flagg, id. 342 (1822);
Duff V. Budd, 3 Br. & B. 177 (1822);
Marsh v. Home, 5 B. & C. 322 (1826);
Brooke v. Pickwick, 4 Bing. 218 (1827) ;
Riley v. Home. 5 Bing 217 (1828) ; Brad-
ley V. Waterliouse, Mood. & M. 154
(1828), and many other cases. In this
state of tilings, the Carriers Act, 2 Geo.
IV. and I Wm. IV. ch. 68, was passed.
[This statute, in effect, provided that car-
riers should not be liable for more than £10
on packages of certain enumerated valu-
ables committed to them unless the value
and nature of the property were declared,
and that no notice should exempt carriers
from common-law liability for goods car-
ried, except as to such as were mentioned in
the act, but that the act should not affect
any special contract made with the carrier.]
In this country very few cases appear to
have arisen upon notices of the kind that
we are now speaking of. Dicta may be
found, however, sustaining them in Orange
County Bank v Brown, 9 Wend. 115, and
in Bean v. Green, 3 Fairf. 422, and they
were very ably vindicated by Mr. Justice
Cowen, in Cole v. Goodwin, 19 W^end. 251.
Upon the whole, in the language of Mr.
Justice Red field, " We regard it as well
settled, that the carrier may, by general
notice, brought home to the owner of the
things delivered for carriage, limit his
responsibility for carrying certain commo-
dities beyond the line of his general busi-
ness, or he may make his responsibility
dependent upon certain conditions, as hav-
ing notice of the kind and quantity of the
things deposited for carriage, and a cer-
tain reasonable rate of premium for the
insurance, paid, beyond the mere expense
of carriage." See Farmers & Mechanics
Bank v. Champlain Trans. Co. 23 Vt. 186,
206. — It remains that we consider to what
extent a carrier may exempt himself from
his common-law liability, whether by
notice or by special contract. This ques-
tion first arose in the cases concerning
notices. Many of those cases we have
already cited in this note. They will be
found, upon examination, to exhibit a
considerable degree of uncertainty and
contrariety of opinion upon the ques-
tion. Some of them inclined to hold,
that a non-compliance by the bailor

254



with the terms of the notice was a fraud
on his part, and consequently that the
carrier was liable for nothing short of
direct malfeasance ; other cases, and the
greater number, held the carrier liable
for gross negligence ; and others still, held
him liable for ordinary negligence. No
certain rule coiild be deduced from
the cases until Wyld v. Pickford, 8 M
& W. 443. In that case the whole sub-
ject was elaborately examined and the
Court of Exchequer declared that the
carrier, notwithstanding his notice, was
bound to use ordinary care. Parke, B.,
said " Upon reviewing the cases on
this subject, the decisions and dicta will
not be found altogether uniform, and
some uncertainty still remains as to the
true ground on which cases are taken
out of the operation of these notices." In
Bodenham v. Bennett (4 Price, 34), Mr.
Baron Wood considers that these notices
were introduced for the purpose of
protecting carriers from extraordinary
events, and not meant to exempt them
from due and ordinary care. On the
other hand, in some cases it has been
said that the carrier is not, by his notice,
protected from the consequences of mis-
feasance ; Lord Ellenborough, in Beck v.
Evans (16 Ea.st, 247); and that the true
construction of the words, ' lost or dam-
aged,' in such a notice, is, that the carrier
is protected from the consequences of
negligence or misconduct in the carriage
of goods, but not if he divests himself
wholly of the charge committed to his
care, and of the character of carrier.
Bai/lei/ and Holroi/d, JJ , in Garnett y. Wil-
lan (5 B. & Aid 57, 60). In many other
cases it is said, he is still responsible for
' gross negligence ; ' but in some of them
that term has been defined in such a way
as to mean ordinary negligence (Story on
Bailm. § 11); that is, the want of snch
care as a prudent man would take of his
own propertv. Best, J., in Batson v. Don-
ovan (4 B. & Aid 30), and Dallas, C J,
in Duff V. Budd (3 Br. & B. 182). The
weight of authority seems to be in favor
of the doctrine, that in order to render a
carrier liable after such a notice, it is not
necessary to prove a total abandonment
of that character, or an act of wilful mis-
conduct, but that it is enough to prove an
act of ordinary negligence, — gross neg.
ligence, in the sense in which it has been
understood in the last-mentioned cases ;
and that the effect of a notice, in the
form stated in the plea, is, that the car-
rier will not, unless he is paid a premium,
be responsible for all events (other than
the act of God and the Queen's enemies),



CH. XI.]



BAILMENT.



241



taken most strongly against the carriers, (rr) And it is held,



I



by which loss or damage to the owner may
arise, against which events he is, by com-
mon hiw a sort of insurer ; but still he
undertakes to carry from one place to
another, and for some reward in respect of
the carriage, and is therefore bound to use
ordinary care in the custody of the goods,
and their conveyance to and delivery at
their place of destination, and in providing
proper vehicles for their carriage ; and af-
ter such a notice, it may be that the burden
of proof of damages or loss by the want
of such care woubl lie on the plaintiff."
We are not aware, however, that any of
the English cases have expressly held
that it was incompetent for a carrier to
exempt himself by notice from the conse-
quences of his own negligence, if he used
terms which could receive no other rea-
sonable construction. But however this
may be, a series of English cases since
the Carriers Act, seem to have settled the
point there that it is competent for a car-
rier hv an express contract between himself
and his bailor to exempt himself from
liability for anything short of actual tnal-
feasance. The first of these cases which it
is necessary to cite is that of Chippendale
V. The L. & Y Railway Co. 7 E. L. & E.
395, in the Queen's Bench. There the plain-
tiff, who had some cattle conveyed by a
railway company, received for them a
ticket, which he signed, containing the
terms on which the railway company car-
ried the cattle. At the foot of the ticket
there was a clause : " N. B. — This ticket
is issued subject to the owner undertaking
all risk of conveyance whatever ; as the
company will not be liable for any mjury
or damage, howsoever caused, and occur-
ring to live stock of any description trav-
elling upon the L. & Y. Railway, or in
their vehicles." The plaintiff saw the
cattle put into the truck. During the
journey some of the cattle got alarmed
and broke out of the truck, and were in-
jured. The truck was so defectively
constructed as to be unfit and unsafe for
the conveyance of cattle. Held, that
there was no implied stipulation that the
truck should be fit for the conveyance of
cattle ; and that the company were pro-
tected by the terms of the ticket from
liability to the plaintiff for the damage
to the cattle. It should be observed,
however, that Erie, J., yjlaces some stress
upon the fact that the contract was for
the carriage of iH-e stock. He says " I
think that a limitation, however wide in



its terms, being in respect of live stock,
is reasonable ; for though domestic ani-
mals might be carried safely, it might be
almost impossible to carry wild ones
without injury." See also Morville v.
The Great Northern Railway Co. 10 E.
L. & E. 366. Then followed the cases of
Austin v. The M. S. & L. Railway Co. 11
E. L. & E. 506, s. c. 10 C. B. 454; and
Carr v. The L. & Y. Railway Co. 14 E.
L. & E. 340 , s. c. 7 Exch. 707, both de-
cided the same day. In the former case
a railway company, letting trucks for
hire, for the conveyance of horses, de-
livered to the owner of the horses a ticket,
in which it was stated that the owners
were to undertake all risks of injury by
conveyance or other contingencies ; and
further stipulated, that the company
would not be liable for any damages,
however caused, to horses or cattle. The
horses received damage through the
breaking of an axle, which was attrib-
utable to the culpable negligence of the
company's servants. A verdict having
been found for the plaintiff, a rule Nisi
was oljtained for arresting the judgment.
After taking time to consider, the rule
was made absolute. In Carr v. The L. &
Y. Railway Co., the plaintiff, being the
owner of a horse, delivered it to the de-
fendants, a railway company, to be carried
on the railway, subject to couditions
which stated that the owners undertook
all risks of conveyance whatsoever, as the
company would not be responsible for
any injury or damage, however caused,
accruing to live stock of any description
travelling on the railway. The horse hav-
mg been injured by the horse-box being
propelled against some trucks through
the gross negligence of the company ;
Held, Piatt, B., hesitating, that the
company, under the terms of the con-
tract, were not responsible for the in-
jury. But qncere, per Alderson, B.,
whether the company would have been
responsible if the horse had been stolen.
See also, as to reasonable notice. White
V G. W. R. Co. 2 C. B. (N. s.) 7 ;
Pianciani v. L. & S. W. R. Co. 18 C. B.
226 ; and as to such notice, and the
liability of carriers for animals, McMa-
nus v. L. & Y. R. R. Co. 2 Hurl. & N. 693.
In this country, however, it would seem
to be pretty nearly, if not quite settled,
that it is incompetent for a carrier, either
by notice or express contract, to exempt
himself from liability for his own uegli-



(rr) Hooper v. Wells, 27 Cal.
Westcott, 6 Blatch. 64.



11; Earle y. Cadmus, 3 Daly, 237; Hopkins v.

255



I



* 241 THE LAW OF CONTRACTS. [bOOK HI.

that, although the plaintiff took a receipt containing such notice,



gence. See post p. * 250 and notes.
The strongest case that we have seen
is the case of Sager v. The Ports-
mouth R. K. Co. 31 Me. 228. There
the defendants had tran.sported the plain-
tiff's horse from Boston to Portland.
It was upon a cold day in November.
The horse was carried in an open car,
and suffered serious injury from the ex-
posure to the cold This action was
brought to recover damages for that in-
jury. The defendants introduced a paper
signed by the plaintiff, whereby he
agreed to exonerate the company from
all damage that might happen to any
horses, oxen, or other live stock, that he
should send over the company's road ;
meaning thereby, that he took the risk
upon himself of all and any damage that
might happen to his horses, cattle, &c.;
and that he would not call upon said
company or any of their agents for any
damage whatever. At the trial, the
learned judge instructed the jury that
this contract would not exempt the com-
pany from liability for their own mal-
feasance, misfeasance, or negligence.
And this instruction was held correct.
Shepley, C. J., after speaking of the con-
struction put upon notices by the English
courts, said : " The notices were usually
given in terms so general, that a literal
construction of the contract thus arising
out of them, would have exonerated the
carriers from liability for their own mis-
feasance or negligence, and for that of
their servants. Yet the well-established
construction of them has been, that they
were not thereby relieved from their lia-
bility to make compensation for losses
thus occasioned." The learned judge
then proceeded to an examination of the
authorities; and having stated that the
court had formerly declared that the
power of carriers to limit the liability
imposed upon them by law should not be
favored or extended, he continued : " If
a literal construction of the agreement
signed by the plaintiff would exonerate
the defendants from losses occasioned by
the negligence of their servants, it will
be perceived that it could not be per-
mitted to have that effect without a vio-
lation of established rules of construction,
and without a disregard of the declared
intention of this court not to extend the
restriction of the liability of common
carriers. The very great danger to be
anticipated, by permitting them to enter
into contracts to be exempt from losses
occasioned by misconduct or negligence,
can scarcely be overestimated. It would

256



remove the principal safeguard for the
preservation of life and property in such
conveyances. It, however, requires no
forced contruction of that agreement,
to regard it as effectual to place the de-
fendants in the position of bailees for
hire, and as not exonerating them from
liability for losses occasioned by misfeas-
ance or negligence. The latter clause,
' we will not call upon the railroad com-
pany or any of their agents for any dam-
ages whatsoever,' considered without
reference to the preceding language,
would be sufficiently broad to excuse
them from making compensation for
losses occasioned by wilful misconduct.
It is most obvious that such could not
have been the intention ; and that the
true meaning and intention was, that
they would not call upon them for any
damage whatsoever ' that may happen
to any horses, oxen, or any other live
stock, that we send or may send over
said company's railroad.' The intention
of the parties, by the use of the language
contained in this last clause, is then at-
tempted to be explained as follows : —
meaning by this, that we will take the
risk upon ourselves of all and any dam-
ages that may happen to our horses,
cattle, &c. The meaning of damage hap-
pening to live animals is to be sought.
The word ' happen' is defined by the
words, to come by chance, to fall out, to
befall, to come unexpectedly. An acci-
dent, or that which happens or comes by
chance, is an event which occurs from
an unknown cause, or it is the unusual
effect of a known cause. This will ex-
clude an event produced by misconduct
or negligence, for one so produced is
ordinarily to be expected from a known
cause. Misconduct or negligence under
such circumstances would usually be
productive of such an event. Lord Ellen-
borough, in the case of Lyon v. Mells (5
East, 428), speaking of what ' may or
may not happen,' explains it as ' that
which may arise from accident, and
depends on chance.' An injury occa-
sioned by negligence, is the effect ordi-
narily to be expected as the consequence
of that negligence, without reference to
any accident or chance. A correct con-
struction of the agreement will not
therefore relieve the defendants from
their liability for losses occasioned by
the misfeasance or negligence of their
servants." So in Reno v Hogan, 12 B.
Mon. 63, the carriers received a box of
glass, with a clause in the bill of lading,
that they should not be " accountable for



CH. XI.] BAILMENT. * 248

he may show that he never assented or accepted the paper as a
contract, (rs) ^

* It would follow then, that where the carrier inter- * 242
poses such general notice, as " all baggage at risk of
owners, " the sender * may disregard it, and the baggage * 243
will be at the risk of the carrier ; or he may expressly
refuse to be bound by it, and insist * that his bag- *244
gage shall be carried under the responsibility which
the law creates ; and if the carrier refuses to take the
goods, he * will render himself liable to an action. But * 245
if the notice be only a limited and qualified notice, and
in itself reasonable, the* sender, having knowledge of it, *246
is bound by it. Nor can he insist that the carrier shall
receive and transport his goods without reference to it.

*In a recent decision in New York, a rule of law of *247
much importance is asserted ; it is that a railroad company
is bound to * introduce improvements which are ascer- * 248
tained to be practicable and conducive to safety ; and are

breakage." On its arrival at the place 526. See also the notes of the learned
of destination, the glass was found American editors to Austin v. The M. S.
broken into small fragments, which was & L. Railway Co. 1 1 E. L. & E. 506, s. c.
proved to have been caused by the gross 10 C. B. 454 ; and Carr i'. The L. & Y.
negligence of the defendant or his ser- Railway Co. 14 id. .340, 7 Exch. 707. See
vauts. The court, while admitting the also Shaw v. York & North Midland Rail-
validity of the special contract, held, way Co. 1.3 Q. B. 353 ; MorviUe v. Great
that its provisions did not apply to Northern Railway Co. 10 E. L. & E. 366.
injuries arising from gross negligence. —In England it has been held, after much
Opinions and dicta to the same effect will consideration, that notices published in
be found in Dorr v. N. J. Steam Navi- pursuance of the Carriers Act, if not
gation Co. 4 Sandf. 136 ; Stoddard v. complied with, exempt the carrier from
Long Island Railroad Co. 5 Sandf. 180; liability for gross negligence. Hinton (,•.
Laing v. Colder, 8 Pa. 479 ; N. J . Dibbin, 2 Q." B. 646. See also Owen v.
Steam Navigation Co. v. Merchants Burnett, 2 Cr. & M. 353.
Bank, 6 How. 344 ; Slocura v. Fairchild, (rs) Boorman v. Amer. Express Co.
7 Hill (N. Y.), 292; Swindler v. Hilliard, 21 Wis. 152; Strohn v. Detroit R. R.
2 Rich. L. 286; Parsons v. Monteath, 13 Co. 21 Wis. 554. See also Southern Exp.
Barb. 353 ; Camden & Amboy Railroad Co. v. Newbv, 36 Ga. 635 ; McMillan v.
Co. V. Baldauf, 16 Pa. 67; Pennsvlv. Michigan Southern R. R. Co. 16 Mich. 79.
R. R. Co. V. McCloskey's Admr. 23 Pa.

1 A receipt for goods shipped, or bill of lading constitutes an express contract
with the shipper, and if the latter receives it without dissent, he is bound by its
provisions, in the absence of fraud or deceit though he has not read tliem. Jones v.
Cincinnati, &c. R. R. Co. 89 Ala. 376; Black v. Wabash, &c. Ry. Co. Ill 111. 351;
Louisville, &c. R. R. Co. v. Brownlee, 14 Bush, 590 ; Hoadley v Northern Trans. Co.,
115 Ma.ss. 304; Germania Fire Ins. Co. v. Memphis, &e. R. R. Co. 72 N. Y. 90;
Hadd V. United States Express Co. 52 Vt. 335 ; Morrison v. Phillips & Colbv Construc-
tion Co. 44 Wis. 405. But see Erie, &c. Trans. Co. v. Dater, 91 111. 195!^ See also
Gaines v. Union Trans. &c. Co. 28 Ohio St. 418; Jennings v. Grand Trunk Rv. Co.
127 N. Y. 438.

The purchase of a ticket by a passenger does not make qualifications of the carrier's
liability printed on the ticket binding upon him unless he with knowledge of them
assents thereto. Kansas City, &c. R. R. Co. v. Rodebaugh, 38 Kan. 45.

VOL. II. 17 257



* 249 THE LAW OF CONTRACTS. [BOOK HI.

therefore liable for an injury caused by neglect in not intro-
ducing them, (s)

From what we have already said, and from the authorities we
have cited, it may be inferred, that the right of a common carrier
to limit his responsibility by a special contract cannot be con-
sidered as settled, or clearly defined. The common law makes a
common carrier responsible for all damage, excepting only that
which is caused by an act of God, or by a public enemy. If this
responsibility rests only on usage, it disappears, of course, when
the parties make an express contract, covering the same ground ;
because usage binds parties only on the supposition that it entered
into their intention and their contract. If this responsibility is
matter of positive law, — whatever be its origin, — then, of
course, it cannot be evaded or modified at the pleasure of the
parties. And if either of these grounds were taken, no ques-

* 249 tion would remain. But neither of them is taken, * Por

a time, some courts were disposed, as we have seen, to
hold the responsibility of a common carrier to be determined by
law, and to be beyond the reach of contract. But it is not so
now. It is held, that his responsibility rests upon, and is pre-
served by, " public policy ;" and then the difficult questions come.
What is this policy, what is its obligation, and to what extent
does it admit of modification by the contract of the parties ?

We apprehend that the difficulty of the question, as to the obli-
gation of the common carrier, after notice and contract, arises
from the extreme uncertainty of the principle thus brought to
its determination. Anything more indistinct, undefined, and
incapable of certainty or uniformity, than the requirement of
" public policy, " can hardly be imagined. Of late years this
principle is invoked with increasing frequency ; and, sometimes
at least, seems to be made use of as authority for deciding in
whatever way the court thinks would, on the whole, be most use-
ful. It need not be said, that such use of such a principle must
diminish greatly the certainty and uniformity of law.

The cases in which public policy conflicts with the contract of
the common carrier, may be reduced to three classes.

In one, the carrier exempts himself from liability for all
injuries which can in no way be attributed to his own negligence
or wrong-doing.

In another, this exemption covers all liabilities whatever, in-
cluding not only the negligence, but the wilful tort or default of
the carrier or his servants.

(s) Smith V. New York & Harl. R. R, Co. 19 N. Y. 127.

258



I



CH. XI.] BAILMENT. * 250

In the third, the contract exempts the carrier from liability for
any damage not actually caused by his own negligence, but leaves
him liable for that.

We think the decisions and the reasons for them would now
permit the carrier to exempt himself by contract, or by notice



Online LibraryTheophilus ParsonsThe law of contracts (Volume 2) → online text (page 42 of 143)