Blossom v. . Dodd

*267 Church, Ch. J. The common-law liability of common carriers cannot be limited by a notice, even though such notice be brought to the knowledge of the persons whose property they carry. (Dorr v. N. J. Steam Navigation Co., 1 Kern., 485.) But such liability may be limited by express contract. (Id.; Bissell v. N. Y. Central R. R. Co., 442; French v. Buffalo, N. Y. and Erie R. R. Co., 4 Keyes, 108.) The principal question in this case is, whether there was a contract made between the parties limiting the liability of the defendants to a loss of $100 for the valise and its contents, which the plaintiff intrusted to their care. A fac simile of the card upon which the alleged contract was printed has been furnished in the papers. It does not appear, on examination, like a contract, and would not, from its general appearance, be taken for anything more than a token or check denoting the numbers of the checks received, to be used for identification upon the delivery of the baggage. The larger portion of the printed matter is an advertisement, in large type. The alleged contract is printed in very small type, and is illegible in the night by the ordinary lights in a railroad car, and is not at all attractive, while other parts of the paper are quite so. Considerable stress is laid upon the fact that the words, “ Bead this receipt,” were printed on the card in legible type. The receipt reads: “ Beceived of M- articles or checks numbered as below: 368—319.” “ For Dodd’s Express.” The blank is not filled, nor is the receipt signed by any one. The invitation is not to read the contract, but the receipt. In order to read it, the paper must be turned sideways; and no one, thus reading the receipt, would suspect that it had any connection with the alleged contract, which is printed in different and very small type across the bottom of the paper. It is no part of the receipt, is not connected with it, and is not referred to in any other part of the paper. The defendants are dealing with all classes of community; and public policy, as well as established principles, demand that the utmost fairness should be observed. *268 This paper is subject to the criticism made by Lord Ellenboeough, in Butler v. Heane (2 Camp., 415), in which he said, that “ it called attention to everything that was attractive, and concealed what was calculated to repel customersand added: “ If a common carrier is to be allowed to limit his liability, he must take care that any one who deals with him is fully informed of the limits to which he confines it.” ETor did the nature of the business necessarily convey the idea of a contract to the traveler in such a manner as to raise the presumption that he knew it was a contract, expressive of the terms upon which the property was carried, or limiting the liability of the carrier. Baggage is usually identified by means of checks or tokens. And such a card does not necessarily import anything else. At all events, to have the effect claimed, the limitation should be as conspicuous and legible as other portions of the paper. In Brown v. E. R. R. Co. (11 Cush., 97), where the limitation was printed upon the back of a passenger ticket, the court say: “ The party receiving it might well suppose that it was a mere check, signifying that the party had paid his passage to the place indicated on the ticket.” In the cases of Prentice v. Decker (49 Barb., 21), and Limburger v. Westcott (id., 283), limitations were claimed upon the delivery of similar cards of another express company, and the court held, in both cases, that such delivery did not charge the persons receiving them with knowledge that they contained contracts. A different construction was put upon the delivery of a similar card, in Hopkins v. Westcott (6 Blatchf. R., 64); but I infer that the learned judge who delivered the opinion intended to decide that something short of an express contract will suffice to screen the carrier from his common-law liability, and that a notice, personally served, which could be read, would have that effect. The attention of the court does not seem to have been directed to the distinction between such a notice and a contract, i The delivery and acceptance of a paper containing the contract may be binding, though not read, provided the business is of such a- nature and the delivery is under such circumstances as to raise the presumption *269 that the person receiving it knows that it is a contract, containing the terms and conditions upon which the property is received to be carried. In snch a case it is presumed that the person assents to the terms, whatever they may be. This is the utmost extent to which the rule can be carried, without abandoning the principle that a contract is indispensable.» The recent case of Grace v. Adams (100 Mass., 560), relied upon by the defendant’s counsel, was decided upon this principle. The plaintiff delivered a package of money to an express company, and took a receipt containing a provision exempting the company from liability for loss by fire; and the court held that he knew that the paper contained the conditions upon which the money was to be carried, and was, therefore, presumed to have assented to them, although he did not read the paper. The court say: “ It is not claimed that he did not know, when he took it, that it was a shipping contract, or bill of lading.” So, in Van Goll v. The S. E. R. Co. (104 Eng. Com. Law R., 75), the same principle was decided. Willes, J., said: “ Assuming that the plaintiff did not read the terms of the .condition, it is evident she knew they were there.” Keatimg, J., said: “ It was incumbent on the company to show that such was the contract.” * “ I think there was evidence that the plaintiff assented to those terms.” As to bills of lading and other commercial instruments of like character, it has been held that persons receiving them are presumed to know, from their uniform character and the nature of the business, that they contain the terms upon which the property is to be carried. / But checks for baggage are not of that character, nor is such a card as was delivered in this instance. It was, at least, equivocal in its character. In such a case a person is not presumed to know its contents, or to assent to them. The circumstances under which the paper was received repel the idea of a contract. Bo such intimation was made to the plaintiff. He did not, and could not, if he had tried, read it in his seat. It is found that he might have read it at *270 the end of the car, or by the lights on the pier or in the ferryboat ; and it is claimed that he should have done so, and, if dissatisfied, should have expressed his dissent. If he had done so, and, in the bustle and confusion incident to such occasions, could have found the messenger and demanded his baggage, the latter might have claimed, upon the theory of this defence, that the contract was completed at the delivery of the paper, and that he had a right to perform it and receive the compensation. It is impossible to maintain this defence without violating established legal principles in relation to contracts. It was suggested on the argument, that the stipulation to charge according to the value of the property is just and proper. This may be true; but the traveler should have something to say about it. The contract cannot be made by one party. If the traveler is informed of the charges graduated by value, he can have a voice in the bargain; but, in this case, he had none. Whilst the carrier should be protected in his legal right to limit his responsibility, the public should also be protected against imposition and fraud. The carrier must deal with the public upon terms of equality; and, if he desires to limit his liability, he must secure the assent of those with whom he transacts business. My conclusion is, that no contract was proved. 1. Because it was obscurely printed. 2. Because the nature of the transaction was not such as necessarily charged- the plaintiff with knowledge that the paper contained the contract. 3. Because the circumstances attending the delivery of the card repel the idea that the plaintiff had such knowledge, or assented in fact to the terms of the alleged contract. The order granting a new trial must be affirmed, and judgment absolute ordered for the plaintiff, with costs. All the judges concurring, upon the ground that no contract limiting the liability of defendants was proved. Order affirmed, and judgment absolute for the plaintiff ordered.