Pacific Express Co. v. Wallace

Bunn, C. J. (after stating the facts.). It is readily to be seen that the sole contention in this case is, whether defendant was liable as a common carrier or as a warehouseman; and, in order to solve this question, the inquiry is, first, as to whether or not there was a special contract of shipment between plaintiff and defendant, and, if so, was that contract a lawful one, or one such as the plaintiff voluntarily made with defendant, or was it a contract imposed upon plaintiff by defendant, in effect compelling plaintiff to ship on the terms of the same, not giving him the choice of shipping on the terms upon which the law compels common carriers to carry goods. A common carrier may make special contracts of carriage with customers, and thus relieve himself of many of the responsibilities imposed by the law, but he cannot contract against the consequences of his negligence; and it is held, in the case of Railway Company v. Cravens, 57 Ark. 112, that he cannot limit his liability in any respect by such special contract, where the shipper is not afforded an opportunity to contract for the services required of the carrier by law without restrictions. Upon the doctrine of this case, appellee seems to rely to sustain his contention; that is to say, notwithstanding he shipped on the terms and stipulations endorsed on the envelopes (one of which was to render the liability of appellant, while the goods were awaiting to be called for and paid for, that of a warehouseman only), yet that such special contract was invalid as giving him no choice as to terms of shipment. He does not say as much, but such is necessarily to be inferred. We cannot see that the case of Railway Company v. Cravens, supra, is applicable to the facts in this case. There is nothing here to indicate that appellee did not act of his own free will in the matter ; there is nothing to show that appellant sought to evade the responsibility which the law imposes upon it, by driving a hard bargain with the appellee. It follows, therefore, that, at the time the goods were destroyed, they were in the possession of appellant as a warehouseman, and that his liability for the same was that of a warehouseman only, as stipulated in the implied contract of shipment between it and the appellee. Now, since appellant was only liable for a want of ordinary care in respect to its possession and preservation of the goods, and since there is neither proof nor charge of negligence in any degree against it, the findings of the court were incorrect, and consequently its declarations of law and judgment were erroneous. The judgment is therefore reversed, and judgment will be entered here for the appellant.