Grice v. Oregon-Wash. R. & N. Co.

Me. Justice Buenett delivered the opinion of the court. 1. It is insisted by the plaintiffs that, according to the bill of exceptions, no exception appears to have been taken to the decision of the Circuit Court, and hence nothing is here presented for our consideration. It is said in Section 172, L. O. L.: “No exception need be taken or allowed to any decision upon a matter of law, when the same is entered in the journal, or made wholly.upon matters in writing and on file in the court. ” , ■ The parties agreed upon the facts involved in this litigation. To all intents and purposes their agreement constituted a verdict or declaration of the truth concerning the matters in controversy. It was filed in the court as part of its record, and was binding upon their tribunal, as well as upon its makers; consequently, in the language of the statute referred to, no exception was necessary. The whole question is whether the circuit court reached the proper conclusion from the facts and pleadings submitted to it by the parties. 2-4. On inspecting “A” attached to the bill of exceptions, almost the first language that meets the eye is this: “This memorandum is an acknowledgment that a bill of lading has been issued, and is not the original bill of lading, nor a copy or duplicate, covering the property named herein, and is intended solely for filing or record.” — 25 — "We may well doubt if this is a sufficient bill to present the question raised. Omitting-, however, the quoted memorandum, the document contains this matter: “Oregon-Washington Railroad & Navigation Company. “Received, subject to the classifications and tariffs in effect on the date of the receipt by the carrier of the property described in the original bill of lading, at Spokane, 1/21/1913, from Pacific Trans. Co., the property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown), marked, consigned and destined as indicated below, which said company agrees to carry to its usual place of delivery at said destination, if on its road, otherwise to deliver to another carrier on the ronte to said destination. It is mutually agreed, as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained (including- conditions on back hereof) and which are agreed to by the shipper and accepted for himself and his assigns. The surrender of the original order bill of lading properly indorsed shall be required before the delivery of the property. Inspection of property covered by the bill of lading will not be permitted, unless provided by law or unless permission is indorsed on the original bill of lading or given in writing by the shipper. # * “Consigned to order of Pacific Trans. Co. “Destination, East Portland, State of Ore. * # ■ “Notify Otto Grice. “At East Portland, State of Ore. * * ” Under head of “Description of Articles and Special Marks” appear these items: “2 Box H. H. Goods. “1 “ Trunk. — 26 — “1 crt. cedar chest. “1 bhl. and contents. “Declared valuation, $10.00 “Accomplished 1/ 28/ 13. “ J. B. Glover. “Spokane 1098 1/22/13 Pro. 2986 1/28/13.” The weight is given at 1,280, presumably in pounds. The following names appear at the end of the document: “Pacific Trans. Co. Shipper. “Per Coker. “J. C. Mayo, Agent, “Per H. Agent. “Per -.” On the back of this exhibit among others, appear the conditions quoted in the defendant’s answer. In our judgment there is nothing in the interstate commerce law that forbids a common carrier from assuming the common-law liability in the carriage of goods from one state to another. The design of the national legislation on this subject was to extirpate preferences and advantages given by transportation companies to favored shippers, and to compel interstate carriers to treat all alike under the same circumstances. Subject to that congressional statute and the authority of the Interstate Commerce Commission, the carrier is permitted to make reasonable contracts limiting its liability to more favorable terms than the stringent rules of the common law. In the instant case the plaintiffs seek to recover the full value of the goods lost on the hypothesis that they were intrusted to the carrier for shipment and that it has failed to deliver them, and if nothing else is shown that would be the measure of damages. If it would escape responsibility for this amount, the — 27 — defendant must allege and prove facts sufficient to entitle it to the desired reduction of its liability. Regarding the stipulation of facts as a full declaration of the truth, it becomes necessary to compare it with the pleading of the defendant, to ascertain how much of the answer is sustained by this conventional verdict. As noted above, the defendant’s pleading states in substance that, acting by their agent, the Pacific Transfer Company, the plaintiffs elected to have the goods transported under the uniform bill of lading, then and there released the property to a value of $10 per hundredweight in case of loss or damage while in transit, and indorsed the agreement upon the bill of lading. It is conceded on both sides that the property was delivered to the defendant at Spokane by the transfer company as the agent of the plaintiffs. As to the extent of the agency the stipulation is to this effect: That the plaintiffs instructed the Pacific Transfer Company to deliver the shipment to the defendant company for shipment from Spokane to Portland, but gave the transfer company no other or further instructions whatsoever. ■ As stated by Mr. Justice Eakin in Baker v. Seaweard, 63 Or. 350 (127 Pac. 961) : “Any person dealing with an agent does so at his peril.” It is a general principle, well established by precedent, that if one would charge another by the act of a third party the former must establish the real or apparent authority of the alleged agent. In this instance the extent of the agent’s power is stipulated. It was simply to deliver the goods for shipment. The fact has been thus ascertained by the stipulation, and, having been so settled, it is a question of law as to what the agent may do by virtue of such a warrant: Glenn v. Savage, 14 Or. 567 ( 13 Pac. 442). — 28 — As a matter of law, it cannot be said that the power of the plaintiffs’ agent as defined by the statement of facts was extensive enough to sanction the stipulation for the principals about the value of goods or the agreement to the various conditions and provisos that are usually found on the back of documents like the one in question, unless something more is shown in the way of customary dealings between the parties, or some general usage of which all concerned are deemed to have taken notice as a binding rule of business. It is not pretended that the plaintiffs themselves executed or specially authorized the transfer company to execute for them the so-called bill of lading. Neither is there anything in the stipulation of facts about the plaintiffs having elected to ship under the uniform bill of lading. According to that statement it does not appear that they released the property at a value of $10 per hundredweight. This converted allegation of the answer about election of conditions and release of value must therefore be held to have failed of proof. 5. The principal controversy is upon the effect of the clause quoted in the answer about the basis upon which damage shall be calculated. An analysis of that excerpt reveals that there are four conditions affecting the calculation of damage in case of loss. The first is the bona fide invoice price, if any, to the consignee; but no such valuation appears on the bill of lading or in the stipulation. The second is an exception in case a lower value has been represented in writing by the shipper. The third is when a lower value has been agreed upon; but’ nothing appears in the statement of facts on either of these subjects. Anri the fourth is when the value is determined by the classification or tariff upon which the valuation is based. The classification of freight and the tariff — 29 — applicable thereto are not disclosed by either the pleadings or the stipulation. Hence there is nothing in the case in the final analysis to affect the valuation one way or the other, with the result that only the true and actual worth of the goods is open to consideration. The statement of facts is also silent upon the allegation of the answer that the plaintiffs represented the shipment to be of the value of $10 per hundredweight. In short, the proof as agreed upon by the litigants does not establish the defendant’s case as made in its answer. Having admitted that it received the goods for transportation and that it failed to deliver part of them, the defendant was liable under the common-law rule for the actual value of the lost chattels, unless-it had shown a lawfuFcontract lessening its liability. The declaration of the truth settled by the parties does not disclose the necessary excuse in favor of the defendant. In this state of the case the Circuit Court drew the only proper conclusion from the agreed facts. The judgment is affirmed. Affirmed. Rehearing Granted. Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Benson concur.