Browning v. Goodrich Transportation Co.

LyoN, J. The pleadings, the undisputed evidence, and the special verdict establish the facts that the transportation company received the box of clothing in controversy at Chicago for shipment to Milwaukee, and failed to deliver the same to the plaintiffs, who were the owners and consignees thereof; also that the value of the contents thereof was $231. On these facts, were there no special contract restricting the liability of the transportation company for the loss of the box, there can be no doubt of the right of the plaintiff to recover such stipulated value. But counsel for the transportation company contend that the receipt given for the box at Chicago, by the transportation company, restricts its liability. Undoubtedly that receipt con [394] tains the contract of shipment between these parties, and the whole of it, and both parties are bound by it unless it contravenes some established public policy. There is no claim that it does so. This contract relieves the transportation company from liability “ for the dangers of navigation, fire, collision, or delivery, except to land goods on dock or pier.” The argument is that, under the contract, mere non-delivery of the box to the plaintiffs or their agent does not give a right of action, but that a failure by the company to land the goods on dock or pier is essential to such right. Assuming that this position is well taken (as it probably is), the burden is upon the company to show that the box was so landed. We find no testimony in the record tending to show that the box was removed from the vessel on which it was carried to Milwaukee. All that the bill of exceptions contains on the subject is the statement that the defendant gave testimony on the trial “ tending to prove the receipt of the box in Milwaukee, and that it had delivered it to said Stoltz; and upon this question each side produced a number of witnesses.” Certainly these statements do not show that any testimony was given tending to prove the box was ever landed from the vessel. Unless, therefore, some material error intervened in the rulings of the court on the trial, the judgment is correct. The judgment may also be upheld on other grounds. The contract of carriage in Exhibit A contains no express stipulation relieving the transportation company from liability for its own negligence, and the non-delivery of the box to plaintiffs — the circumstances of the loss thereof being unexplained — is presumptive evidence of negligence on the part of the transportation company. It was so held in Black v. Goodrich Transit. Co. 55 Wis. 319, where the question is fully discussed in the opinion by Mr. Justice Taylob, and many cases cited. Such is the settled law of this state. [395] Some exceptions were taken to the rulings of the court on the trial. Such of them as are deemed material will now be considered. The shipping receipt given by the Baltimore & Ohio Express Company for the box in question, at New York, contained provisions relieving that company from liability for loss or damage thereto occurring in a variety of ways not necessary to be here enumerated, and restricting its liability to loss or damage caused by its own fraud or gross negligence, and to $50 in case it should be held liable for any such loss or damage. It also contained a stipulation that all the terms of the contract should extend to and inure to the benefit of any other carrier to whom the box might be delivered for shipment to its destination. This of course includes the defendant company. It is claimed that the stipulations in such shipping receipt operate to limit the recovery in this action to $50. The difficulty with this proposition is that the contract evidenced by such receipt is between the plaintiffs and the express company only. So far as the transportation company is concerned, it was merely a proposition by plaintiffs to that company to carry the box on the same terms the express company had carried it. The transportation company was at liberty to accept it or to make another and different contract of carriage. It chose the latter course, and entered into the contract with plaintiffs contained in Exhibit A. This contract was made by the express company as the agent and in behalf of the plaintiffs, and inures to their benefit, and probably would charge them with liability under it, were any claimed and proved. The New York shipping receipt of the express company was offered in evidence in behalf of defendant, and rejected by the court. Eor the reasons above stated it failed to show a contract between the parties to this action, and hence was properly rejected. Objection was made to the admission of certain testi [396] mony offered by tbe plaintiff for tbe purpose of proving tbe value and identity of tbe goods in tbe box. Tbe testimony was received. So far as tbe value of tbe goods is concerned, that was determined by stipulation, and tbe testimony thereby became immaterial. Tbe identity of tbe goods was sufficiently established by tbe other testimony in tbe case. Hence, if tbe testimony was improperly admitted it could not have harmed tbe defendant, and its admission is no ground for a reversal. We find no material error disclosed in tbe record. See note to this case in 10 L. R. A. 415.— Rep. By the Oourt.— Tbe judgment of tbe circuit court is affirmed.