Brown, C. J.
1. We see no good reason why the defendant in the Court below, should not have been permitted to withdraw the admissions made by him, simply to save the other party the expense and trouble of getting up the testimony; if it be discovered that they had been made by inadvertance, or mistake, or for any other reason, were not true: Provided, there was sufficient time after the withdrawal for the plaintiff to prepare his case for trial. But this would not be permitted if the plaintiff would be injured by anything that occurred while he relied upon the admission, as in case of the death of an important witness, whose testimony he would otherwise have procured, or the like. This ruling is confined to the class of cases now under consideration, and does not apply to admissions made in the ordinary transactions of life which are governed by well known rules of evidence.
2. As Matthews, the plaintiff, delivered the cotton to the Western and Atlantic Railroad, for shipment, the road will not be permitted to dispute his title in this action, by setting up title in third persons, which is not being enforced against it. Revised Code, section 2050.
3. But the important point in the defence set up by the road to this suit, remains' to be considered. Was there an express contract entered into between the road and Matthews, the plaintiff, limiting the liability of the road as a common-carrier ? After an attentive examination of this record, we are satisfied there was, and that the rights of these parties must be governed by that contract.
Mr. Dooley, an officer of the road, swears in substance, that such was the dilapidated condition of the rolling-stock of the road, growing out of the war, then very recently closed, that with the means that could be commanded within the limited time which had transpired, insecurity of freights shipped on the road could not have been avoided by the xxxad, or its offi[631]*631cers, or employees, and that the work of repair was so great that it could not be done within a month or other limited time. And in connection with this testimony of Mr. Dooley, it must be remembered that the road had been turned over to the officers of the State, by the military, a very short time before this shipment was made. Mr. Dooley also testifies, that Elliott & Jarnigan knew the condition of the road and its rolling-stock, and that they were shipping a good deal of cotton at that time. They shipped for a large number of parties who forwarded through them, and that in a conversation with Elliott a short time after this lot of cotton was burnt, he, Dooley refused to risk the fiat cars to ship cotton, although there was no risk to the road for the cotton, the parties having that insured. Elliott said he would risk the cotton on flat cars, and insisted on shipping on those cars, when others were not to be had, it being understood at the time that the risk of the cotton was on the insurance companies. But, says Dooley, I told him the road would lose the cars, and I would not let any more go on flat cars. After this he continued to ship whenever box-cars could be had, etc.
Dooley also annexes to his answers the form of a receipt, or special contract used by the Western and Atlantic Railroad at that time in its shipments, which is a copy of the one used in this case, and a copy of the receipts which Elliott & Jarnigan, as agents of the Tennessee roads, running a through line in connection with the State Road used in . their shipments, for persons who sent cotton to them to be shipped over that line. It is an established fact, therefore, that Elliott & Jarnigan knew the condition of the road, and of its rolling-stock, and knew that its officers refused to make shipments without a contract limiting their liability, and knew that the form of receipt used by the road, and kept by them as agents of the coifnecting roads, making together with the Western and Atlantic Road the through line, was intended to be used as the evidence of the express contract, limiting the liability of the road as therein specified, and that among other things in case the cotton shipped were burnt on the line of the road, or at its stations, it was not to be liable.
[632]*632Thus the matter stood as between Elliott & Jamigan and the road. Let us next enquire what, relation Matthews bore to these parties, and what were his means of knowing the facts. Elliott, in his testimony, says, “ he thinks that the plaintiff (Matthews) took the receipt in the firm name of Elliott & Jarnigan. Said firm name was used because the cotton came here (to Atlanta) from West Point, consigned to Elliott & Jarnigan, and Matthews happened to be in Atlanta and attended to it himself, to prevent delay.”
This shows that Elliott & Jarnigan were not only the agents of the through line of roads, to solicit shipments, and knew the terms upon which cotton was shipped over that line, but they were also the agents of Matthews, the plaintiff, who consigned his cotton to them for shipment, and had it shipped in their name. This is confirmed by Matthews, who swears that all the cotton he shipped by said railroad was shipped in the name of Elliott & Jarnigan. Then there can be no controversy about the fact, that Matthews, by his agents, through whom he shipped his cotton, had notice of the condition of the road, and of the terms on which it received cotton for shipment.
But we are not compelled to rest the case here. : We have still stronger evidence that Matthews had notice of the condition of affairs, and agreed to the express contract contained in this receipt limiting the liability of the road in case of destruction by fire, etc. He says, in his answers, “ I made out the bills of lading myself, in their name (the name of Elliott & Jarnigan, from whom he got the blanks,) and got them signed by the bill-of-lading clerk of the railroad.”
I need not multiply quotations from the evidence. Here is an express admission under oath made by the party himself, that he made out the bills of lading and got the agent of the road to sign them. He may in a subsequent examination deny his knowledge of the terms upon which the road was shipping cotton at that time, or of the contents of the receipt, but it cannot avail him. The law charges him with knowledge of the contents of the contract, used by his own agents, [633]*633and filled up by himself, and carried by him to the agent of the road for signature.
Upon these facts as already stated, we hold that the receipt in this case was the written evidence of an express contract, between the plaintiff and the road, by which its liability was to be limited as specified in the receipt.
Taking this view of the rights of these parties, it becomes unnecessary to notice the other points made in the bill of exceptions. The matter of insurance as well as the loss by fire, are provided for in the written contract, and the Court and jury on the next trial, will have no difficulty in arriving at a correct conclusion as to the rights and liability of the road under the contract.
It may be proper to remark, that there is a clear distinction between the case made by this record, and the cases of Purcell, Newby, and others, against the Southern Express Company, cited in the brief of the counsel for the defendant in error. In no one of those eases was the receipt prepared by the person shipping the goods and tendered to the company for signature.
Free access — add to your briefcase to read the full text and ask questions with AI
Brown, C. J.
1. We see no good reason why the defendant in the Court below, should not have been permitted to withdraw the admissions made by him, simply to save the other party the expense and trouble of getting up the testimony; if it be discovered that they had been made by inadvertance, or mistake, or for any other reason, were not true: Provided, there was sufficient time after the withdrawal for the plaintiff to prepare his case for trial. But this would not be permitted if the plaintiff would be injured by anything that occurred while he relied upon the admission, as in case of the death of an important witness, whose testimony he would otherwise have procured, or the like. This ruling is confined to the class of cases now under consideration, and does not apply to admissions made in the ordinary transactions of life which are governed by well known rules of evidence.
2. As Matthews, the plaintiff, delivered the cotton to the Western and Atlantic Railroad, for shipment, the road will not be permitted to dispute his title in this action, by setting up title in third persons, which is not being enforced against it. Revised Code, section 2050.
3. But the important point in the defence set up by the road to this suit, remains' to be considered. Was there an express contract entered into between the road and Matthews, the plaintiff, limiting the liability of the road as a common-carrier ? After an attentive examination of this record, we are satisfied there was, and that the rights of these parties must be governed by that contract.
Mr. Dooley, an officer of the road, swears in substance, that such was the dilapidated condition of the rolling-stock of the road, growing out of the war, then very recently closed, that with the means that could be commanded within the limited time which had transpired, insecurity of freights shipped on the road could not have been avoided by the xxxad, or its offi[631]*631cers, or employees, and that the work of repair was so great that it could not be done within a month or other limited time. And in connection with this testimony of Mr. Dooley, it must be remembered that the road had been turned over to the officers of the State, by the military, a very short time before this shipment was made. Mr. Dooley also testifies, that Elliott & Jarnigan knew the condition of the road and its rolling-stock, and that they were shipping a good deal of cotton at that time. They shipped for a large number of parties who forwarded through them, and that in a conversation with Elliott a short time after this lot of cotton was burnt, he, Dooley refused to risk the fiat cars to ship cotton, although there was no risk to the road for the cotton, the parties having that insured. Elliott said he would risk the cotton on flat cars, and insisted on shipping on those cars, when others were not to be had, it being understood at the time that the risk of the cotton was on the insurance companies. But, says Dooley, I told him the road would lose the cars, and I would not let any more go on flat cars. After this he continued to ship whenever box-cars could be had, etc.
Dooley also annexes to his answers the form of a receipt, or special contract used by the Western and Atlantic Railroad at that time in its shipments, which is a copy of the one used in this case, and a copy of the receipts which Elliott & Jarnigan, as agents of the Tennessee roads, running a through line in connection with the State Road used in . their shipments, for persons who sent cotton to them to be shipped over that line. It is an established fact, therefore, that Elliott & Jarnigan knew the condition of the road, and of its rolling-stock, and knew that its officers refused to make shipments without a contract limiting their liability, and knew that the form of receipt used by the road, and kept by them as agents of the coifnecting roads, making together with the Western and Atlantic Road the through line, was intended to be used as the evidence of the express contract, limiting the liability of the road as therein specified, and that among other things in case the cotton shipped were burnt on the line of the road, or at its stations, it was not to be liable.
[632]*632Thus the matter stood as between Elliott & Jamigan and the road. Let us next enquire what, relation Matthews bore to these parties, and what were his means of knowing the facts. Elliott, in his testimony, says, “ he thinks that the plaintiff (Matthews) took the receipt in the firm name of Elliott & Jarnigan. Said firm name was used because the cotton came here (to Atlanta) from West Point, consigned to Elliott & Jarnigan, and Matthews happened to be in Atlanta and attended to it himself, to prevent delay.”
This shows that Elliott & Jarnigan were not only the agents of the through line of roads, to solicit shipments, and knew the terms upon which cotton was shipped over that line, but they were also the agents of Matthews, the plaintiff, who consigned his cotton to them for shipment, and had it shipped in their name. This is confirmed by Matthews, who swears that all the cotton he shipped by said railroad was shipped in the name of Elliott & Jarnigan. Then there can be no controversy about the fact, that Matthews, by his agents, through whom he shipped his cotton, had notice of the condition of the road, and of the terms on which it received cotton for shipment.
But we are not compelled to rest the case here. : We have still stronger evidence that Matthews had notice of the condition of affairs, and agreed to the express contract contained in this receipt limiting the liability of the road in case of destruction by fire, etc. He says, in his answers, “ I made out the bills of lading myself, in their name (the name of Elliott & Jarnigan, from whom he got the blanks,) and got them signed by the bill-of-lading clerk of the railroad.”
I need not multiply quotations from the evidence. Here is an express admission under oath made by the party himself, that he made out the bills of lading and got the agent of the road to sign them. He may in a subsequent examination deny his knowledge of the terms upon which the road was shipping cotton at that time, or of the contents of the receipt, but it cannot avail him. The law charges him with knowledge of the contents of the contract, used by his own agents, [633]*633and filled up by himself, and carried by him to the agent of the road for signature.
Upon these facts as already stated, we hold that the receipt in this case was the written evidence of an express contract, between the plaintiff and the road, by which its liability was to be limited as specified in the receipt.
Taking this view of the rights of these parties, it becomes unnecessary to notice the other points made in the bill of exceptions. The matter of insurance as well as the loss by fire, are provided for in the written contract, and the Court and jury on the next trial, will have no difficulty in arriving at a correct conclusion as to the rights and liability of the road under the contract.
It may be proper to remark, that there is a clear distinction between the case made by this record, and the cases of Purcell, Newby, and others, against the Southern Express Company, cited in the brief of the counsel for the defendant in error. In no one of those eases was the receipt prepared by the person shipping the goods and tendered to the company for signature. Nor does it appear in any one of them that the shipper did in fact have actual notice of the contents of the receipt given for the goods.
In the Southern Express Company vs. Purcell, 37 Ga. 103, which may be said to be the most thoroughly considered of the cases referred to, Warner, C. J., says: “ The defendant’s liability as a common-carrier is regulated by law upon grounds of public policy, and he can not be permitted by his own act to limit the effect and operation of that law, and thereby defeat the public policy.” Again, he says: “ But the common-carrier and the shipper may enter into an express contract, outside of the receipt given for the goods, in regard to the carrier’s liability, and then both parties having a fair opportunity to understand the terms of the contract will be governed by it.”
This language fairly construed, in reference to the case made by the record then before the Court, simply means that while the carrier cannot, by any act of his own, to which the other party does not consent, limit his liability, the par[634]*634ties may make an express contract for that purpose, and if they both have a fair opportunity to understand the terms of the contract entered into, they, are bound by it.
Here both parties had that fair opportunity. The carrier did not limit its liability by its oim act alone, but by the consent of the shipper. Nobody was entrapped or deceived. The shipper made out such written contract as he was satisfied with, and carried it to the agent of the road, who signed it, and we hold that he is bound by it.
In the case of the York Company vs. The Illinois Central Railroad Company, 3d Wallace’s Reports, 107, the Supreme Court of the United States have unanimously held that: “ The common law liability of a common-carrier for the safe carriage of goods may be limited and qualified by special contract with the owner; provided such special contract do not attempt to cover losses by negligence or misconduct.” Thus, when a contract for the transportation of cotton from Memphis to Boston was in the form of a bill of lading, containing a clause exempting the carrier from liability for losses by fire, and the cotton was destroyed by fire, the exemption was held sufficient to protect the carrier, the fire not having been occasioned by any want of due care on his part.
In this case the receipt was in the usual form, with a limitation of liability in the following words, “fire and the unavoidable dangers of the river only excepted.” The shipper was examined by interrogatories, and annexed a copy of the receipt to his answers, in which he swore that the cotton was shipped on the steamer belonging to the Company before the bills were signed ; that he had not examined the bills ; that his attention was not called to the fire clause,and that his firm had no authority to ship for their principals with that exemption. Mr. Justice Field, delivering the opinion of the Court, says: “ Nor do we perceive any good reason, on principle, why parties should not be permitted to contract for a limited responsibility. The transaction concerns them only, it involves simply rights of property, and the public can have no interest in requiring the responsibility of insurance to accompany the service of transportation in face of a special agree[635]*635ment for its relinquishment. By the special agreement the carrier becomes, with reference to the particular transaction, an ordinary bailee and private carrier for hire.”
Again he says: “ But when such stipulation is made out, and it does not cover losses from negligence or misconduct, we can perceive no just reason for refusing its recognition and enforcement.”
To avoid misapprehension it is proper to state, that this decision recognizes the doctrine that a common-carrier is bound to l’eceive goods tendered to him in his line of business, for shipment, and he is liable to a suit for damages for refusing to take them. He cannot screen himself from liability by any general or special notice, nor can he coerce the owner to yield assent to a limitation of responsibility by making exhorbitant charges when such assent is refused. But he may, with the assent of the owner, make a special contract in the face of the receipt, which will limit his liability. This is the doctrine maintained by the unanimous judgment of the Supreme Court of the United States, in the last case decided by it, which involved this question.
We put our judgment, however, upon the facts of this case, which are cl’early distinguishable from the cases decided ■ by this Court, which were claimed as authority by counsel for the defendant in error.
Judgment reversed.