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(72 Colo. 248, 210 Pao. 602.) ble for loss due to their own negli- 1920 terminated Federal control on gence.

March 1, save as to "regulations Cases cited by defendant in which and practices on lines" subject to a limited liability was printed in a the Interstate Commerce Act (24 railway ticket which, after pur- Stat. at L. 379, chap. 104). Section chase and opportunity for examina- 1 of that act (4 Fed. Stat. Anno. tion, was used by a traveler as a . 337, Comp. Stat. § 8563) provides basis for checking baggage, gratui- that it shall not apply to the "retous bailments, and bailments evi- ceiving, delivering, storage, or handenced by checks or receipts requir- dling of property wholly within one ing specific notation at the time of state.” If, therefore, the business the bailment of the articles in ques- of defendant was properly taken tion or their values, are clearly dis- over under the act of Congress tinguishable in principle from the and the presidential proclamation case at bar and require no further (which question we find it unnecesexamination.

sary to decide), such Federal control It is next contended that this lim

terminated prior to the date when itation is valid under an order of the

the cause of action herein arose. Director General of Railroads whioh

In our opinion there was no conwas extended up to and including tract between plaintiff and defendSeptember 20, 1920, by the United

ant limiting the bailee's liability for States Transportation Act of that

negligence, and no order of the Di. year (41 Stat. at L. 456, chap. 91,

rector General of Railroads is here Comp. Stat. § 100714, Fed. Stat.

involved. The supersedeas is acAnno. Supp. 1920, p. 72). The President of the United States took over

cordingly denied, and the judgment the railroads under Act Cong. of affirmed. August 29, 1916, chap. 418 (39

Campbell, J., not participating. Stat. at L. 645, Comp. Stat. $ 1974a), and his proclamation was is- Petition for rehearing denied Desued December 28, 1917. The Act of cember 4, 1922.

ANNOTATION.

Carrier's liability in respect to baggage checked in parcel room.

1. Introductory, 157.

III. Effect of clause or notice limiting II. Liability in absence of express limi

liability. tation, 157.

(Supplementing annotation in 7 [No later decisions herein.]

A.L.R. 1235.) III. Effect of clause or notice limiting

In three of the late cases the courts liability, 157.

have held that where one checks an 1. Introductory.

article at the parcel room of a carrier

and receives a notice of limitation of This annotation is supplementary liability on the part of the carrier for to that in 7 A.L.R. at page 1234, and

damage to or loss of the goods, the limitreats those cases only which have arisen since the publication of that

tation will be upheld and the bailor note.

restricted, in case of recovery of dam

ages, to that amount. II. Liability in absence of express limi- In Missouri P. R. Co. v. Fuqua tation.

(1921) 150 Ark. 145, 233 S. W. 926, 21 No later decisions herein. For N. C. C. A. 195, it appeared that the earlier cases, see annotation in 7 plaintiff checked his suit case at the A.L.R. 1234.

defendant's parcel room, and on the payment of 10 cents received a be some limitation plared upon the check containing a provision that the value of the article so deposited. If company "will not be responsible for this were not so then the defendant loss, damage, or detention of articles would have been bound if plaintiff left in storage for any amount in ex- had deposited with his suit case $100,cess of $25.” Following the destruc- 000 worth of diamonds or other artition of the suit case and its contents cles of similar great value. The by fire, which loss could have been condition, therefore, in itself, seems prevented by due care, the plaintiff to have been a reasonable one. The recovered a judgment for $150 for the notice as to the condition would also loss thereof, which, however, was seem to have been reasonable. The modified by a reduction to $25, the defendant had a right to assume that amount specified in the limitation the plaintiff could read the English provision. The contract was declared language; had also a right to assume broad enough to limit the carrier's li- that the plaintiff would take notice ability on any account. It was said that by reason of the very small too: "A warehouseman may limit his charge he could not expect an unlimitliability to an agreed value of the ed liability.” The defendant was said article received, where the rate to have done all that was necessary to charged is based upon the value of the put the plaintiff on notice, the plainarticle. This character of contract tiff was held bound by the limitation, does not contravene the principle that and judgment was given accordingly. one cannot contract for exemption or In Gibaud v. Great Eastern R. Co. limitation from liability on account [1921] 2 K. B. (Eng.) 426, the plainof his own negligence.”

tiff sought to recover damages for the And a limitation on a bailee's liabil- loss of a bicycle checked by him at a ity for loss or damage to property suburban station of the defendant checked in a parcel room was upheld where the booking office was used as by the court in Noyes v. Hines (1920). a cloakroom, the bicycle being left 220 I:). App. 409, wherein it appeared near the booking office door at the that the plaintiff had checked a Glad- direction of the clerk when the plainstone bag with the defendant, whose tiff asked whether he should take it servant delivered the bag by mistake into the booking office. The plaintiff to another. The check handed to the was given a ticket containing the folplaintiff at the time contained on the lowing condition: “The company will back thereof a provision limiting the not be in any way responsible in redefendant's liability for loss or injury spect of any article deposited the to the property to $25, and a placard value whereof exceeds £5 unless at above the parcel room carried the the time of deposit the true value and same notice. On the question wheth- nature of the article shall have been er this provision of limitation became declared and id. per £1 sterling of part of the contract of bailment the the declared value be paid for each court said: “We think the weight of day or part of a day in addition to authority is to the effect that when a the ordinary cloakroom charges. For person accepts a ticket from a bailee further conditions and scale of in receipt for a parcel deposited with charges see back of this ticket.” It him, he is bound by the terms and was urged that the condition of limiconditions of that receipt in so far as tation did not apply because the conhe has reasonable notice of the same, tract of bailment contemplated the and in so far as the same are reason- keeping of articles in the cloakroom able. In this case it does not seem or booking office, and if the article to be unreasonable to hold that a was kept elsewhere there was a breach person depositing luggage or similar of the contract. With this, however, articles temporarily, in the manner as the court disagreed, pointing out that słown by the evidence, and for a con- the contract did not specify where sideration of only 10 cents to be paid articles were to be kept, and that, by him, would expect that there would moreover, some of the articles named

a

was

on the ticket were obviously of such a size that they could not be kept in a cloakroom or suburban booking office. The limitation clause was considered reasonable, the opinion of Blackburn, J., in Harris v. Great Western R. Co. (1876) L. R. 1 Q. B. Div. (Eng.) 515, 45 L. J. Q. B. N. S. 729, 34 L. T. N. S. 647, 25 Week. Rep. 63, being cited to that effect. And the court refused to take the view that the clause would not protect the defendant because it exempted it from its own negligence. Scrutton, L. J., said: “When I read the clause 'will not be in any way responsible,' and remember that the li. ability of the company was for negligence,-that is

to say, they were bound to use reasonable care,-it seems to me that those words are clearly sufficient to protect the company, particularly in a case where it is eminently reasonable that they should be protected—if the man who deposits property of large value has not taken the trouble to pay the company for the excess in value of the property which he is leaving with them."

The opposite view, however, has been taken by the courts in five of the later cases wherein similar clauses limiting the bailee's liability for loss or damage to goods have been held not binding on the bailor.

In Lebkeucher v. Pennsylvania R. Co. (1922) — N. J. L. -, 116 Atl. 323, it appeared that the plaintiff deposited with the defendant two parcels, receiving only one on her return, the other parcel having been delivered by mistake to another. On the back of the check given her was a provision limiting the liability of the defendant to the sum of $25. A placard at the parcel room made a similar proclamation. The plaintiff, however, did not have either notice brought to her knowledge, and on this ground was held not to be bound thereby. Said the court: "The bailee must bring home to the bailor notice of the special terms upon which the bailment is accepted in order to limit liability." The case Healy v. New York C. & H. R. R. Co. (1912) 153 App. Div. 516, 138 N. Y. Supp. 287,

was cited as sustaining this view. The court declared that there was sufficient evidence to support a finding of negligence. See to the same effect, Lancaster v. Sanford (1920) Tex. Civ. App. —, 225 S. W. 808, wherein it was also said: “There is high authority for holding that the burden of proof rests upon those who invoke a limiting clause in such instruments to show that the party receiving it had his attention called thereto and assented to the terms."

And similar conclusion reached in Brown v. Hines (1923) Mo. App. —, 249 S. W. 683, wherein it appeared that the plaintiff lost his golf bag and contents when the defendant, with whom he had left it for safe-keeping, delivered it by mistake to another. The limitation of liability on the part of the defendant to $10, printed on the check given to the plaintiff, was held to be of no effect, as the plaintiff had no knowledge whatever of such limitation. And said the court: “We think that the limitation of liability attempted to be made by the defendant was nonenforceable for the further reason that the bailment was completed at the time the check was issued. Plaintiff had paid, and defendant had received, the charge for keeping the property, and, as plaintiff testified, had also received the golf bag. The check could not in any sense be construed as a contract because it was issued after the contract of bailment was made. Cothren v. Kansas City Laundry Seryice Co. (1922) Mo. App. — 242 S. W. 168; 3 R. C. L. 106, 107. It was a mere token showing who was entitled to the possession of the property when called for. There was no showing that plaintiff agreed to the conditions printed upon the check, for the reason that he had checked parcels before at the same check stand and that he saw printed matter, which he did not read, upon the check that he received when he checked the bag in question, as his consent cannot be inferred from these facts.” Continuing, it was said: “We do not think that the cases of Terry v. Southern R. Co.

(1908) 81 S. C. 279, 18 L.R.A. (N.S.) liability, at the same time refuting 295, 62 S. E. 249, and Missouri P. R. that in the case of Noyes v. Hines Co. v. Fuqua (1921) 150 Ark. 145, 233 (1920) 220 Ill. App. 409. There was S. W. 926, 21 N. C. C. A. 195, are well- a question, said the court, whether the considered cases or are in accordance attempted limitation, notice of which with the great weight of authority in was printed on the check delivered to this country upon the subject. The the plaintiff and on a placard above decision in the latter case is based the check-room window, rose to the upon the statement: 'A warehouse- dignity of a contract. It was held man may limit his liability to an that there was no presumption in agreed value of the article received, favor of a limitation of liability, but where the rate charged was based that one alleging such limitation upon the value of the article. This should be held to strict proof. And if character of contract does not con- the defendant contracted as a waretravene the principle that one cannot houseman, it was liable for loss to its contract for exemption or limitation own negligence. It was the court's from liability on account of his own conclusion that there was no contract negligence. From the facts stated in between the parties limiting the dethe opinion there was no agreement of fendant's liability for negligence, and any kind entered into by the bailor, no order of the Director General could but merely that a check was issued to avail the defendant, since Federal the owner of the suit case stating that control of the railroads had termithe warehouseman ‘would not be nated prior to the time when the responsible for loss, damage, or de- plaintiff's cause of action arose. tention of articles left in storage for In Van Noy Interstate Co. v. Tucker any amount in excess of $25. This (1921) 125 Miss. 260, 87 So. 643, does not show any agreed valuation wherein it appeared that the defendof the contents of the particular suit ant had lost a suit case and its concase and, of course, no contract that tents belonging to the plaintiff and plaintiff should be bound by the $25 checked with them for safe-keeping, limitation of liability. A mere gen- the court adopted the rule laid down eral limitation as to value expressed in Healy v. New York C. & H. R. R. Co. in printed form intended to be appli- (N. Y.) supra, that a bailor who is cable to the property of all persons not advised of a special contract limamounts to no more than an arbitrary iting the liability of the bailee, and preadjustment of damages."

printed on the back of a check, given And in the reported case (DENVER to the bailor for the identification of UNION TERMINAL R. Co. v. CULLINAN, his baggage, is not deemed to have ante, 154) another court accepted assented thereto, and consequently is the reasoning of the decision in Healy not bound thereby. It does not appear v. New York C. & H. R. R. Co. (1912) in this case that the defendant was a 153 App. Div. 516, 138 N. Y. Supp. 287, common carrier but its checking room affirmed in (1914) 210 N. Y. 646, 105 was located in the waiting room of N. E. 1086, denying the limitation of a railroad station.

R. S.

H. O. WILBUR & SONS, Inc., Appt.,

V. ARTHUR H. LAMBORN et al., Copartners as Lamborn & Company,

Pennsylvania Supreme Court - February 19, 1923.

(276 Pa. 479, 120 Atl. 478.) Sale - designation of carrying vessel – right of substitution.

Under a contract to sell sugar to be shipped from foreign port, "names (276 Pa. 479, 120 Atl. 478.) of . . steamers to be declared later," a declaration of a carrying vessel does not, in case it becomes disabled, prevent delivery of sugar of similar kind by another vessel, arriving at destination at a time reasonably near that in which the designated vessel would have arrived but for the interruption, even though the carrying vessel was diverted from its original destination in order to make the delivery.

(See note on this question beginning on page 165.]

er.

APPEAL by plaintiff from a judgment of the Court of Common Pleas, No. 1, for Philadelphia County (Shoemaker, J.), denying a motion for judgment notwithstanding a verdict for defendants in an action brought to recover the amount of two drafts alleged to have been presented and collected in violation of a contract of sale of sugar between plaintiff and defendants. Affirmed.

The facts are stated in the opinion of the court.

Messrs. Clement B. Wood, Francis 40 L. T. N. S. 476, 27 Week. Rep. 631– B. Bracken, and Morgan, Lewis, & C. A.; Steinhardt v. Bingham, 182 N. Bockins, for appellant:

Y. 326, 75 N. E. 403; Gath v. Lees, 3 In mercantile contracts every stipu- Hurlst. & C. 557, 159 Eng. Reprint, lation in the contract is material and 650. important. The nonperformance of Messrs. Thomas Stokes, George any stipulation by the seller entitles Wharton Pepper, and Van Doren, the buyer to reject the tender.

Conklin, & McNevin, for appellees: Norrington v. Wright, 115 U. S. 188, The provision relating to declara29 L. ed. 366, 6 Sup. Ct. Rep. 12; tion of steamers was not a condition Bowes v. Shand, L. R. 2 App. Cas. 455, precedent, but was an independent 46 L. J. Q. B. N. S. 561, 36 L. T. N. S. stipulation for the benefit of the sell857, 25 Week. Rep. 730; Filley v. Pope, 115 U. S. 213, 29 L, ed. 372, 6 Sup. Ct. Pennsylvania Sugar Co. v. CzarniRep. 19; Johnson V. Macdonald, 9 kow-Rionda Co. 158 C. C. A. 201, 245 Mees. & W. 600, 152 Eng. Reprint, 253, Fed. 913; Filley v. Pope, 115 U. S. 213, 12 L. J. Exch. N. S. 99, 6 Jur. 264; 29 L. ed. 372, 6 Sup. Ct. Rep. 19; Neill Harrison v. Fortlage, 161 U. S. 57, 40 v. Whitworth, 18 C. B. N. S. 435, 144 L. ed. 616, 16 Sup. Ct. Rep. 488; Dor- Eng. Reprint, 513, 34 L. J. C. P. N. S. rance v. Barber & Co. 262 Fed. 489. 155, 11 Jur. N. S. 158, 11 L. T. N. S.

The declaration of the steamer is a 677, 13 Week. Rep. 461; Harrison v. material stipulation in the contract, Fortlage, 161 U. S. 57, 40 L. ed. 616, and performance of the stipulation by 16 Sup. Ct. Rep. 488; J. Hungerford the seller, in accordance with the Smith Co. v. Lamborn, 200 N. Y. Supp. terms of the contract, is a condition 292; Matthew Smith Tea, Coffee & precedent.

Grocery Co. v. Lamborn & Co. 276 Fed. Texas Co. v. Hogarth Shipping Co. 325. 256 U. S. 619, 65 L. ed. 1123, 41 Sup. The substitution of one steamer for Ct. Rep. 612; Nickoll & Knight v. Ash- another by the seller at any time beton, E. & Co. [1901] 2 K. B. 126, 70 fore delivery, when made for a reaL. J. K. B. N. S. 600, 49 Week. Rep. sonable cause, is not a breach of the 513, 84 L. T. N. S. 804, 17 Times L. R. stipulation that names of steamers 467, 6 Com. Cas. 151, 9 Asp. Mar. L. shall be declared later. Cas. 209–C. A.; Dorrance v. Barber, Thornton v. Simpson, 6 Taunt. 556, supra; Thornton v. Simpson, 6 Taunt. 128 Eng. Reprint, 1151, 2 Marsh. 267, 556, 128 Eng. Reprint, 1151, 2 Marsh. Holt, N. P. 164; Iasigi v. Rosenstein, 267, Holt, N. P. 164; Busk v. Spence, 141 N. Y. 414, 36 N. E. 509 ; Cunning4 Campb. 329; Graves v. Legg, 9 Exch. ham v. Judson, 100 N. Y. 179, 2 N. E, 709, 156 Eng. Reprint, 304, 2 C. L. R. 915. 1266, 23 L. J. Exch. N. S. 228; Gilkes There never was an unconditional v. Leonino, 4 C. B. N. S. 485, 140 Eng. declaration prior to the declaration Reprint, 1180, 4 Jur. N. S. 537, 6 Week. of the West Cheswald, and hence Rep. 620; Reuter v. Sala, 48 L. J. C. there was no alteration of a previous P. N. S. 492, L. R. 4 C. P. Div. 239, declaration.

27 A.L.R.-11.

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