
    Wells, Fargo & Co. v. Bell.
    
      Common carrier■ — Action to recover package lost• in transit— Contract of carriage in bill of lading — Limits liability to fifty dollars unless value disclosed — Petition alleges contract and answer admits contract and loss — Only issue remaining is negligence — Pleading.
    WRen, in an action to recover from a common carrier of merckandise tRe value of a package lost in transit, tke petition sets out as the contract of carriage a Rill of lading containing a stipulation tkat the liability of the carrier skall not exceed fifty dollars unless tRe value of tRe article is disclosed, admits tkat tke value was not disclosed, and alleges tkat tke package was lost tkrougk tke carrier’s negligence, and tke answer alleges tkat tke goods were lost by tke carrier wkile in tke exercise of due care and admits its liability to tke extent of fifty dollars, no issue, except tkat of negligence, is presented for trial.
    (Decided January 21, 1902.)
    Error to the Circuit Court of Hamilton county.
    Bell brought suit m the court of common pleas to recover of Wells, Fargo & Company, a common carrier of merchandise, $499.30, the alleged value of a package of jewelry which had been consigned by Bell to one Pfaffle at Wolf City, Texas, and not delivered. The petition counted upon the bill of lading delivered by the carrier at the time of the receipt of the merchandise for carriage, and alleged that the package was lost by the carrier’s negligence. By its answer the carrier denied that the jewelry was of the value alleged, but admitted that it had undertaken to carry and deliver it as alleged and that it had failed to make delivery. It averred, however, that its failure in that regard was due to the loss of the package while in transit, which loss occurred wholly without its fault. It further alleged that the contract for the carriage of the goods was the contract expressed in the bill of' lading attached to the petition and none other, and that the parties had thereby agreed that as the rate for the carriage of goods was based upon their value, because of the additional hazard incident to the carriage of goods of greater value, and that Bell, desiring the rates fixed for packages of the value of fifty dollars, agreed in consideration of their carriage at that rate that the carrier’s liability should not exceed fifty dollars unless the true value of the goods should be disclosed, and that he refused to state the value of the goods knowing that he thereby avoided a demand for greater charge for carriage. It further alleged that it was wholly without knowledge as to the value of the goods contained in the package and that it entered into said contract containing a stipulation limiting its liability to fifty dollars without knowledge or information that the package was of greater value. It admitted its liability to the extent of fifty dollars and tendered payment of that amount. The reply was a general denial. On the trial evidence was offered to show that the jewelry was of the value of $499.30. It was also admitted that the printed and written bill of lading was the only contract for carriage and that it contained the stipulation following, to-wit: “Wells, Fargo & Company shall not be held liable * * * for an amount exceeding fifty dollars on any shipment unless its true value is herein stated.” It also appeared that the blanks in the bill of lading were filled by an agent of the shipper in a book of such bills kept by him and this bill was torn from such book, and in his presence, and contemporaneously with the delivery of the package, the agent of the carrier stamped upon the bill “Value asked and not given,” thereupon delivering the bill to him, and that the value of the package was not communicated to the carrier. Evidence was offered by the carrier tending to show that the package was lost in a train robbery and without its fault. And by the shipper tending to show that the loss occurred through the- carrier’s negligence.
    The court thereupon instructed the jury that the carrier could not make a valid stipulation for its exemption from liability on account of a Loss occurring through its negligence. It further instructed them, that the delivery of the package not having been prevented by the act of God or the public enemy, the carrier should be held liable for the value of the package unless the jury should find that the loss did not occur through its negligence and that there was in the contract of shipment a stipulation limiting its liability on account of a loss occurring otherwise. The court then instructed the jury at length as to the elements of such a contract and as to the burden of proof in establishing it. The verdict limited the recovery to the amount for which the carrier admitted its liability. A motion for a new trial was overruled and a judgment was rendered in accordance with the verdict.
    On a petition in error by Bell, the consignor, that judgment was reversed by the circuit court for the following reasons as stated in its journal: “Because the court substantially charged that the plaintiff below, by the introduction in evidence of the receipt given to the plaintiff by the defendant, which contained a clause stating that the liability of the carrier was limited to fifty dollars in case of loss, by having the said paper in his possession and filling out the blanks thereof with the name of the consignor and consignee and presenting the same to the agent of the defendant for his signature at the time of the delivery by plaintiff to defendant of said package, which was duly signed, and by the fact that in his petition he included the instrument and made it a part of the petition, created the presumption that he assented to the instrument, and that the burden of proof, which continued throughout the case upon the defendant express company, to show7 a valid limitation of its liability, shifted and the burden of proof was then upon the plaintiff to show7 by a preponderance of the evidence that the plaintiff did not assent to the conditions of the instrument.
    “That the same w7as duly excepted to and duly and sufficiently assigned for error in the petition in error, and that said record and proceedings are in all other respects free from error: For this error the judgment of the court of common pleas is reversed and the case remanded for a new7 trial.”
    
      Harmon, Oolston, Goldsmith <# Hoadly, for plaintiff in error, cited the following' authorities:
    
      Railroad Co. v. Barrett, 36 Ohio St., 449; Jones on Evidence, Section 174; 5 Am. & Eng. Ency. of Law (2 ed.), pages 31 to 40; Heinemann v. Head, 62 N. Y., 455; Silvus v. State, 22 Ohio St., 90; Railroad v. Roos, 6 Circ. Dec., 333; 9 C. C. R., 201; Durgin v. Express Co., 66 N. H., 277; Lawrence v. Railroad Co., 36 Conn., 63; Railroad Co. v. Brumley, 33 Tenn., 401; Ryan v. Railroad Co., 65 Texas, 13; Boorman v. Express Co., 21 Wis., 154; Express Co. v. Guthrie, 9 Bush (Ky.), 78; Gaines v. Insurance Co., 28 Ohio St., 418; Railroad Co. v. La Tourette, 1 Circ. Dec., 486; 2 C. C. R., 279; Railroad Co. v. Pontius, 19 Ohio St., 221; Muller v. Railroad Co., 2 Cin. Sup. Ct. Rep., 280; Rice v. Dwight Mfg. Co., 2 Cush., 80; Railroad Co. v. Seiberling Co., 4 Circ. Dec., 210; 8 C. C. R., 593; Gibson v. Express Co., 1 Hun., 387.
    
      Gobb & Howard, for defendant in error, cited the following authorities:
    
      McLaughlin v. Railroad Co., 61 Ohio St., 279; 43 W. L. B., 47; Minnear v. Holloway, 56 Ohio St., 148; Railroad Co. v. Barrett, 36 Ohio St., 453; Graham v. Davis, 4 Ohio St., 362; Davidson v. Graham, 2 Ohio St., 131; Express Co. v. Schwab, 53 Ohio St., 659; Davis v. Hines, 6 Ohio St., 473; Railroad Co. v. Fitzpatrick, 42 Ohio St., 318.
   Shauck, J.

It does not seem necessary to inquire whether in stating the reason of its judgment of reversal the circuit court correctly repeated the substance of the instruction which the trial court gave to the jury upon the point stated. It is admitted that when he instructed the jury that a common carrier cannot limit its liability on account of.goods lost by its negligence, he satisfied the requirement of the law of this state in that particular. In view of tlaat instruction the verdict necessarily implied a finding by the jury that the goods were not lost by reason of the carrier’s negligence.

Attention to the record will show that after that finding there was no question for the jury to determine; and it will follow1- that if there wms error in another portion of the charge it could not be prejudicial to the shipper. The bill of lading contained the stipulation that the carrier should not be. liable for an amount exceeding fifty dollars unless the true value of the goods was therein stated. The value was not therein stated. In the presence of the shipper, and contemporaneously with the delivery of the goods for carriage, the agent of the carrier stamped upon the bill the words “Value asked and not given.” The plaintiff attached this bill of lading to his petition and counted upon it as the contract for carriage. IT is petition would therefore have shown a right to recover only fifty dollars but for the allegation that the goods were lost through the negligence of the carrier. That allegation, its denial by the carrier and the conflicting evidence upon the subject of negligence raised the only question with respect to which either party was entitled to an instruction. That the bill of lading containing the' limitation upon the carrier’s liability was the contract for carriage was shown by the petition. It was alleged in the answer. Upon the trial it was proved by the undisputed testimony of both parties. By that time, certainly, it should have been régarded as established. Under instructions Admitted to have been as favorable to the shipper as he could request, the jury were directed to find whether the loss of the goods was from a cause which would render the stipulation ineffectual. When the trial judge passed from that issue and gave the jury instructions to guide them in determining what was the contract for carriage he merely gave to the shipper an undeserved opportunity to secure a verdict. This conclusion needs no support from the facts clearly shown that the shipper knew that the stipulation limiting the carrier’s liability was in the contract and that he did not disclose the value of the goods because he knew that a higher charge for carriage would be made in view of the increased risk. The result of the trial in the court of common pleas renders it immaterial whether in view of the shipper’s concealment of the value of the goods, it was proper to give the unconditional instruction that the carrier was liable for the full value of the goods if they were lost by its negligence.

Judgment of the circuit court reversed and that of the common pleas affirmed.

Mtnsi-iall, C. J., Burket, Spear and Davis, JJ., concur.  