Fitch v. Carpenter

Plaintiffs recovered a judgment in the sum of $1,950 as damages suffered in the loss of their household goods which defendant W. L. Carpenter, doing business under

In addition to denials, the answer alleged that plaintiffs instructed defendant to set the goods off at San Francisco until notified by plaintiffs that they were ready to accept delivery thereof; that this instruction was followed; that the goods were destroyed by fire while so set off, and it alleged the making of a special contract of carriage, by the terms of which defendant’s liability was limited to a sum equal to ten cents per pound for the weight of the goods shipped, amounting in the aggregate to $528. The agreement pleaded by defendant as a limitation upon his liability consisted of a provision in a bill of lading that the value of the property did not exceed ten cents per pound. Floyd Fitch, 16-year-old son of plaintiffs, signed his own name to this declaration of value in the bill of lading. Plaintiffs filed an affidavit denying the authority of their son to enter into an agreement on their behalf and the due execution by them of the alleged agreement limiting defendant’s liability.

The court found the allegations of the complaint to be true, with the exception of the amount of plaintiffs’ damage, which was fixed at $1,950. It was further found that plaintiffs did not execute the bills of lading and did not authorize their son to execute the same on their behalf and that they did not authorize the stopping of said goods in transit at San Francisco nor the unloading thereof by defendant. Although by finding the allegations of the complaint to be true the court found that defendant represented the goods to be covered by

Plaintiffs arranged for the shipment of their gopds at defendant’s San Francisco office during the week preceding January 4, 1943. They were present while the goods were being loaded at their home in Mill Valley on January 4, 1943. Shortly before defendant’s van left, and while plaintiffs were in the house, their son Floyd Fitch, at the request of one of defendant’s employees, affixed his own name to a bill of lading as the owner of the property and after the van left he told plaintiff Lester A. Fitch that he had signed some paper. No copy of the bill of lading was furnished to plaintiffs or their son at the time. After the van left, plaintiffs drove to San Francisco on their way to Los Angeles, paid defendant his charges of $173.61, received a receipt therefor, and requested a copy of the bill of lading. They were told that it would be mailed to them but this was not done and they had no knowledge as to its contents. The evidence was that the son had no authority to make any agreement for them and that they did not believe that he had affixed his name to anything more than a receipt which evidenced delivery of the goods. Plaintiffs denied that they had authorized the stoppage of the goods in transit or given any directions other than for their transportation directly to Los Angeles. There was evidence that it was defendant’s custom to bring small loads of goods to his dock in San Francisco and to unload them there for the purpose of transfer to a larger van, thus combining the shipments of several owners into a single load for a long haul. This was done with the goods of plaintiffs. The dock was destroyed by fire, the cause of which was undisclosed, and plaintiffs’ goods were thereby lost.

Defendant, who is appearing in propria persona, lists sixty-five points of law or fact which, when assembled, constitute his argument that plaintiffs entered into a special contract for the shipment of their goods and are bound by the limitation of liability therein declared. He contends that the court should have held plaintiffs to the agreement on the theory that their son had authority to make it or upon the grounds of ratification and estoppel. There was no evidence that the son had authority to act for plaintiffs or that they held him out as their agent. The uncontroverted evidence was that

There are no questions of law in the case which have not been decided contrary to appellant’s contentions. Unless limited by the special contract, his liability was that of an insurer. (American Fruit Distributors v. Hines (1921), 55 Cal.App. 377 , 385 [ 203 P. 821 ].) It was held in McQueen v. Tyler (1943), 61 Cal.App.2d 263 [ 142 P.2d 466 ], that a contract purporting to limit the liability of a carrier is not binding upon the shipper unless it is entered into freely and fairly, citing Donlon Bros. v. Southern Pacific Co. (1907), 151 Cal. 763 [ 91 P. 603 , 12 Ann.Gas. 1118, 11 L.RA.N.S. 811 ]. Although the shipper there had signed a freight bill which contained a limitation of liability similar to the one here involved, a finding of the jury that it did not constitute a contract fairly entered into by the parties limiting defendant’s liability was held to be sustained by evidence that it was signed by the shipper upon a representation that it was an authorization to take the goods and without reading the paper and without knowledge that it contained a provision purporting to limit the liability of the carrier. Section 2176 of the Civil Code provides that the acceptance of a bill of lading by a consignor with knowledge of its terms constitutes an assent to a limitation of liability as to property carried in packages, trunks or boxes when the value is not stated, but that the consignor’s consent to any other modification of the carrier’s obligation contained in such instrument can be manifested only by his signature of the same. The court found, upon sufficient evidence, that plaintiffs did not accept a bill of lading and that they did not execute one. The provisions of section 2176, supra, are therefore not available to defendant as a ground for limitation of his liability.

Defendant makes the further argument that the finding that the goods were worth $1,950 results in his having agreed to ship goods of that value at a rate applicable to goods of far less value, that this would have amounted to giving • plaintiffs a preferential rate, which the law does not allow, and that out of these facts there arose an implied agreement limiting the value of the goods so as to conform to the rate charged. Plaintiffs had no knowledge that they were receiving any preference. They were not shown to have been unwilling to pay a higher rate if it had been charged by defendant, and they cannot be held responsible for defendant’s omissions or mistakes. The argument that as plaintiffs had the benefit of the lower rate they should bear the consequences which followed the acceptance of that rate is without force, inasmuch as there was no evidence that they had any knowledge that defendant’s charges were based upon a restricted liability.

There was ample evidence to sustain the finding as to the value of plaintiffs’ goods; indeed a finding of a considerably higher value would not have been unjustified.

The judgment is affirmed. The attempted appeal from the order denying motion for new trial is dismissed.

Desmond, P. J., and Wood (Parker), J., concurred.