# Bank of Kentucky v. Adams Express Company Planters' National Bank of Louisville

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United States Supreme Court
93 U.S. 174
Bank of Kentucky v. Adams Express Company Planters' National Bank of Louisville
ERROR to the Circuit Court of the United States for the District of Kentucky.
These are actions by the plaintiffs in error to recover the value of certain packages containing money, which, on their transportation over the Louisville and Nashville Railroad in charge of a messenger of the defendant in error, were destroyed by fire. There was a verdict and judgment in each case for the defendant. The plaintiffs sued out these writs of error. The facts are set forth in the opinion of the court. So much of the instructions of the court below as are referred to but not incorporated in the opinion are as follows:--
'If the jury believe that the teller of the Louisiana National Bank presented the bill of lading to the agent of the express company for his signature, with the blanks filled, and at such time delivered to the agent the package of money, without disclosing who was the owner of it, but addressed to the plaintiff at Louisville that the bill of lading was signed and redelivered to the teller, and forwarded to the plaintiff at Louisville, then the bill of lading thus signed constitutes the contract, and all the exceptions in it are a part of the contract, no matter whether each or all of them were known to the Louisiana National Bank or not; and the plaintiff is bound by the contract, whether it expressly authorized the Louisiana National Bank to make it or not. The evidence tending to show that the bill of lading was not read at the time of the signing, and that nothing was said about the exceptions contained in it, is immaterial.'
'It is claimed by the plaintiff that the defendant was wanting in care in the use of the safe or box in which the package was at the time of the loss. If there was any such want of reasonable care in this particular, the defendant is undoubtedly liable; but if the safe was such as prudent persons engaged in like employment generally use for the purpose, there was no want of care, and the defendant is not responsible for want of care in this particular.'
Mr. John M. Harlan for the plaintiffs in error.
While the right of a common carrier to contract for a reason able limitation of his responsibility cannot be disputed, it is equally clear that such responsibility cannot be restricted or qualified, unless he 'expressly stipulates for the restriction and qualification.' York Company v. Central R. R., 3 Wall. 107. The exemption should be specific and certain, leaving no room for controversy. New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 383; Railroad Co. v. Manufacturing Co., 16 Wall. 329.
A common carrier does not cease to be such because he has limited his liability by a special contract. Davidson v. Graham, 2 Ohio St. 140; Railroad Company v. Lockwood, 17 Wall. 357; Hooper v. Wells, Fargo, & Co., 27 Cal. 11; Christenson v. Am. Ex. Co., 15 Minn. 270. Nor will he be permitted to stipulate for immunity for his own negligence, or that of his servants or agents, even though he can exercise no control over their actions. Ashmore v. Penn. S. T. Co., 4 Dutch. 180; Railroad Company v. Lockwood, supra; Christenson v. Am. Ex. Co., supra; Welch v. Boston & Albany R. R. Co., 15 Am. Law Reg., March, 1876, No. 3, p. 140.
The Louisville and Nashville Railroad Company was, in contemplation of law, for the purposes of transportation, the agent of the defendant in error. The latter is, therefore, responsible for the negligence of the former. Hooper v. Wells, Fargo, & Co., supra; Christenson v. Am. Ex. Co., supra; Buckland v. Adams Ex. Co., 97 Mass. 124; Redfield on Carriers, sect. 56, note 27.
Mr. G. C. Wharton for the defendant in error.
The right of a common carrier to limit by special contract his common-law liability is fully settled. Express Company v. Caldwell, 21 Wall. 267; York Company v. Central Railroad, 3 id. 107; Railroad Company v. Lockwood, 17 id. 357; New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344.
The bill of lading was evidence of the contract between the parties. The plaintiffs in error accepted it without objection. They are therefore bound by the conditions therein expressed. Brooman v. Am. Ex. Co., 21 Wis. 152; Grace v. Adams Ex. Co. 100 Mass. 505; York Company v. Central Railroad, supra; Railroad Company v. Androscoggin Mills, 22 Wall. 595; Meyer, Agent, v. Harden's Ex. Co., 24 How. Pr. 290; Railroad Company v. F. & M. Bank, 20 Wis. 123; Parsons v. Monteath and Hazard, 13 Barb. 353; Dorr v. Steam Navigation Company, 1 Kern. 485; Wells v. New York Central Railroad Company, 24 N. Y. 180.
Although the defendant in error remains a common carrier, its liability was limited to that of an ordinary bailee for hire, in reference to the particular limitations in the contract. It is not, therefore, responsible for negligence, or the want of ordinary care of persons over whom it had no control. Railroad Company v. Lockwood, supra; York Company v. Central Railroad, supra; New Jersey Steam Navigation Company v. Merchants' Bank, supra; Dorr v. Steam Navigation Company, supra; Meyer, Agent, v. Harden's Ex. Co., supra.
If the railroad or any of its employes were negligent, the plaintiffs in error have their remedy against it. New Jersey Steam Navigation Company v. Merchants' Bank, supra.
Neither the relation of master and servant nor that of principal and agent existed between the express messenger and the railroad company. Union Pacific Railroad v. Nickols, 8 Kans. 505; Yeomans v. The Centra Casta Steam Navigation Company, 44 Cal. 71.
The railroad company not being the servant of the defendant in error, nor under its control, the doctrine of respondeat superior does not apply. Blake v. Ferris, 5 N. Y. 48.
MR. JUSTICE STRONG delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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