#### Grogan & Merz *versus*Adams Express Company.

1. A presumption of negligence on part of an express company arises, wliere goods shipped by said eompany0are lost in its hands while in course of transportation.

2. An express company cannot, by special contract or special acceptance, limit its liability for loss of goods resulting from the negligence of the company or its servants.

October 30th, 1887.

Before Gordon, Trttnkey, Sterrett, Green, and Clark, JJ. Mercur, C. J. and Paxson, J., absent.

Error to the Court of Common Pleas No. 2 of *Allegheny county:*of October Term, 1886, No. 111.

This was an action of trespass on the case by James C. Grogan and A. Merz, partners as Grogan and Merz, against the Adams Express Company. .

The plaintiffs in their declaration set out that the defendant is a common carrier of goods for hire between the city of Pittsburgh and Springfield, Massachusetts; that on December 20th, 1883, plaintiffs delivered to defendant and defendant received a certain article of jewelry of the value of one hundred and ninety-eight dollars ($198.00), to be safely and securely carried by said defendant to tbe city of Springfield; there to be delivered for said plaintiffs. Yet said defendant not regarding its duty as common carrier, but contriving, etc., did not, nor would safely and securely carry and deliver the same,, but behaved so carelessly and negligently in the premises that by its carelessness, etc., the jewelry aforesaid was wholly lost to plaintiffs to the damage of plaintiffs, etc.

The defendant pleaded “Not guilty, and the special facts set forth in tbe affidavits of defence, with leave to add, alter, or amend, at bar.”

The affidavit of defence first tenders to plaintiffs, judgment for $50 ; admits the loss of the goods in transportation and the value, to wit, $198; and sets up a contract between the parties alleged to be contained in the receipt given to plaintiffs by defendant.

After a rule had been taken for judgment for want of sufficient affidavit of defence, a supplemental affidavit was filed, alleging a failure on the part of plaintiffs to give notice in writing to defendant within thirty days of the loss; and alleging that they were bound so to do under another contract in the receipt, and withdrawing the tender already made.

*524The following are the facts of the case as they appeared on the trial before Ewing, P. J.

On December 20th, 1883, the plaintiffs, who were engaged, in business as jewelers, in the city of Pittsburgh, delivered to the defendant company, for transportation, a small box, containing a lace pin made of gold and diamonds, of the value of one hundred and ninety-eight dollars. The box was securely packed and plainly addressed to the person for whom it was intended, in the city of Springfield, Massachusetts. At the time of shipment, the plaintiffs paid all charges asked by the defendant company, for transporting the box to its destination, and received a receipt therefor, from the company, in their receipt book, which was furnished to them by the Express Company; each page of the book is headed “ Adams Express Company, Domestic Bill of Lading, Received of Grogan and Merz, the following article, subject to the contract printed below.” Then follows ten blank lines, for date of shipment, value, number of packages, name of consignee, destination, and name of receiver.

The receipt for the package involved in this case is the first one upon the page, and the entries are as follows : “December 20th, 1 package, Miss B. T. Tiffany, 297 Union street, Springfield, Massachusetts, 25 cents paid, J. G. Storen,” the receipt also shows the figures ^-| in purple ink, interlined after the date, which Mr. Post, the clerk of the Express Company, says are his handwriting, and signify the date of notice of loss, hereafter mentioned. Then follows nine other receipts for packages shipped at various later dates, and at the bottom of the page in small type, the following words appear: “which it is mutually agreed is to be forwarded to our agency, nearest or most convenient to destination only, and there delivered to other parties, to complete the transportation. It is part of the consideration of this contract, and it is 'agreed, that said Express Company are forwarders only, and are not to be held the holder hereof demand payment ^ _ sum of fifty dollars, at which the article forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured by them and so specified in this receipt, which insurance shall constitute the limit of the liability of the Adams Express CompanyX . In no event shall the Adams Express Company be liable for any loss or damage, unless the claim therefor shall be presented to them, in writing, at this office, within thirty days after this date, in a statement to which this receipt shall loe annexed.” liable or responsible, etc, event shall

There was no value marked in the receipt book, and Mr. Sample, the plaintiffs’ agent who shipped it, swears positively *525that none was asked. MV. Stover, the defendants’ agent who received the package, says that lie has no recollection of this package; but that it was his general custom, and a rule of the company, to ask its value at the time of shipment. It is admitted that the value of the package was $198. On December 29th, 1883, nine days after shipment, the plaintiffs, hearing from Springfield of the non-arrival of the package, sent Mr. Sample with the receipt to the Express Company’s office, in Pittsburgh, and he called the matter to the attention of Mr. Post, the company’s agent in such matters, to the fact, and Mr. Post thereupon wrote the figures referred to, upon the book. No other or further notice was, at that time, demanded by the Express Company, nor, in fact, claimed at. any other time, until after plaintiffs brought their action, and had served a rule on the defendant, for judgment, for want of a sufficient affidavit of defence, when, in a supplemental affidavit of defe.nce, the Express Company withdrew the tender of $50 made in their original affidavit of defence, and set up the clause printed on the receipt, requiring notice in writing, within thirty days, with the receipts annexed. It was admitted bj^ the witnesses of the Express Company, that the company acted upon the notice thus given them, and traced the package as far as Springfield, where it was lost. No explanation was offered by the company as to how it was lost, or what became of it.

The plaintiffs presented the following points:

1. That the plaintiffs having shown and the defendant (having) admitted the loss of the goods, while in the defendant’s hands, in course of transportation, a presumption of negligence arises; and the alleged condition limiting the defendant’s liability to $50, is no defence in the absence of any evidence to show that the loss occurred without the fault of defendant.

Answer refused. (First assignment of error.)

2. That if the jury believe from the evidence that the plaintiffs on December 29th, 1883, at the Pittsburgh office of the defendant, notified the defendant of the loss, and gave to it full information as to the package, time of shipment, its destination, and its non-delivery, at the same time producing the receipt book, and calling defendant’s attention to these particulars by the entry of the package therein ; and that defendant did not request other and further proof, then the plaintiffs have complied with said alleged condition as to notice, and so far as said alleged condition is concerned, the plaintiffs are entitled to recover.

Answer refused: under the testimony the above would not be sufficient to constitute a waiver of the condition. (Second assignment of error.)

The defendant presented the following points:

*526That in no event can the defendant company be held to a greater sum than fifty dollars, as in said contract provided. Affirmed. (Fourth assignment of error.)

The defendant company could limit its liability by special contract. Affirmed. (Fifth assignment of error.)

In the general charge', the court instructed the jury *inter alia*as follows:

In addition, Mr. Grogan, one of the firm, admits that he saw this book frequently, and knew what was in it, and the presumptions are that he saw it, and knew what was in it. Mr. Grogan also knew that there was a higher charge for articles of a higher value than $100, than for an article worth $50. Now, if that be the method of business between that firm and this company, and those the circumstances under which this receipt was given, unless something was said to the contrary, I instruct you that this shipment was under the contract. It was equivalent to Grogan & Merz saying, we give you this package to be shipped under the conditions of the contract, and if it was worth more than $50, it was their business to have the company informed of that fact; there was a greater risk then to the company, a'nd a greater charge for carrying. While it is for you to determine the facts, if I understand the testimony that is uncontradicted, and that being the fact, it makes this the contract under which the defendant incurred the liability, and have rights. Now, there are only two stipulations of this contract that become important in this case. The first is in relation to this limitation of $50. The contract reads, among other things: Nor in any event shall the holder thereof demand beyond $50 ; at which the article forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured. ■ That, we instruct you is a valuation, and if the circumstances under which the goods were delivered be as testified to, and as I have stated, then'it was a binding contract, .a determination on the part of these parties as to the value of that package, and governs this transaction, unless the company took and appropriated it to its own use when it would have to pay the whole of it......But following the ruling of the Supreme Court of the United States, in a very recent case, I instruct you that this is a limitation of the liability, a valuation of the package that in this contest is conclusive, even though the loss occurred by the negligence of the defendant. (Sixth assignment of error.)

Verdict for the plaintiff in the sum of $56.18, and judgment thereon, whereupon the plaintiff took this writ, and filed *inter alia*the above assignments of error.

*William M. Blair.*

— That a common carrier cannot limit his *527liability in a case where the loss occurs through his negligence by a notice contained in a receipt, such as was given in this case, is a proposition well established in the law of Pennsylvania; Bullman *v.*Shouse, 5 Rawle, 179; Goldey *v.*R. R. Co., 6 Cary, 242; American Ex. Co. *v.*Sands, 5 P. F. S., 140; Faruham *v.*R. R. Co., 5 Id., 53 ; R. R. Co. *v.*Butler, 7 Id., 335; P. R. R. *v.*Henderson, 1 Id., 315; Empire Co. *v.*Warmcastle, 13 Id., 14; Colton *v.*C. & P. R. R., 17 Id., 211; Patterson *v.*Clyde, 17 Id., 500.

The court instructed the jury that it was the plaintiff’s business to inform the express company of the value of the goods, when it has been expressly declared by this court, more than once, that it is not the duty of the shipper to disclose the value of the goods unless he is asked; Relf *v.*Rupp, 3 W. & S., 26; C. & A. R. R. *v.*Baldaux, 4 Harris, 67; Brown *v.*R. R., 2 Norris, 315.

The learned court below says, in his opinion, that he is following a recent decision in the Supreme Court of the United States — the case referred to is, Hart *v.*Penn. R. R., 112 U. S., 331, but a single glance at that case will show its difference and inapplicability to the present case.

*T. S. Parker*for defendant in error.

— That the *onus*of establishing negligence should rest upon the plaintiff is a proper condition of the power to limit liability, by a special contract, and is, I think, established authority; Harris *v.*Packwood, 3 Taunton, 264; Marsh *v.*Horne, 5 Barn. & Cress., 322; Marsh *v.*Stude, 9 Carr & Payne, 380; Clark & Co. *v.*Spencer, 10 Wall., 335; Goldey *v.*Penna. R. R. Co., 6 Casey, 246; Patterson *v.*Clyde, 17 P. F. S., 500.

That the court charged the jury correctly as to the “ thirty day notice,” and that the same is *reasonable*and proper, see Weir *v.*Adams Ex. Co., 5 Phila., 355; Express Co. *v.*Caldwell, 21 Wall., 264.

The receipt though signed only by the defendants, was accepted at the time, and given in evidence at the trial, by the plaintiff, is the best, if not the only evidence of the agreement under which the goods were delivered, of the duty of defendants to carry them safely, and of the liability of the plaintiffs for freight. The plaintiff must be presumed to have known what it contained, and was guilty of a wilful omission if he did not. The clause in question is therefore part of the contract of affreightment, and binding on the plaintiff, if valid in law ; Squire *v.*New York Central R. R. Co., 98 Mass., 239; Hopkins *v.*Wescott, 6 Blatch., 64; Belger *v.*Dinsmore, 51 N. Y., 166; Oppenheimer *v.*United States Ex. Co., 69 Ill., 62; Maginn *v.*Dinsmore, 56 N. Y., 168, 62, 35, 70; Earnest *v.*Express Co., 1 *528Woods, 573 ; Elkins *v.*Empire Transportation Co., 81* Pa. St. R., 315; South and North Ala. R. R. Co. *v.*Heinlein, 52 Ala., 606; Musser *v.*Holland, 17 Blatch., 412; Harvey *v.*Terre Haute R. R. Co., 74 Mo., 528; Graves *v.*Lake Shore R. R. Co., 137 Mass., 33.

November 17th, 1886.

Mr. 'Justice Green

delivered the opinion of the court,

In the case of Farnham *v.*The Camden and Amboy Railroad Company, this court decided that a common carrier might, by a special contract, and perhaps by notice, limit his liability for loss or injury to goods carried by him, as to every' cause of injury except that arising from negligence. In that case, there was a special contract signed b.y the receiving clerk of the carrier company, expressed in the receipt given to the shipper, limiting the responsibility of the carrier to $100 for every 100 lbs, freight, the shipper declining to pay for any higher risk. The goods were carried to their destination, unloaded upon the carrier’s wharf, and there destroyed by fire. Although the goods were still in the carrier’s custody at the time of the loss, it was held that unless it was proved-that the fire was the result of the carrier’s negligence, there was no liability beyond the amount limited in the receipt given by the carrier. But it was also held, that if there had been proof of such negligence, the limitation would not have restricted the carrier’s liability. Under the particular facts of the case, the common carrier, by force of the special contract, became a private carrier, or bailee, whose liability was to be judged by the terms of the contract. Not being an insurer therefore, as a common carrier, it was held that there was no liability beyond the amount stipulated in the bill of lading, except for negligence, and that the burden of proving the negligence rested upon the shipper; In determining that it was a case of special contract, much stress was laid upon the fact that the bills of lading, duly executed and signed by the agents of the defendants, containing the limitation, were delivered to the plaintiffs, accepted by them and remitted to their agent in New York, as his authority to receive the goods, and that “ these, therefore, were the terms on which the transporters shipped their goods, and on which they were received to be transported.” In determining the question of negligence, it was held that the proof of loss by an accidental fire was a sufficient accounting for the non-delivery of the goods, and that unless the shipper could prove, that the fire was the result of negligence there was no liability beyond the limited amount fixed by the contract.

In the case of the American Express Co. *v.*Sands, reported also in 5 P. F. S., at p. 140, the doctrine was repeated, that *529common carriers may limit their liability by a special contract, or special acceptance of the goods, and thus become subject to the laws of bailment only, but that there could be no limitation of liability where the loss or injury resulted from the negligence of the company or its servants. The article carried was a saw, and on its arrival at its destination it was cracked eight to ten inches. There was no evidence to show how this injury was sustained, and hence it was held there arose a presumption of negligence which it was the duty of the carrier to rebut, or be held liable for the full value of the saw, notwithstanding the limitation of $50 liability expressed in the freight receipt, given to the shipper. Thompson, J., said, “Had they been able to have shown a *prima facie*case of injury, without fault on their part, they would not have been liable beyond the limit fixed, unless the plaintiff could have established negligence against the company as to the manner of the injury; but their silence was reconcilable with nothing but negligence or wilfulness, either of which would be followed by liability to the full extent of the loss.” The’ doctrine of these two cases is precisely alike on the fundamental proposition that liability could be limited lw special contract, but not for negligence. In the one case the carrier escaped liability because he accounted for the destruction of the goods in a manner which did not impose liability without express proof of negligence. In the other case, the carrier was held liable because he did not account for the injury, and a presumption of .negligence arose which he did not rebut.

How is it in the case at bar ? We think it must be conceded that by the terms of the express receipt, signed by the company’s agent, and delivered to, and accepted by the plaintiffs, the article shipped was valued at fifty dollars, and the company limited its liability to that sum, and this limitation would be a protection against liability beyond that amount, except for negligence. It is a contract almost precisely similar to the one upon which we passed, in the case of the American Express Company *v.*Sands, *supra,*but is stronger than that in favor of the carrier, because it contains an express agreement that the article forwarded was valued at $50, which the receipt in the Sands case did not. But the express company in the present case failed to account for the non-delivery of the article, and hence a presumption of negligence arose, which they should have rebutted in order to escape liability, but they did. not do so. It was error, therefore, in the learned court below to refuse an affirmance of the plaintiff’s first point, which is a mere declaration of the ruling of this court in the Sands case.

In addition, however, to this, the learned court further charged the jury that the defendant could limit its own liability, *530even as against its own negligence, and had done so by tbe receipt given to the plaiutiffs when the goods were shipped.

This was done in obedience to a decision of the Supreme Court of the United States, in the case of Hart *v.*The Penn. R. R. Co., 112 U. S. Rep., 331. An examination of that case shows that such is the law as declared by that court, and if the decision were of binding authority upon us we would be obliged to follow it. But our own 'decisions for a long time have established the opposite doctrine, until it has become firmly fixed in our system of jurisprudence. We could not depart from it now without overruling them all, and we are not willing to do so. The authorities upon the general subject are very numerous and conflicting. But with us the rule has been uniform and we prefer to adhere to it. Entertaining these views, we reverse the case upon the first, fourth and sixth assignments of error. The fifth is not sustained, because as a general proposition the defendant’s third point is undoubtedly true. We say nothing as to the second and third assignments, because,as there must be another trial, the questions arising under them may come before us ünder a different aspect.

Judgment reversed, and a *venire de novo*awarded.