Johnson v. Concord Railroad

Bellows, J.,

dissenting:—

I am compelled to dissent from my brethren for the reasons which I shall proceed to assign.

The ticket which the plaintiff purchased at Chicago entitled him to a passage from there to Boston over defendants’ road among others ; and as it was silent as to the time, mode, and manner of transporting him, and as there was no evidence of any special contract with the plaintiff on the subject, the whole must be loft to usage, in view of which the parties must be supposed to have contracted. So that the defendant must be deemed to have contracted to transport the plaintiff in such time, mode and manner as .accorded with the usage upon that route, as much as if it had been so expressed in the ticket.

By this usage, then, is to be determined when he shall be so trans *224 ported, whether by a continuous or interrupted passage, with or without pauses for rest or refreshment, or with or without the privilege of stopping on the way, over one or more trains, for business or rest; and also the kind of seat or car he shall occupy.

On these and other points, in the absence of express stipulations, the meaning of the contract is fixed by the usage, if any exist. 2 Starkie Evi. 453; 2 Kent’s Com. 759 — *566; Story’s Conflict of Laws, 225, 233; Loring v. Gunning, 5 Pick. 15 ; The Schooner Reeside, 2 Sumner’s C. C. R. 567; Angell on Cor. sec. 299; Swamscott v. Partridge, 25 N. H. 376, and cases.

Accordingly it is held, that, if the usual place of alighting from a coach, is at the inn yard, the passengers cannot be compelled to get out at the inn gate, even. Dudley v. Smith, 1 Camp. 167; And if the custom is to carry the passengers to their own homes or lodgings in a particular place, that must be conformed to. Story on Bail. sec. 608; Angell on Car. p. 508, and cases; 5 Petersdorf Abr. Carriers, p. 48.

So they are bound to allow the usual intervals for refreshments; and they cannot, at their caprice, vary or annul their accommodations ; for every passenger is understood to contract for the usual reasonable accommodations. Story on Bail. sec. 597, Angell on Car. 508, where it is said that this usage may be the veiy reason for preferring that particular conveyance to the less accommodating arrangements of another line.

So, where an express company is accustomed to deliver packages at the places of business, or houses of the consignees, in a particular place or city, this must be l’egarded as part of the contract; and the carrier’s responsibility will continue until such delivery. Redfield on Railways, p. 249.

So, if it be the usage to deliver ata certain depot in the business centre of a large city, the passenger’s ticket will, I apprehend, entitle him to be transported to that depot, and the obligation of the railroad will not be discharged by leaving him at a station substantially short of that point, although within the limits of that city. This, indeed, would be within the rule applied to stage coaches before cited.

The usage, however, which is to govern must be so long and so well established as to become known, so that the parties may reasonably bo supposed to contract in reference to it. Farnsworth v. Chase, 19 N. H. 539, where the cases are collected and examined; and see Gibson v. Culver, 17 Wend. 311 , 312.

In Foye v. Leighton, 22 N. H. 76, it is said that the usage must be so long continued, so well settled, and so uniformly acted upon, as to raise a fair presumption that it is known to both contracting parties, and that they contracted in reference to it and in conformity with it.

In the case before us the jury might have found a usage to allow the passenger to stop on the way, over one or more trains, or even for weeks or months, and if so, that the contract was in reference to it, and in fact incorporated that privilege into it.

Independent of the by-law, the jury might clearly so have found it, *225 and down to the time of the sale of the ticket in question, that is, Oct. 17th, 1860.

So I think the jury might have found such a usage existing Oct. 24, 1859, the day the by-law was made; and the proof tended to show that the usage continued after that the same as before, until the plaintiff was put off the defendants’ cars.

Unless this usage, then, was changed by a by-law not communicated to the plaintiff, nor to the office where he purchased his ticket under defendants’ authority, or posted therein, or noted upon the ticket, the verdict must be set aside because it was directed by the judge.

This raises the naked question whether a party contracting with a railroad for a passenger ticket is bound by a change in a usage before established, made by a by-law not communicated to him, not notified at the office authorized to sell tickets, and where plaintiff bought it, or notified on the ticket itself; or, in other words, whether the railroad is bound to give notice of such change in some way, or whether the passenger must take notice of it at his peril, or is at least bound to inquire.

And, in this aspect of the case, it is immaterial whether the ticket was purchased one day, or one year, after the by-law in question ; because, if proper notice of it was not given, it could avail nothing, unless it was the duty of the passenger to inquire. Nor could the promulgation of the by-law to a portion of the offices authorized to sell tickets, affect the case unless of such character as to charge the plaintiff with notice.

The question, then, really is, whether an established usage may be abrogated by a by-law which has never been notified to the parties to be affected by it, or so far abrogated as to be inoperative if the passenger fails to make inquiries upon the point; or, in other words, is the carrier relieved from the obligation to give notice of such change unless the passe'nger make inquiries”?

After a careful search, I am able to find no authority for such a doctrine, and I know of no principle that would give such effect to a bylaw of a corporation not promulgated, any more than to a simple memorandum of an ordinary carrier which had never left his desk.

A usage once established must be deemed to exist until the contrary is made to appear, and if the rule or usage is changed by the carrier, he must give notice of it to all concerned.

This, I think, is the rule applicable both to carriers of goods and passengers ; and it is of universal application, unless, perhaps, in respect to changes which do not affect the interest or convenience of the passenger or consignor.

But when a rule affecting the substance of the contract and which has been long established, is changed by the carrier, common fairness requires that the carrier should use all reasonable means to give notice, by informing its’agents, posting notices along the line, and at least in all the places where its tickets are to be sold, by publication in newspapers, and also, I think, by noting such change upon the ticket itself; and such, in fact, is the prevailing usage among carriers — a usage so universal as to furnish a strong argument for the position that the car *226 rier is bound legally to give notice of such changes; and so I think are the authorities.

Accordingly it has been held that instructions to the captain of a steamboat accustomed to carry passengers and goods, wares and merchandise, not to carry money, will not avail as a defense, unless such instructions were published or brought home to the knowledge of the shipper; upon the ground that without such notice the master is presumed to have the zisucd authority of a master of a general vessel; Allen v. Sewall, 2 Wend. 327 ; the idea being, that, prinia facie, the carrying of money was within the scope of such employmeiit, and that the owners were liable unless notices were given to the contrary.

The same doctrine was applied in the case of money carried by a stage driver; holding that the proprietor was responsible unless the plaintiff had notice that the driver carried such packages on his own account. Bean v. Sturtevant, 8 N. H. 146.

So, in Mayall v. Boston & Maine Railroad, 19 N. H. 122, held that defendants were liable for the loss of a package sent by the passenger train, notwithstanding they had given instructions not to carry them by such train on the proprietor’s account, but on account of the person undertaking to carry them ; unless such instructions were known to the plaintiff or to the public generally, see p. 126, citing Allen v. Sewall ; and Gilchrist, C. J., says no private instructions or agreements between the corporation and their servants, not published to the world at large, nor communicated to the plaintiff, could affect his right to recover.

A by-law of a railway company under the provisions of a special act, and which purports to limit their liability for loss in certain cases, will not bind the customer, unless there be evidence that he had notice thereof; Ch. on Contracts, 491-*424, citing Great Western Railway Co. v. Goodman, 11 Law & Eq. 546, where there was a by-law limiting the amount of baggage for first and second class passengers, but providing that the company would not be responsible for the same unless booked and paid for accordingly: Held, as it would seem, that the company would be liable unless the knowledge of this by-law was brought home to the plaintiff.

So, in Chitty on Con. 492 — *420, it is said to be now perfectly well understood, that if a parcel be delivered to a carrier to be carried, it is his duty to ask such questions as may be necessary, and if he do not, and there be no fraud to give the parcel a false complexion, he is bound to carry it as it is. So is Walker v. Jackson, 10 M. & W. 169, where plaintiff went upon the defendant’s ferry boat with a phaeton and a box of jewelry under the seat, and it was injured; -the defendant objected that the plaintiff did not disclose the jewelry. But the court held that it was perfectly well understood, that, if anything is delivered to a person to be carried, it is the duty of the carrier to ask such questions as may be necessary ; and if he do not he must carry it as it is, unless there be fraud.

So in Jordan v. Fall River Railroad, 5 Cush. 74 , it was held that - a passenger is not bound to give notice of the contents of his trunk un *227 less inquired of. So is Phillips v. Earle & al., 8 Pick. 184 , the court, Parker, C. J., saying that the information was not necessary, no notice limiting the liability having been given.

Upon the same principle the passenger is not bound to inquire if the carrier has changed his rules ; but it is for the carrier to give the passenger notice of it, or he has a right to consider the old rules in force. If no questions are asked and no fraud, and no notice limiting his liability, the carrier will be liable, for it is his duty to ask the necessary questions.

In England and some of the States of this Union, it has been held that a carrier might qualify his common law liability for goods, by a notice to that effect — as by requiring the value of goods of a certain description to be stated, and beyond a certain amount, to be paid for, or else that the carrier would not be liable ; but it has always been held that the notice must be brought home to the consignor; and that taking a newspaper with such notice is not enough, without showing that it was read by him. Ch. on Con. 499, 500, *429, and note of American cases; Rowley v. Howe, 3 Bing. 2. The power to make these qualifications as to certain things, such as money, jewelry, securities, &c., is recognized by act of Geo. 4, and Will. 4, ch. 168, and provision made for the notice ; but, in respect to all other kinds of goods, the power thus to limit the liability is denied. In Moses v. B. & M. Railroad, 24 N. H. 71, it is held- that a .carrier cannot by a general notice discharge himself from his legal liability to answer for goods, but at the same time, Perley, J., says that, when the carrier gave notice that he would not be liable for cash unless he had notice, and was paid in proportion, he hardly claimed anything more than the fair application of the rule ; see p. 86.

These decisions are in point, as showing that, when the obligation or duty at common law is attempted to be changed, the carrier must give notice, not that the consignor must inquire.

The extent of a carrier’s obligation to receive and carry goods, that is, as to the kinds he will carry, is determined by what he holds himself, out as ready to do, or by his usage ; but this he cannot change at pleasure without notice ; else a person may incur expense in sending goods to his office oj:- depot for carriage, and find a new rule established without notice, which compels him to seek other transportation. This cannot be the law ; on the contrary, the.carrier is bound to cany what he professes to carry, or pay damages. Johnson v. Midland Railway Co., 4 Exch. 367.

Where a railroad company undertook to carry a passenger from Saratoga Springs to Albany, and a trunk was lost on a part of the way beyond the limits of their own road, which terminated at Schenectady, held that defendants were liable, and that if they designed to limit their liability to their own road, they should have given notice. Ward v. S. & S. Railroad, 19 Wend. 537 .

In Brooke v. Pickwick, 4 Bing. 218, Best, C. J., says, that if coach proprietors wish honestly to limit their responsibilities, they ought to announce their terms to every individual who applies at their office, *228 and at the same time to place in his hands a printed paper specifying the precise "extent of their engagement. If they omit to do this, they attz-aet customers under the confidence inspiz-ed by the extensive liability which the common law imposes on carriers, and then endeavor to elude that liability, by some limitation which they have not been at the pains to make known to. the individual who has trusted them.” This is fully recognized in Hollister v. Nowlen, 19 Wend. 234 . In the forzner case, a notice was put up in the office limiting the liability to £5, unless the parcels were booked and paid for.

This shows clearly that, where an attempt is made to vary the previous terms, the carrier should give notice, and unless he does, the customer has a right to assume that they are not altered. As to what shall constitute notice, see Angell on Car. sec. 248-250.

In Walker v. Jackson, 10 M. & W. 161, 172, which was a suit against a ferz-yman for injury to a box of jewelry in plaintiff’s phaeton, while being landed from defendant’s ferry-boat, it was a question whether it was part of the contract, that defendant should land carz-iages. To this plaintiff showed that such was the usage at that ferry, and obtained a verdict, and, on motion for a new trial, the court held that thez-e was sufficient evidence of the usage, and denied the motion.

To meet this evidence on the trial, defendant offered a placard hung up.on each side of the covered gate by which foot passengers entered the slip to go on board, announcing the rates of toll, azzd also that the pz-opz-ietors did not undertake to load or discharge horses, carnages, &c., and "that they would not in any wise be responsible for any loss thereof or damage thereunto.” It appeai-ed, however, that the plaintiff went dowzz to the boat by another entrance than that where the notices were posted, and the court i-ejected the evidence; and, on the motion for a new trial, the whole court held it inadmissible, as there was no evidence tending to prove that plaintiff had seen the notices — such as having taken a paper containing it, or visiting a room containing it, and that it was of no avail that otlzcr persons had seen them.

Here there was a case of an attempt to control the effect of usage by notices not brought to plaintiff’s knowledge ; and this is precisely the case before us, as there is evidence tending to prove a usage, which, as the verdict was directed, must, for the purposes of this regardbe regarded as established. The case of Walker v. Jackson is exactly in point as it seems to zne. It also decides that whether tlze defendant was to land cai-riages or not must depend- upon the proof before imjury implied frozn usage or otherwise; but could not be infen-ed simthe simple fact that defendant was a ferryman. Ferrymen carriers. Angell riers. Angelí on Car. 182, and cases cited. Story on Bail. sec. 496.

The cases of carriers that cari-iers will not be liable for un&c., unless notified and paid accordingly, seem to be in point. There, if they make sueh a rule, as they certainly ma.y in England, and many of the American States, and even in New Hampshire, it would seem from Moses v. Railroad, 24 N. H. also 2 (see also.2 Greenl. Evi. sec. 215,) it will still avail nothing without notice to the owners of the goods. The *229 carrier is to give tbe notice, not the owner, and if no notice is given he is not bound to inquire.

Where a coach proprietor posted a notice that he would not be liable for baggage unless paid for and put on to the way bill, said notice must be brought home to the plaintiff. Bean v. Green & al., 3 Fairfield 422. The burthen of proof is on the carrier to show notice. 2 Greenl. Evi. sec. 216.

So, in the case of a partnership, if an ostensible or known member of a firm retires from it, he will still remain liable for all the debts and contracts of the firm, as to all persons who have previously dealt with the firm and have no notice of his retirement. Story on Partnership, sec. 160. This is put upon the ground that where one of two innocent persons must suffer from giving credit, he who has misled the confidence of the other, either by his misrepresentation or his negligence, ought to suffer instead of the other. In fact such person by neglecting to give notice continues to hold himself out as a partner.

Just,so as to the common carrier; having once established rules or usages he must still be regarded as holding out to the public that such rules or usages exist, until he gives notice to the contrary to them who deal with him. The neglect to give such notice is a continual representation that such rales and usages exist.

As to an inn-keeper, if the goods of a guest by his request are left in the public room of an inn, still the inn-keeper is liable for their loss, unless he give the guest notice that he will not be responsible. Packard v. Northcraft, 2 Met., Ky. 439; 20 U. S. Digest, 139, sec. 215.

So a usage to deposit money and other valuables at the bar in a safe, will not affect a guest who does not so leave them, unless he had actual notice of such usage, and this is a question of fact. Berkshire Woolen Co. v. Proctor, 7 Cush. 417 .

Again, notwithstanding the vote of the directors in October, 1859, there was evidence from which the jury might have found that the vote was disregarded, and the old usage still continued; see plaintiflf’s own testimony, and the testimony of Hastings, Thayer, Sargent and Hall, and perhaps others. If the usage still continued, then plaintiff had the right to stop on the way.

In Great Western Railway Co. v. Goodman, 11 Law & Eq. 546, there was no evidence that the by-law was carried into effect, and the court say it seems to have been treated as a dead letter, and it was proper to have left it to the jury.

Besides, in the case before us, the by-law does not contemplate that it shall be at once carried into effect, but as soon as practicable, and I think the jury might legally have found that the former usage still continued. If the by-law was laid out of the case as it must be, the jury might have found, and would have found, such usage, down to the time .plaintiff bought his ticket.

Again, if no usage had been shown at all, the legal effect of the contract must have been to carry the passenger in a reasonable time, allow *230 ing also reasonable stops on the way, to be determined as a matter of fact by the jury.

I am aware that there is some ground for an inference that when the plaintiff purchased his ticket he held himself out as going to Boston, when in fact he designed only to go to Manchester, and that he did so to induce the ticket master to sell him the ticket at less than the usual price to Manchester. If this were so, it would have been a fraud on the defendants, and they would have had the right to demand the customary fare to Manchester; but this fact was not passed upon, and therefore must be laid out of the case.

Upon these grounds I am compelled ’to dissent from the opinion of the majority of my brethren. •