# Hooper v. Wells, Fargo & Co.

> California Supreme Court · July 1, 1864 · 27 Cal. 11

URL: https://www.frixlaw.com/law-library/cases/5435659

## Case

- **Full name:** GEORGE F. HOOPER v. WELLS, FARGO & CO.
- **Court:** California Supreme Court
- **Decided:** July 1, 1864
- **Citations:** 27 Cal. 11
- **Precedential status:** Published
- **Opinion:** Dissent by Sanderson
- **Judges:** Sanderson, Sawyer
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5435659

## Opinion text

Sanderson, C. J., dissenting.
Upon the,facts of this case, as detailed in the opinion of the Court delivered by Mr. Justice Sawyer, "the Court below instructed the jury, in substance, that if the defendants were an express company, publicly engaged in the transportation of freight from one place to another for hire, they were in law common carriers, and subject to all the responsibilities of common carriers, except so far as they may have lawfully modified them by agreement, and that their responsibilities were wholly unaffected by the fact that they used. other vehicles, vessels, or means of .conveyance than their own, for the purposes of such transportation. That, as common carriers, the defendants could, by contract, limit the liability imposed upon them by the common law, to a certain extent; but they could not, by such contract, relieve themselves from the exercise of ordinary care in the discharge of their duties; and if the treasure was lost through their negligence, or the negligence of any of their agents, they were responsible for the loss, notwithstanding any contract to the contrary. That if the defendants shipped the treasure on board the Ada Hancock, and there was an explosion, occasioned by the negligence of the persons in charge of her, by which it was lost, they were liable, for the reason that by so shipping the treasure, they made, so far as the test of their liability to the plaintiff is concerned, the Ada Hancock their vessel, and the persons in charge of her their agents, for the purpose of fulfilling the obligations of their contract with him, notwithstanding they may have had no authority in the management or control of the vessel, or those in charge of her.
The Court below did not undertake to construe the contract in cpiestion, or to determine whether by its terms the defendants had stipulated for exemption from liability for any loss *37 which might result from the negligence of their agents, or any portion of them ; but, assuming such to be the true meaning and intent of the contract, in effect charged the jury that the contract was void upon grounds of public policy so far as it attempted to protect the defendants against the negligence of their agents, whether such agents were in their immediate employment and directly under their supervision and absolute government, or were the parties in charge of the various public conveyances used by them in transporting the treasure in question, and not directly in their employment and in no respect under their control. Such is the theory upon which, as I understand the instructions, this case went to the jury.
The propositions contained in these instructions were duly excepted to by the defendants, and it is alleged that they are erroneous so far as they instruct the jury that the defendants could not, by contract, relieve themselves from liability for losses caused by the negligence of their agents, it being-claimed that a common carrier may, by express agreement; circumscribe or limit his common law liability so as to protect himself from the consequences of any act of negligence or wrong committed by any person or persons other than himself, notwithstanding such persons may be his agents, or, in other words, he may by express contract nullify the common law doctrine of respondeat superior; and that this was done in the present case by the terms of the receipt which was given by the defendants and accepted by the plaintiff.
It is insisted on the part of the plaintiff that the receipt for the treasure and the annexed conditions given by the defendants, and accepted by the plaintiff, does not establish a contract between them restricting the common law liability of the defendants, because it docs not appear to have been signed by the plaintiff, nor does it appear that he either read or was informed of its contents, or that he in any manner assented to its terms further than is implied by his acceptance and silence; and that, therefore, it, in contemplation of law, only amounts to a notice brought home to the plaintiff, to the effect that the defendants would not be responsible except as therein provided. *38 It is well settled that, if it is to be regarded as a notice merely, notwithstanding it was brought home to the knowledge of the plaintiff, it did not relieve the defendants from any responsibility imposed by the common law for a loss of the treasure occasioned by their negligence or the negligence of their agents. (Sayer v. The Portsmouth S. and I. and E. Railroad Co., 31 Maine, 228; Wild v. Pickford, 8 Mees, and Welsh, 443; Story on Bailments, 4th edition, §571.) But the weight of authority seems to be that a receipt delivered and received under like circumstances amounts to a contract. A similar paper was so regarded in Parsons v. Monteath, 13 Barb. 353 ; Moore v. Evans, 14 Barb. 524 , and in Holford v. Adams, 2 Duer, 480 ; and was expressly so decided in Dorr v. N. J. Steam Navigation Co., 1 Kernan, 485, and in Wells v. The New York Central R. R. Co., 24 N. Y. 183 . In the former case, the Court said: “ The exception to the common law liability being made in the bill of lading and delivered to the agent of the plaintiff, must be deemed to have been agreed upon by the parties;” and in the latter : “The word ‘agreed’ means the concurrence of two parties, and the act of acceptance binds the acceptor as fully as his hand and seal would. (Co. Litt. §217, note; 5 Hill, 258 , 259 ; 1 Seld. 229 ; 27 Barb. 140 , and cases cited.) The point is too well settled to admit of debate.”
It is also insisted on the part of the plaintiff that this contract when properly construed does- not exempt the defendants from the liability sought to be enforced in this action. The instrument was prepared by the defendants without previous consultation with the plaintiff, who had therefore no choice in the selection of the terms employed. And it is well settled that the language creating the exceptions from liability in such cases must be strictly construed against the party in whose favor they are made. The language was introduced by the defendants for their benefit, and if it is susceptible of a more or less extended meaning the rule of construction in such cases is to adopt that which is the least favorable to the party .who is to be benefited thereby. (Munn v. Baker, 3 Eng. Com. *39 Law, 339 ; Airey v. Merrill, 2 Curtis C. C. 8 ; Atiwood v. The Reliance Transportation Co., 9 Watts, 88 ; De Rothschild v. Royal Mail Steam Packet Co., 7 Exchequer, Welsly, Hurl and Cord, 734.)
The language to be construed is as follows: “ Received, etc., * * * which we agree to forward * * * and deliver. It is further agreed, and is a part of the consideration of this contract, that Wells, Fargo & Co. are not to be responsible, except as forwarders, nor for any loss or damage arising from the dangers of railroad, ocean, or river navigation, fire, etc., unless specially insured by them, and so specified in this receipt.”
It is insisted by defendants that, notwithstanding they were common carriers and received full compensation for the transportation of the treasure in question, their liability touching such transportation is reduced from that of common carriers to that of forwarding merchants by the foregoing language, or in other words that their liability ceased when the treasure was placed on board the stage coach at Los Angeles, en route for San Francisco by coach, steam tug and steamer, the same being the usual mode of public transportation between those places; and that thereafter the treasure was at the risk of the plaintiff until it reached the general agency of the defendants at San Francisco, where their responsibility again attached and continued until a delivery thereof to the address of the plaintiff.
This contract must be read by the light of surrounding circumstances as disclosed by the evidence in the case. The defendants were engaged in the express business; that is to say, in receiving, carrying and delivering, by sea or by land, treasure, goods and packages for hire, in the care of their own messengers, but in vessels, conveyances, steamers, boats and vehicles belonging to other parties, in no way connected or associated with the defendants in their express business, and ordinarily used by the public at large as the common and public mode of transportation and conveyance. In these vessels, etc., the defendants had no interest and no voice in their management, nor *40 any authority or control whatever over the persons in charge of them, and were as powerless for the purpose of preventing negligence on their part as the plaintiff himself or any other stranger. But in their capacity as common carriers the defendants were liable for any loss resulting from a defective construction of these public conveyances or a careless and negligent management of them by persons in charge of them. All these facts and circumstances were notorious and well known to plaintiff, who had had previous dealings with the defendants in the line of their business. Viewed in the light of these circumstances it is obvious upon a mere glance at the contents of the instrument that it was designed to place a restriction upon the common law liability of the defendants. And I think this has been done in language which every business man would find no difficulty in understanding. They agree to transport the treasure to Ban Francisco and deliver it to the address of the plaintiff, who, on his part, agrees to pay them the sum of eighty dollars and sixty-five cents, and in part consideration relieve them from all liability for any loss or damage for which common carriers are,' but mere forwarders of goods are not responsible. A forwarder is one whose business it is to receive and forward goods, by the usual modes of transportation, to their place of destination. He discharges himself from liability by showing that he has used ordinary diligence and prudence in forwarding the goods intrusted to his care by trustworthy and responsible parties engaged in the carrying business. His calling and the legal liabilities thereby imposed upon him are as well known' among business men as that of common carriers and the liabilities imposed upon them by the law of the land. I find no difficulty in understanding the terms of this contract, and have no doubt that they were fully understood by the plaintiff at the time he accepted it without a word of dissent.
Having disjDosed of the preliminary points made by the plaintiff, wTe now come to the main question involved in this case, and which, so far as I am advised, is presented for the first time in this State. Counsel for the defendants affirm the *41 broad proposition that a common carrier may by contract with the shipper protect himself against all liability for losses occasioned by the negligence, fraud, or felony of his agents or servants. That the defendants are common carriers, and that their common law liabilities are wholly unaffected by the fact that they use means of conveyance not belonging to them or under their control or management, are propositions not denied by them. They fully concede that, aside from the contract they would, under the law and the facts of this case, be liable for the loss of the treasure in question; but they insist that +1. y ~ie relieved from that liability by the express terms of the contract of shipment made with the plaintiff. On the part of the plaintiff it is contended that the contract in question is a contract by the defendants against actual negligence and fraud of themselves, their servants and agents, and therefore void upon grounds of public policy. Thus the question as to what extent a common carrier may, by express contract, restrict his common law liability, is clearly and fairly presented by the record. This question has been fully argued upon both sides with much learning and ability, and our task has been rendered comparatively easy by the industry and research of counsel.
That a common carrier may stipulate for exemption from liability for losses not resulting from any fault or negligence on his part, or on the part of his agents, notwithstanding much controversy heretofore, may now be regarded as well settled. By the common law he is absolutely liable for the safety of the goods intrusted to his care; and is responsible for inj uries or losses arising from the acts of others, without any neglect or fault on his part, except such as arise from the “acts of God, the public enemies, or the fault of the party complaining.” His liability -is of two kinds : one is the liability of a paid bailee, and is for losses resulting from neglect on his part, or on the part of his agents; the other is that of an insurer,, and is for losses resulting from accident or other unavoidable-causes, without any fault on his part or on the part of his agents. Against this latter liability it is now well settled, *42 both in England and America, that he may protect himself by contract with the shipper of the goods; for no principle of public policy can be contravened by a contract which merely exempts him from liability for losses which have not been occasioned by any neglect or fault on his part, or on the part of those for whose acts the law holds him responsible. Whether he may go beyond this is a mooted question, for it is claimed by the defendants that there are cases both in England and America which seem to sustain, to its full extent, the doctrine for which they contend.
Austin and another v. The Manchester, Sheffield, and Lincolnshire Railway Company, 70 Eng. Com. Law R. 453, was an action to recover damages for the loss of a horse which was killed while being conveyed on defendants’ railway. The horse was delivered to the railway company to be carried by them for hire subject to a note or ticket in the following words: “This ticket is issued subject to the owner’s undertaking to bear all the risk of injury by conveyance and other contingencies; and the owner is required to see to the efficiency of the carriage before he allows his horses or live stock to be placed therein; the charge being for the use of the railway, carriage and locomotive power only, the company will not be responsible for any alleged defects in their carriages or trucks, unless complaint .be made at the time of booking, or before the same leave the station; nor for any damages, however caused, to horses, cattle, or live stock of any description, travelling upon their railway or upon their vehicles.” And it was held that, giving to the words of the contract their most limited meaning, they must apply to all risks, of whatever kind and however arising, to be encountered in the course of the journey; and that, therefore, the company were not responsible for the loss of the horse which was occasioned by the firing of a wheel in consequence of the neglect of' the servants of the company to grease it.
Carr v. The Lancashire and Yorkshire Railway Company, 14 Eng. Law and Equity, 340, was a like case and founded upon a like contract, and it was held that, under the terms of *43 the contract, the railway company were not responsible. In both of these cases the loss was occasioned by the gross negligence of the defendants, but it is to be observed that they were made to turn entirely upon the construction of the contracts upon which they were founded, and upon the assumption that the contracts were legal under the provisions of the Carriers’ Act authorizing special contracts to be made; and it seems to have been admitted that railway companies had a right to protect themselves in such cases, doubtless, upon the principle that they were under no public obligation to transport cattle and live stock. In the case last cited, Parke, B., said: “ Prior to the establishment of railways, the Courts were in the habit of construing contracts between individuals and carriers much to the disadvantage of the latter. Before railways were in use, the articles conveyed were of a different description from what they are now. Sheep and other live animals are now carried upon railways, and horses which were used to draw vehicles are now themselves the objects of conveyance. Contracts, therefore, are now made with reference to the new state of things, and it is very reasonable that carriers should be allowed to make agreements for the purpose of protecting themselves against the new risks to which they are in modern times exposed. Horses are not conveyed on railways without much risk and danger; the rapid motion, the noise of the engine, and various other matters, are apt to alarm them and to cause them to do injury to themselves. It is, therefore, very reasonable that carriers should protect themselves against loss by making special contracts.”
Thus there are marked differences between those cases and the present, and the precise ground upon which this case rests was not considered or regarded as being involved, and hence the theory of the defendants finds in them but little, if any, support. But there are several late cases decided by the Court of Appeals, of the State of Hew York, which seem to go a great way in sustaining the doctrine for which the defendants contend.
Wells v. The New York Central Railroad Company, 24 H. *44 Y. 181, was an action to'recover damages for injuries sustained by the plaintiff while a passenger upon defendants’ road from a collision between the train in which he was riding and a freight train carelessly left on the track in the night time. The plaintiff paid no fare, but was carried under a free ticket, on which were printed the following words: “ The person accepting this free ticket assumes all the risk of accident, and expressly agrees that the company shall not be liable under any circumstances, whether of negligence of their agents or otherwise, for any injury to the person, or for any loss or injury to the property of the passenger using this ticket;” and it was held that such contract was not against law or public policy and was valid. That Court is composed of eight Judges—a bare majority concurred in the judgment, two dissented and one was absent. Mr. Justice Sutherland delivered the dissenting opinion in which he held that the contract exempting the defendants from liability for the negligence of themselves and agents was null and void as being against public policy. The leading opinion is very brief and unsatisfactory, while the other is able and conclusive upon the question as it was presented by the facts of that case.
This case was followed by Perkins v. the same company, ( 24 N. Y. 196 ) where it was held that a railroad corporation could not by contract exempt itself from liability to a passenger for damages resulting from its own wilful misconduct, but might, in respect to a gratuitous passenger, by contract exempt itself from liability for any degree of negligence in its servants, other than the board of directors or managers who directly represent the corporation. Here a distinction was made between passengers who pay and those who do not, and between immediate and remote agents.
Smith, Administrator of Joseph Ward, deceased v. the same company, 24 N. Y. 222 , was an action under the statute for damages resulting from the negligent killing of the plaintiff’s intestate while a passenger on the defendants’ railroad. The deceased made a written contract for the transportation of two car loads of hogs. The contract recited that they were carried *45 at a reduced rate in consideration of the owner’s assuming certain specified risks in respect to the safety of the hogs. It also contained this clause: “ It is further agreed that the said Ward is to load, transship, and unload said stock at his own risk; the said New York Central Railroad Company furnishing the necessary laborers to assist. And it is further agreed that the persons riding free to take charge of the stock do so at their own risk of personal injury from whatever cause.” Ward went upon the train in charge of his hogs. At Rochester the car in which Ward and other drovers had previously ridden was taken from the train, and an old emigrant car, unsafe by reason of a flattened wheel, was substituted. This car was thrown off the track, and Ward was killed. The plaintiff had a verdict. The judgment was affirmed by a majority of the Court, five being for affirmance and three for reversal. But the majority differ as to the grounds of affirmance. Mr. Justice Wright and Mr. Justice Sutherland held the contract void, the latter doing so irrespective of the question whether the transportation was gratuitous or for hire. Mr. Justice Smith was for affirmance on the ground that the negligence was that of the corporation itself, and not its agents. Mr. Justice Denio and Mr. Justice Davis were of the opinion that there is no general public policy forbidding a contract by which a railroad corporation may exempt itself from liability for the negligence of its agents in respect to a purely gratuitous passenger, but such contract was prohibited by the Railroad Act and its policy in the case of a paying passenger, and were for affirmance on the ground that the plaintiff’s intestate was not a gratuitous passenger. So the case .establishes no principle, and decides nothing except itself.
Bissell v. the same company, 25 N. Y. 442 , was an action precisely like the last. The plaintiff had judgment, which was reversed on appeal, five Judges being for reversal and three for affirmance.
The most that can be said for these cases is that they establish the doctrine in New York that a railroad corporation may, by express contract, exempt itself from -all liability for the *46 negligence or misconduct of its subordinate servants and agents, leaving, however, undetermined the question whether there are not certain agents so directly and immediately connected with the corporation that a contract relieving it from liability for their negligence would be illegal, (see opinion of Mr. Justice Selden in case last cited, p. 446,) which it must be confessed is not a very clear or satisfactory condition in which to leave so important a principle, and it admits of serious doubt whether, after all the discussion had in those cases, there is any common ground upon which a majority of the Court stand. Regarding them, however, as establishing the doctrine that a common carrier may contract against the negligence of his immediate agents, I think them opposed to principle and the weight of authority in America, and am not disposed to follow them. On the contrary, in my judgment, a contract exempting a common carrier from liability for losses to property, or injuries to persons resulting from the negligence of their agents, is null and void upon grounds of public policy, irrespective of the question whether the transportation be gratuitous or for hire. (See authorities cited in respondent’s brief.) But in applying this principle a distinction is to be made between agents, as whether they are immediate or remote. By the former I mean such as are directly employed by the party sought to be charged, in his business exclusively, and are of his own selection, paid by him and in all respects subject to Ms will. By the latter I mean such as are made Ms agents (if I may be allowed the expression), not by con tract directly between him and them, but by operation of law merely; or, in other words, persons not directly selected and employed by Mm and not in any respect under his control, but who nevertheless are in law considered as his agents, and for whose acts he is held responsible, notwithstanding they are in fact selected, employed and paid by and owe obedience to other parties who have no concern in his business and are in no just sense subordinate to him. Against the negligence of this latter class the common carrier may, in my judgment, protect himself by centre without violating any *47 principle of public policy, but as against the negligence of the former he cannot. As to the former the carrier occupies the position of a principal in fact as well as law, and the true reason upon which the doctrine of respondeat superior is founded exists; but his relation to the latter is not strictly that of a principal, and the maxim, Qui facit per aliam facit per sc, does not apply in any just sense. On the contrary, as to their acts he occupies a position analogoiis to that of an insurer only, and there is therefore no rule of public policy which precludes him from protecting himself by express contract against the risk of their acts. It cannot be claimed with any show of reason that negligence on the part of persons in charge of public conveyances, such as railroad trains, steamers and stage coaches, is induced by a contract between two strangers to the effect that one will and the other will not take upon himself the risk of their conduct in respect to the transportation of a particular shipment of goods. The transaction is too remote and can possibly have no bearing or effect upon the conduct of the parties in question. To say that the persons in charge of the Ada Hancock were less careful in the performance of their duty by reason of the contract between the plaintiff and defendants, of which they knew nothing, is to assert a proposition which is contrary to reason. . Had the treasure been lost through the negligence of Eitchie, the defendants’ messenger and immediate agent, or any other agent directly employed by' them in their express business, the defendants would have been liable notwithstanding any contract to the contrary, upon grounds of public policy. But the defendants may lawfully contract (as I understand them to have done, in effect, in the present case) for indemnity against losses resulting from defects in the public conveyances used by them in the prosecution of their business, and against the negligence of the persons having such conveyances in charge, without violating any principle of public policy. Such losses are not the result of their fault or neglect within the true intent and meaning of the rule invoked by the plaintiff. The business in which the defendants are engaged, and the *48 mode in which it is transacted, are of comparatively modern growth, and had no existence at the time when the rule, in question became a part of the common, law; and the new conditions presented by their use of remote, or, so to speak, foreign agencies in the transaction of their business, do not in my judgment fall within either the letter or spirit of that rule. The question is simply as to which of the contracting parties shall assume the risk of loss which may or may not result from the negligence of other parties ¡pver whom neither has any authority or control. In its determination the public can have no possible concern, for whichever way it may be decided the decision can have in the nature of things no effect whatever either by way of inducing or preventing the negligence in question. Nor is there any force in the suggestion that by holding such contracts valid the shipper will be placed at the mercy of the carrier. He is not bound to make the contract. On the contrary, he may insist that the carrier shall receive his goods upon the terms and conditions imposed by the law of the land, and the carrier cannot refuse to take them without subjecting himself to an action. Having engaged in a business, in its nature of a public character, he is bound to accommodate the public, and to receive and transport all goods coming within the line of his business, under all the responsibilities imposed by the law, upon the payment of a reasonable compensation.
It is urged, by way of argument on the part of the plaintiff, that, unless the defendants are held liable, the plaintiff will be without remedy, for the reason that the owners of the Ada Hancock, under the peculiar circumstances of this case, cannot be made responsible. This point rests upon the fact that the defendants did not give the master, agent or owners of the Ada Hancock a" note in writing of the true character and value of the treasure in question, pursuant to the provisions of an Act of Congress of the 3d of March, 1851, entitled “ An Act to limit the liability of shipowners, and for other purposes.” (United States Statutes at Large, 635.) That Act, by its own terms (Section 7), does “not apply to the owner or owners *49 of any canal boat, barge or lighter, or to any vessel of any description whatever, used in rivers or inland navigation.” It would seem that the Ada Hancock comes within the description of vessels excepted from the operation of the Act. She plies only between the shore and the anchorage of the steamer Senator, a distance of only three miles. Such can hardly be deemed ocean navigation. That term can only be applied to the voyage performed by the Senator. The ocean voyage commences and ends at the anchorage of the vessels by which it is performed. The office performed by the Ada Hancock was that of a lighter. She was used solely for the purpose of carrying passengers and light freight from the shore to the steamer Senator, and was, therefore, no more engaged in ocean navigation than the other small boats or vessels called lighters, in the record in this case, by which the heavier freight was usually transported. The latter are within the exact letter of the exception in question, and the Ada Hancock, in view of the purpose for which she was employed, can hardly be said to be without it merely because she is called a steam tug instead of a lighter. I am, therefore, of the opinion that the Act in question has no application to the facts of the present case; but were it otherwise, it is by no means clear that the defendants weré guilty of negligence in not complying with its provisions in order to charge the owners of the Ada Hancock. The Act was intended solely for the benefit and protection of shipowners, and I see no reason why they may not waive its observance on the part of shippers, if so disposed. There are facts in this case which tend to show that such may have been the case in the present instance.
My conclusion is that the case was not tried in the Court below upon the proper theory, and that the judgment ought to be reversed and the case remanded.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5435659. Public record. Not legal advice.