Fitch v. Carpenter

SHINN, J.

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

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the firm name and style of Argonne Van Lines and Argonne Van and Storage Company, a common carrier, undertook to transport from Mill Valley, California, to Los Angeles. The complaint alleged the contract of carriage, the payment of defendant’s charges in the sum of $173.61, that defendant represented to plaintiffs that all goods carried by him were fully covered by insurance against loss by fire; that they were induced thereby to enter into the contract of carriage with him, that defendant was negligent in the handling of the goods, and that the goods were thereby wholly lost through fire while in possession of defendant. In a separate cause of action plaintiffs alleged breach of the contract of carriage by failure to deliver the goods as agreed, and in the third cause of action it was sought to recover the sum paid for the transportation charges. The goods were alleged to be of the value of $4,239.50.

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