Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/359

PART IV.] LIABILITY FOR TORTS OF AGENTS. [§ 359. § 358. At this point it will be well to consider what evidence will show an agreement, consent, or acquiescence on the part of a passenger or shipper to limitations on of assent the liability of the carrier. As there is rarely an tionsof^ express assent in such cases, whether there was any j^?^ s assent at all becomes a question for the jury to guess at under the guidance of the court, unless the circumstances are such as to estop the person dealing with the carrier from deny- ing his assent. The cardinal distinction seems to lie here : the passenger or shipper will be presumed — though the presump- tion will not always be conclusive — to have agreed to whatever lawful terms are expressed on the face of a paper received by him from the agent of the carrier, when that paper contains the contract between the carrier and the person dealing with it. If, however, the paper so received does not express the con- tract of the parties, and is but a mere check, or ticket given by the carrier, there will arise no presumption that the person dealing with the carrier assented to its terms. The general idea is well expressed by Judge Boardman in Kirkland v. Dins- more : x " When a person, from the nature of the business, the manner in which it is transacted, and all the circumstances sur- rounding it, knows or has reason to believe he is receiving a contract that will bind him, he will be bound whether he reads or not. But where he may honestly, and in good faith, sup- pose he is receiving a check, token, receipt, or voucher of some kind, or ticket, as evidence of money paid, he will not be bound by a contract attached thereto, forming no necessary part thereof, to which his attention is not called, and which through ignorance, haste, or inadvertence, he neglects to read or assent to." § 359. In accordance with this rule, a shipper of goods will be presumed to have agreed to the terms of a bill of lading or "receipt" received by him ; as this ordinarily contains the con- tract between the shipper and the carrier. 2 Indeed, it is held 1 2 Hun, 46, 51. See, also, Blos- som v. Dodd, 43 N. Y. 264 ; Madan v. Sherard, 73 N. Y. 329. Magnin v. Dinsmore, 70 N. Y. 410 ; S. C, 62 N. Y. 35 ; Cincinnati, etc., R. R. Co. v. Pontius, 19 Ohio St. 221 ; Hill v. Syracuse, etc., R. R. Co., 73 N. Y. 351; Grace v. Adams, 100 Mass. 505; Louisville, etc., R. R. Co. v. Brownlee, 14 Bush (Ky.),590; Farnham v. Camden and Amhoy R. R. Co., 55 Pa. St. 53; Patterson V. 339