II. The merits. The property was delivered, accepted, and carried under and subject to the provisions of a special contract, and not under or in pursuance of a general undertaking on the part of the defendants to transport the property as common carriers. There can be no doubt, at this time, notwithstanding that able writers once through other wise, that such a receipt, accepted under such circumstances, constitutes an agreement between the company and the owners of the property, and has the same effect in law as if signed by both parties.
The defendants having been thus shown to have been special carriers of the property in question, the court should have instructed the jury that the plaintiffs could not recover in this action.
It is a question of law for the court, and not of fact for the jury, whether facts proved or admitted constitute a special contract or not.
Whenever a special contract exists, changing the character of a carrier from a common to a private carrier, the latter cannot be declared against as a common carrier, but the action must be on a special contract, or for a breach of duty arising out of such contract; and if the declaration in such case set forth the general liability of the defendants as a common carrier, the variance is fatal.
The declaration here was upon a supposed general undertaking as common carriers.
The court should have instructed the jury, that by the terms of this contract, there could be no recovery against the defendants, unless they were guilty of gross negligence or misfeasance in regard to this property, and the loss was occasioned thereby.
The terms of the contract leave no doubt as to the meaning of the parties. And we contend that effect should be given to their stipulation, at least to the extent of relieving the carriers from liability for every degree of negligence, except that which has been termed gross or guilty negligence, or which amounts to positive misfeasance.
This court has never decided, we suppose, that a stipulation against losses from negligence, short of misfeasance or misconduct, cannot be made by a carrier of merchandise. In the case of York Company v. Central Railroad the question did not arise, but there Field, J., would seem to apeak of misconduct of the carrier as a thing alone against which no contract could be maintained.
The spirit of the later adjudications, in those States where the subject has been most carefully considered, is not opposed to any agreement or arrangement between parties to such a transaction, which shall relieve the carrier of property from responsibility for negligence which does not amount to positive misconduct or fraud, misfeasance, malfeasance, or gross negligence, in respect to the subject committed to his care.
The doctrine of Pollock, C. B., in Beal v. South Devon Railway Company, that 'a contract to which a person has signed his name is, quoad him, a reasonable contract; that he has agreed to it, and therefore has no right to complain of it,' is a doctrine which commends itself to good sense.
Mr. Justice DAVIS delivered the opinion of the court.
Before proceeding to consider the merits of this controversy, it is necessary to dispose of the point of jurisdiction which is raised.
It is urged that the Circuit Court had no jurisdiction over the cause, because there was no authority to transfer it. This depends on the construction of the acts of Congress relating to the subject.
On the admission of a new State into the Union, it becomes necessary to provide not only for the judgments and decrees of the Territorial courts, but also for their unfinished business. In recognition of this necessity Congress, after Florida became a State, passed an act providing, among other things, thst all cases of Federal character and jurisdiction pending in the courts of the Territory be transferred to the District Court of the United States for the District of Florida. The provisions of this act were made applicable, at the time of its passage, to cases pending in the courts of the late Territory of Michigan, and were afterwards extended to the courts of the late Territory of Iowa. Congress, in making this provision for the changed condition of Iowa, though proper in the same act to adopt a permanent system on this subject, and extended the provisions of the original and supplementary acts to cases from all Territories which should afterwards be formed into States.
