Former opinion, sustained November 9, 1915.
On Rehearing.
(152 Pae. 509.)
On rehearing for appellant there was a brief over the names of Mr. Charles E. Cochran, Mr. John P. Han-non and Mr. Arthur C. Spencer, with oral arguments by Mr. Cochran and Mr. Hannon.
*30For respondents there was a brief with an oral argument by Mr. Lotus L. Langley.
In Bane.
Mr. Justice Burnettdelivered the opinion of the court.
A statement of the issues in this case appears at page. 18, 78 Or. (at page 862 of 150 Pac.), and need not be here repeated. On the rehearing the defendant argued that, under the stipulation of facts, the plaintiffs were bound by all the acts of the Pacific Transfer Company of Spokane, including the execution by it of the bill of lading which the defendant contends released the value of goods to $10 per hundredweight, carrying with it a reduced rate of freight and the accompanying waiver of all value in the settlement of damages for loss of goods above the conventional appraisement. In subr stance, the defendant maintains as a principle that whoever has possession of goods and tenders them to a common carrier for shipment has apparent authority to bind the owner by any lawful contract of carriage. A number of New York cases are cited in support of this doctrine. The leading one is Nelson v. Hudson R. R. Co., 48 N. Y. 498. There the plaintiff had bought a large mirror from a firm dealing in such goods, and' directed the seller to ship it to him by the defendant’s railroad. A custom relating to such shipments was known to the firm to the effect that freight of that kind in packages too large to be put into closed cars should be carried on open cars, but at a valuation lessening the amount of damages to be assessed in case of loss. The firm sent the mirror to the railroad company, which issued a restricted receipt according to the usage, and agreed to hold the property until the seller should examine the same and determine whether to accept those conditions or to retain the goods. After *31waiting the stipulated time and hearing nothing further, the company forwarded the goods, which were damaged en route. In the opinion by Judge Hunt it was held that the firm had apparent authority to agree to the release. An opinion by Mr. Justice Earl concurs on the ground that the firm had ratified the release after knowing all the facts, but held that its cartman had no authority to make the contract. He made the matter to depend entirely upon ratification. It is significant that the opinion quotes with approval from Redfield, Carriers, § 52:
“As a general rule, the agent to whom the owner intrusts the goods for delivery must be regarded as having authority to stipulate for the terms of transportation. By this we do not mean the porter or cab-man, or mere servant, but the consignor of the goods, or any other agent of the owner who purchases or procures them for him. ’ ’
Another precedent is California Powder Works v. Atlantic & Pacific R. R. Co., 113 Cal. 329 (45 Pac. 691, 36 L. R. A. 648). The plaintiff manufactured powder at Santa Cruz, California, and habitually transported it by narrow-gauge railroad to San Jose, where it became necessary to convey it in trucks to the depot of the defendant and load it on the defendant’s broad-gauge cars. During a period of several years this transfer from one road to the other had been committed to a certain drayman, and a course of business had grown up between the parties whereby he in every instance executed the ordinary release of valuation and exemption from damages beyond a certain sum. It was there held that all these circumstances raised an apparent authority of the drayman to execute the release, so that for the loss of a carload of powder by explosion during transportation the *32plaintiff was allowed to recover only the lesser valuation. In Adams Express Co. v. Carnahan, 29 Ind. App. 606 (63 N. E. 245, 64 N. E. 647, 94 Am. St. Rep. 279), the plaintiff declared specially on a contract made with his agent, and, of course, could not repudiate part of that agreement and rely upon the rest. In Atchison etc. Ry. Co. v. Baldwin, 53 Colo, 416 (128 Pac. 449), the contract of shipment was made by one who had been employed by the plaintiff company several years in that business, and the stock in question was shipped in the presence of one of the owners. In Blair v. American Forwarding Co., 159 Ill. App. 511, the defendant was a forwarding company and .made its profits in business by accumulating from individual purchasers different small lots of freight, and combining them until they would amount to enough to fill a- car, when it would ship the goods in its own name, and, in pursuance of a custom which had grown up in the business, would sign the lease. It was decided that under these circumstances the defendant would not be held for more than the stipulated value. In Squire v. New York Cent. R. R. Co., 98 Mass. 239 (93 Am. Dee. 162), a drover was accompanying a cargo of hogs destined to a distant point. During the journey it became necessary to change them into the cars of another transportation company, and it was held that he had apparent authority to execute the usual release. In Peirce v. American Express Co., 210 Mass. 383 (96 N. E. 1026), the plaintiff had sent part of his automobile to a repair:shop in Boston, with instructions to return it to him by express. It was held that the repairer had authority to take the usual receipt. In McElvain v. St. Louis & S. F. R. Co., 176 Mo. App. 379 (158 S. W. 464), the plaintiff had bought a carload of mules and directed the seller to *33attend to all the details of shipping them to him, which, it was decided, gave the seller apparent authority to execute a release. In Willard v. Chicago & N. W. R. R. Co., 150 Wis. 234 (136 N. W. 646), the plaintiff went with his hired man and loaded his horses into the defendant’s car. He then went away, directing the man to attend to getting the bill of lading. It was held that there was apparent authority in the hired man to execute the release. In Great Northern Ry. Co. v. O’Connor, 232 U. S. 508 (58 L. Ed. 703, 34 Sup. Ct. Rep. 380), the plaintiff had intrusted her goods to a forwarding company, which obtained carload rates by combining small shipments, and it was held that, if, the defendant was a shipper to obtain carload rates, it was also a shipper to agree upon released valuation. In the forwarding company cases it appears that the defendants were interested directly in the rates, and made their profit by combining small shipments into carload lots, getting carload rates, and charging their customers part of the difference between them and the greater ones upon small lots. The element of special circumstances runs through all the precedents cited by the defendant, and indicates that the person attending to the transportation of the goods had a more intimate connection with them than that of a mere drayman or servant.
A case more applicable to the instant litigation is Benson v. Oregon Short Line R. R. Co., 35 Utah, 241 (99 Pac. 1072, 136 Am. St. Rep. 1052, 19 Ann. Cas. 803). The plaintiff, at Butte, Montana, employed a man to pack and deliver at the defendant’s depot for shipment to Logan, Utah, certain household goods. These were taken to the depot by the man, and by him delivered to the defendant to be shipped. He signed *34a release much the same as the one here involved. A clause of the syllabus reads thus:
“The drayman employed by a shipper to take goods to a railroad depot and ship them is not authorized to enter into a contract with the carrier limiting the carrier’s liability, and the shipper is not bound by the contract, the drayman not being one who was in the habit of taking plaintiff’s goods to the depot and arranging for their shipment, and the shipper not being furnished with a copy of the contract, and not knowing of its existence until long after the goods were shipped.”
In Hill v. Adams Express Go., 77 N. J. Law, 19 (71 Atl. 683), the following appears in the syllabus as expressive of the doctrine of the case:
“A box to be shipped by Adams Express Company to Ireland was called for at the residence of the shipper by a driver of a local transfer company and delivered by bim to the express company with a prepayment of the charges; nothing being asked or said as to valuation. The receipt that was handed to the driver of the transfer company by the express company was delivered by him to the shipper two days later, at which time the box, while in the possession of the express company, had already been destroyed by fire. In an action brought by the shipper against the express company for the value of the box, held, that a motion to nonsuit was properly denied, and that a request that the plaintiff’s recovery be limited to $50 pursuant to a provision in the express receipt was properly refused. Where a shipper employs a common carrier (in this case the Union Transfer Company) to carry goods to an express office (in this case Adams Express Company) for shipment, the driver of the wagon of the local carrier who delivers the goods to the express company is not a servant or agent of the shipper with whom the express company may make a special contract binding the shipper in the event of *35loss to a limitation of such carrier’s common-law liability.”
In Stickel v. United States Express Co., 85 N. J. Law, 285 (89 Atl. 23), the plaintiff ordered the express company to call at her room and get a trunk for shipment. She told her landlord to let the defendant have the trunk and get a receipt. He took a restricted receipt, and it was held that he exceeded his apparent authority. In Mayes v. Adams Express Co., 74 N. J. Law, 537 (65 Atl. 1044), the defendant’s driver got a drop curtain from the plaintiff’s employee, who issued a limited liability receipt. It was held to be disputable whether the plaintiff assented to the terms of the document. In Schlosser v. Great Northern Ry. Co., 20 N. D. 406 (127 N. W. 502), the court refused to recognize one in custody of certain horses as having apparent authority to execute a released valuation contract in the name of the plaintiff. In Hailparn v. Joy S. S. Co., 50 Misc. Rep. 566 (99 N. Y. Supp. 464):
“The owner of goods, with a truckman, took them to a carrier; the owner leaving the truckman to deliver them, get a receipt therefor, and deliver it to the owner’s wife. The truckman delivered them, got a bill of lading, naming him as ‘ owner or shipper, ’ and the owner as consignee, and without examination signed in his own name a paper handed him by the carrier’s agent, who knew he was merely a truckman, with the direction that he sign ‘this release,’ which recited that, in consideration of the transportation of the goods at ‘reduced rates,’ of which fact there was no other evidence, liability for damages from negligence of the carrier was released. Held, that the release was ineffectual; there being nothing to show it was accepted by the shipper. ’ ’
6, 7. In the instant case the stipulation says:
“That the agent of said defendant company who received said shipment at Spokane, Washington did not *36inform the Pacific Transfer Company of a valuation having been placed on said shipment, nor of a difference of freight rates between shipments so taken at an agreed valuation and shipments taken without an agreed valuation, and that defendant made no inquiry as to the value of the goods. ’ ’
It is true indeed, the stipulation contained this clause:
‘ ‘ That a bill of lading was issued for said shipment of freight as herein referred to and was given to Pacific Transfer Company, and by it sent to plaintiff at the City of Portland, Oregon, at which place plaintiffs were at the time said goods were delivered to defendant. ’ ’
It does not appear, however, that the plaintiffs received the document prior to the loss of the goods, or that they had an opportunity to either ratify or reject the same until it was too late to take such action. In this respect the case is parallel to that of Hill v. Adams Express Co., 77 N. J. Law, 19 (71 Atl. 683). In all instances ratification must proceed upon a knowledge by the party to be charged of all the facts relating to the transaction which it is sought to enforce against him. Everything at Spokane, including the prepayment of the charges, was done by the transfer company. The argument of the defendant depends upon the fallacy that the payment of the amount charged for freight was made directly by the plaintiffs, but the stipulation will not bear this construction. The essence of the controversy here narrows down to the question of whether or not in all cases the person at the moment in custody of goods has apparent authority to bind the owner to conditions lessening the efficacy of his remedy against the trans*37portation company for loss of goods en route. It is stipulated:
‘ ‘ That the plaintiffs instructed said Pacific Transfer Company to deliver the shipment above mentioned to the defendant for shipment from Spokane, Washington, to East Portland, Oregon, and said plaintiffs gave the Pacific Transfer Company no other or further instructions whatsoever.”
This agreed fact shows no further or different circumstance than attends the most irresponsible transient drayman whose entire connection with the transaction ends when he unloads the chattels at the freight depot and receives his cartage from their owner. The plaintiffs did not order the transfer company to ship the goods which might include the authority to make the contract. The direction was only to deliver the goods to the defendant for shipment, in which case both the duty and authority of the transfer company ended with the delivery of the goods; in other words, there is nothing in the case at hand distinguishing the transfer company from any other chance employee. There is no magic .in the words ‘ ‘ the transfer company” which differentiates that concern from any other occasional truckman. This isolated instance is far different from a long course of business and other circumstances disclosed in the precedents the defendant has cited. In those a much more intimate relation to the property by the person in custody of the same is shown than appears in this ease.
It is laid down in Lacey v. Oregon R. & N. Co., 63 Or. 596 (128 Pac. 999), that, where the defendant carrier alleges a special contract lessening its common-law liability, it must prove the same. As stated in Russell v. Erie R. R. Co., 70 N. J. Law, 808 (59 Atl. 150, 67 L. R. A. 433, 1 Ann. Cas. 672):
*38“The burden of proof of showing such a limitation of liability is on the defendant company and, being in derogation of common right, is to be construed most strongly against the carrier: 5 Am. & Eng. Ency. Law (2 ed.), 336; Ashmore v. Pa. Stream Towing & Trans. Co., 28 N. J. Law, 180; Hooper v. Wells, Fargo & Co., 27 Cal. 11 (85 Am. Dec. 211). No presumptions will be indulged in in favor of exemptions from common-law liability.”
Applied to this case, it is incumbent upon the defendant to show something more than the transient drayman’s mere casual connection with the goods. Having proven nothing further than that, it has fallen short in its effort to establish its special contract; for it cannot be accepted as an unvarying and inflexible rule of law that any and everyone whomsoever, momentarily in custody of goods, may subject them to a contract of carriage so vitally affecting the owner’s interest.
We adhere to the former opinion.
Affirmed. Sustained on Rehearing.