not inconsistent with sound public policy, but cannot make a contract exempting the carrier from negligence.

[Ed. Note. For other cases, see Carriers, Cent. Dig. 88 637-640, 646-648, 654-659; Dec. Dig. §§ 147, 150.*]

2. CARRIERS (§ 147*)-CARRIAGE OF GOODS

LIMITATION OF LIABILITY AS INSURER.

Such contract must be reasonable, and must have some consideration to support it, and not be opposed to public policy.

of such carrier that such company had in force
and effect two rates, one by which a less rate
was charged, upon condition that the shipper
waive the right to hold the carrier liable for
loss by fire, than was charged where no such
condition was embraced in the contract.

Dec. Dig. § 164.*]
[Ed. Note.-For other cases, see Carriers,

8. CARRIERS (§ 163*)-CARRIAGE OF GOODS-
SPECIAL CONTRACT-BURDEN TO SHOW-
LIMITATION OF LIABILITY-CONSIDERATION.
Where a special contract is pleaded as a

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 637-640, 646-648; Dec. Dig. defense in an action to recover damages for 147.*]

3. CARRIERS (§ 39*)-CARRIAGE OF GOODS LIABILITY.

A railroad company, engaged in the business of common carrier, is bound under the common law to receive and carry, within the class of goods it is engaged in carrying, such goods as are tendered for that purpose, and, in the absence of a special contract, to carry them with the full common-law liability of a common carrier.

loss of goods by a common carrier, the burden
of proof is upon the carrier to prove the con-
tract, and to prove a consideration therefor;
and the mere fact that the shipper accepts a
bill of lading containing conditions of exemp-
tion, without such contract showing a consider-
ation therefor, does not presume a considera-
tion.

Cent. Dig. §§ 722-725; Dec. Dig. § 163.*]
[Ed. Note.-For other cases, see Carriers,
(Syllabus by the Court.)

[Ed. Note.-For other cases, see Carriers,
Cent. Dig. § 98; Dec. Dig. § 39.*]
4. CARRIERS (§ 132*)-CARRIAGE OF GOODS-ty; W. W. Woods, Judge.
DIFFERENT CONTRACTS-DUTY OF CARRIER
TO SHOW CONTRACT MADE.

Appeal from District Court, Shoshone Coun

When a shipper goes to a carrier with a view of making a shipment, and the carrier has different kinds of contracts, one by which the carrier insures the goods shipped, and the other by which the shipper assumes all risk, it is incumbent upon the carrier to show the contract actually made.

---

[Ed. Note. For other cases, see Carriers, Dec. Dig. § 132.*]

Action by Ewen McIntosh against the Oregon Railroad & Navigation Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Featherstone & Fox and W. A. Robbins, for appellant. J. E. Gyde, for respondent.

STEWART, J. This action is to recover damages for the alleged failure of the defend

5. CARRIERS (§ 154*)-CARRIAGE OF GOODS-ant to safely transport and deliver to plainWAIVER OF LIABILITY-CONSIDERATION.

The fact that the railroad company accepts the goods and agrees to ship them is not a sufficient consideration for the waiver on the part of the shipper of the carrier's liability as insurer. There must be some other consideration, such as a reduced rate.

tiff certain grain received by defendant as a common carrier. In substance the complaint alleges: That the defendant as a common carrier received from the Tekoa Mill & Grain Company a certain quantity of wheat and oats, the property of the plaintiff, and thereupon undertook and agreed to safely trans

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 641-645, 667; Dec. Dig. § 154.*] 6. CARRIERS (§ 154*)-CARRIAGE OF GOODS-port the same from the said town of Tekoa LIMITATION OF LIABILITY.

A bill of lading, which in terms is a receipt for the goods to be transported, which contains a statement that: "This contract, and the responsibilities of the parties hereto, is limited and controlled by the conditions printed on the back hereof; as also by the terms and conditions of this company's printed tariffs, which are hereby declared to be an essential part to this contract"-and upon the back of such bill of lading is the statement that the goods mentioned are received for carriage, subject to the condition that the carrier shall not be liable for any loss or damage by fire, does not show upon its face any consideration for such exemption, and such exemption is void as against the shipper, unless it be shown by other evidence that there was a consideration for such exemption.

to the town of Wardner, in the county of Shoshone, state of Idaho, and deliver the same at the said town of Wardner to the plaintiff, for a reasonable reward to be paid to the defendant by the plaintiff upon the safe delivery of the said wheat and oats; that the defendant did not safely or otherwise carry or deliver the said wheat and oats, or any part thereof, but on the contrary, the said defendant has wholly refused to deliver the same, or any part thereof, to the plaintiff. Wherefore damages are demanded.

The defendant admits receiving the wheat for transportation, but denies that the de[Ed. Note. For other cases, see Carriers, fendant was engaged in the business of a Cent. Dig. §§ 641-645; Dec. Dig. § 154.*] common carrier for hire as to the wheat and 7. CARRIERS (§ 164*)-CARRIAGE OF GOODS- oats described in the complaint. The answer CONTRACT-LIMITATION OF LIABILITY. Where the evidence does not show that the admits that it did not safely or otherwise agent of the carrier, or the shipper, knew that a carry or deliver the said wheat or oats, or special rate would be given, or was given, as a any part thereof. The real defense is that condition for an agreement upon the part of part of the answer in which the plaintiff sets the shipper that the carrier should be exempt from liability for loss by fire, it is not error to up a special contract, under which said grain sustain an objection to the question propounded was received and agreed to be transported, in to a clerk in the general freight department which it is alleged it was stipulated and agreed

that no carrier should be liable for any loss or | tions or limitations, other than the name of damage to the property described in said bill the party to be notified of arrival of property. of lading for causes beyond its control, or by If any other than the aforesaid form of confire, and said provisions in said bill of lad- signment is used herein, the said property ing apply to the said shipment of grain; that may, at the option of the carrier, be delivered in pursuance of said contract the defendant to the consignee without requiring the proloaded said grain in a car to be transported duction or surrender of this bill of lading. to the plaintiff at Wardner, under said tar- The Oregon Railroad & Navigation Co., by iffs and said bill of lading, and while the D. G. Leitch, Agent. T. M. & G. Co., Shipsame was on the track of the defendant wait-per." ing to be transported, without any negligence "Consignee, marks, and destination: Ewen or want of care on the part of the defendant, McIntosh, Wardner, Idaho. No. packages, and from causes entirely beyond its control, 305. Articles-Sacks oats. S. P. car No. a fire broke out which then and there en- 30340. Cap., 40,000. Wt., 23,600. Weight veloped said car and said cars upon said (subject to correction), 32,800." Stamped track, and thereupon, and as soon as said with rubber stamp: "Claim No. 39641, The fire was and could be discovered, and immedi- O. R. & N. Co." ately upon being advised that said fire had broken out as aforesaid, the said defendant by its officers and agents made every reasonable and possible effort to save said property and to extinguish said fire, without success; that as a result of said fire, and without any fault or negligence and want of care on the part of the defendant, said grain was badly damaged, and in order to save any part thereof from total loss, immediate disposal was required, and the defendant was compelled to, and did, dispose of said damaged grain, and tendered to the plaintiff the amount realized therefor.

There is no substantial conflict in the evidence in this case. It appears that the Tekoa Mill & Grain Company sold to the plaintiff a consignment of wheat and oats. One L. J. Lauritzen loaded the shipment on the cars of the defendant company and billed it out. He testifies that there was no agreement between himself and the railroad company further than what was on the bill of lading: that the company did not offer to him at the time, or previous to such shipment, more than one rate. The bill of lading is in the following form:

"The Oregon Railroad & Navigation Co. Tekoa, Wash., Aug. 20, 1906. Received of Tekoa Mill & Grain Co. the following described freight, in apparent good order, marked and consigned as noted below, contents and value unknown, to be transported to Wardner, Idaho, and delivered in like good order to the consignee at said station, wharf or landing (or if said freight is to be forwarded beyond the lines of this company, to such company or carriers whose line may be considered a part of the route to the place of destination), on payment of freight charges, together with such charges as shall have been advanced on the same. This contract, and the responsibilities of the parties hereto, is limited and controlled by the conditions printed on the back hereof; as also by the terms and conditions of this company's printed tariffs, which are hereby declared to be an essential part to this contract. In order to render this bill of lading negotiable, the property shipped thereunder must be con

Upon the back of this bill of lading were indorsed the conditions, among which are the following: "The goods mentioned in this shipping receipt are received for carriage subject to the following conditions: 1. No carrier or party in possession of any of the property mentioned in this shipping receipt shall be liable for any loss thereof, or damage thereto, from causes beyond its control, or by floods or by fire or by quarantine, riots," etc.

The witness further testified: "The value of the grain was $340.20. I saw the car the next morning after it was taken away from our mill. It was about a quarter of a mile away from the mill on the Tilma track. When I saw the grain, there was none of it on the car. There was a little of it on the ground, and a lot outside along the side of the track. Some of it was sacked up. Some of it was laying loose, and it was burnt and smoking. * * It was not all burned, but I presume it was all more or less smoked. I should think there was about two-thirds of the grain left, but it was all damaged."

The plaintiff testified, and, among other things, stated: "I never received that grain, or any part of it, nor did the railroad company ever tender the whole or any part of it to me. The reasonable value of that grain at Kellogg or Wardner was $340 and some cents plus the freight. *At the time the grain was shipped I received a bill of lading signed by the railroad company. *

I never received any other paper from the company. I received the bill of lading in a letter from Mr. Lauritzen." This was practically all the evidence offered by the plaintiff, except as to the running of trains between the point of shipment and destination, and the plaintiff's experience in shipping over the Oregon Railroad & Navigation Company and the general method of doing business.

The defendant introduced the witness D. G. Leitch, who was the agent of the defendant company at the time the shipment was made, and, among other things, this witness testifies: "My general duty in shipping a car load of grain from Tekoa to Wardner

I

spotted and execute a bill of lading. By the execution of a bill of lading I mean that the railroad company's instructions are that the consignor is to sign a bill of lading, and the agent of the railroad company is expected to sign it on behalf of the railroad company. I only remember in a general way the transaction with Mr. Lauritzen. ** Well, I furnished them books. Those books were made in sets of 50 in each book. furnished them to Mr. Lauritzen to have at the mill when he wanted to use them there. He did not want to run to the depot for every bill of lading. Mr. Lauritzen always had a supply of these bills of lading there, and I used to check over-he had a supply of these bills of lading during the time I was agent there. I was there for about seven years. * * * This car was inspected on the 20th in the regular place on the Tilma track. That was the track we used to make up 94's train on. The train was made up, and was to leave early in the morning. The train was made up the night before with the baggage and caboose that was to go to the Coeur d'Alene, and was in there on the Tilma track, and on the morning of the 21st, I think it was, I learned there was a fire; that cars had been burned up, and I went down there and saw the oats lying on the ground. Sacks were burned off of them, and considerable of the oats was burned up." It further appears that the railroad company did not notify the plaintiff of the damage to his grain, or ask him what disposition should be made of it, but sacked up and sold it immediately, without a public auction or notice that the grain was destroyed. Other evidence was introduced by the company for the purpose of showing the last train that passed over the Tilma track before the fire, and the car inspector testified that he heard a fire alarm about 4 o'clock in the morning of August 22d, and looked around for the fire and found that it was up on the Tilma track; that he went up to the side track and got an engine out of the roundhouse, and went up and pulled the cars back; that the fire was under such headway when he arrived that it was impossible to put it out with appliances.

tion, and the objection was sustained, and counsel for appellant then made the following offer: "At this time we offer to prove by this witness that the Oregon Railroad & Navigation Company had in force and effect, in August, 1906, two rates for the shipment of grain from Tekoa to Wardner, Idaho. One shipment which moved under the special contract was 20 per cent. less than a shipment not moved under the special contract."

The controlling questions in this case are: First, does the bill of lading or contract for shipment introduced in evidence limit the common-law liability of the appellant company? second, does such. bill of lading constitute a contract which exempts the railroad company from liability for loss by fire, not occasioned by the negligence of the company? and third, upon whom does the burden of proof rest as to the contract? its nature, etc. We think it may now be conceded to be the law, and that such is recognized by the overwhelming weight of authority, that a common carrier may limit its strict common-law liability as an insurer in such manner as the law can recognize as reasonable, and not inconsistent with sound public policy, but cannot make a contract exempting the carrier from negligence. 4 Elliott on Railroads, § 1500, and authorities there cited; Hart v. Pennsylvania Ry. Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717; Railway Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627; Saunders v. Southern Ry. Co., 128 Fed. 15, 62 C. C. A. 523; 6 Cyc. 385; 5 Am. & Eng. Ency. Law, 292, 308. We think it may also be conceded to be the law, by the great weight of authority, that such contract must be reasonable, and must have some consideration to support it, and not opposed to public policy. 4 Elliott on Railroads, §§ 1502, 1504, and authorities there cited; 88 Am. St. Rep. note 1, p. 91; 6 Cyc. 395, 396; 5 Am. & Eng. Ency. Law, 298, 317. A railroad company engaged in the business of common carrier is bound, under the common law, to receive and carry, within the class of goods it is engaged in carrying, such as are tendered for that purpose, and, in the absence of a special contract, to carry them with the full A witness by the name of Stein testified common-law liability of a common carrier. for the defendant in substance as follows: And under the law as established by the "I am rate clerk in the general freight office great weight of authority, when a shipper at Portland, Or. My duties involve handling goes to a carrier with a view of making a of rates and tariffs. * * * Plaintiff's Ex- shipment, and the carrier has different kinds hibit A is a bill of lading. I have made a of contracts, one by which the carrier inspecial study of railroad rates. ** I sures the goods shipped, and the other by am familiar with the different Oregon Rail- which the shipper assumes all risk, it is inroad & Navigation rates by the reading of cumbent upon the carrier to show the conthe tariff." The witness was then asked tract actually made. The mere fact, howthis question: "Mr. Stein, suppose that the ever, that the railroad company accepts the shipper was to come into the Tekoa sta- goods and agrees to ship them is not a suffition August, 1906, and desired to ship a car cient consideration for the waiver on the load of oats from Tekoa to Wardner, what part of the shipper of the carrier's liability is the fact as to whether or not there was as insurer. There must be some other conmore than one rate that he could secure?" sideration such as a reduced rate, because

railroad company to ship goods tendered, and offer or agree to concede to the respondent of a class which it carries; and the mere fact a lower rate than the ordinary rate charged that it accepts goods and agrees to ship them for such shipments. The evidence does not is not a consideration which will support a show that the subject was ever mentioned contract whereby the carrier is relieved from to the shipper, or that he had any knowledge its common-law liability for damages result- of such fact, or that the agent of the coming to the goods received. We think this doc-pany, making such contract, had any knowltrine is based upon reason; and, while the edge of such fact. It is true that the appelcourts of the United States are very much divided upon the question of the liability of a common carrier, under a special contract limiting liability, and are not uniform in their holdings, yet we are inclined to the opinion that where a common carrier seeks to relieve itself from a common-law liability, it is incumbent upon the carrier to show that there was a consideration for the exemption claimed.

Where a special contract is pleaded as a defense in an action to recover damages for loss of goods by a common carrier, the burden of proof is upon the carrier to prove the contract and to prove a consideration therefor. In this case it was incumbent upon the It appears that this was the only contract railroad company to prove that a contract with reference to this shipment made be- was entered into between the shipper and tween the appellant and the respondent, and the company by which it was agreed, for a

[Ed. Note. For other cases, see Husband and Wife, Cent. Dig. §§ 317-323; Dec. Dig. § 79.*] 3. HUSBAND AND WIFE (§ 248*)-PROPERTY—

NATURE OF TENURE.

Under the provisions of the statutes of this state, the property of a husband and wife is property of each of the spouses and the comdivided into two classes, to wit, the separate munity property.

be liable for loss or damage to the goods by [or an enlargement of the powers of the wife to fire. 5 Am. & Eng. Ency. Law, 317. The bill make contracts as such rights existed at the common law. of lading offered in evidence does not prove such fact, and there is no oral evidence offered which proves such fact. It is argued, however, that the acceptance by the respondent of the bill of lading was an assent to the provisions contained therein, to the effect that the carrier should be exempt from liability for loss or damage by fire, and was sufficient proof of a consideration. This contention would be correct if the contract itself contained a provision that the exemption was agreed to by reason of the concession granted by the carrier that the shipment was made for a rate less than the ordinary rate; but this provision is not found in the contract. Chicago, etc., Ry. Co. v. Calumet, etc., Farm, 88 Am. St. Rep. 80, note "c."

[Ed. Note.-For other cases, see Husband and Wife, Dec. Dig. § 248.*]

4. HUSBAND AND WIFE (§§ 265, 272*)-COMMUNITY PROPERTY-HUSBAND'S INTEREST

NATURE-ABANDONMENT.

The title to the community property is in the husband, and during the existence of the community the wife's interest in the community property is a mere expectancy. His rights re active, and hers are passive. But, if he abandons his family or ceases to discharge his duties to them, the wife's passive rights in the community property then become active, and she may make contracts, especially in regard to the support of herself and family, which are collectible out of the community property. Edminston v. Smith, 13 Idaho, 645, 92 Pac. 842, 14 L. R. A. (N. S.) 871, 121 Am. St. Rep. 294, cited with approval.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 917, 1003-1007; Dec. Dig. §§ 265, 272.*]

5. HUSBAND AND WIFE (§ 151*)-FAMILYDUTY TO SUPPORT.

Where the contract contains no provision that the exemption is agreed to by reason of a special rate being given, the mere fact that the shipper accepts the bill of lading does not presume that such shipper assents to terms and provisions which are not contained therein. In such case the contract must be proven, and in this case there is no evidence whatever that such a contract was made. The written instrument does not establish it, and there is no oral evidence proving it. Phoenix Powder Co. v. Wabash R. Co., 101 Mo. App. 442, 74 S. W. 492; Id., 196 Mo. 663, 94 S. W. 235; Id., 120 Mo. App. 566, 97 S. W. 256; Kellerman v. Railroad Co., 136 Mo. 177, 34 S. W. 41, 37 S. W. 828; George v. Railroad Co., 214 Mo. 551, 113 S. W. 1099, 127 Am. St. Rep. 690. If, then, the appellant has failed to prove the allegations of the an-6. HUSBAND AND WIFE (§ 268*)-COMMUNITY swer to the effect that a special contract was entered into between respondent and appellant, whereby the appellant was exempt from liability from loss or damage by fire, then the defendant is liable under the common law for the failure to deliver the goods received for shipment.

Judgment affirmed. Costs awarded to respondent.

SULLIVAN, C. J., and AILSHIE, J., con

cur.

HALL V. JOHNS et al.

(Supreme Court of Idaho. Nov. 9, 1909.) 1. HUSBAND AND WIFE (8 79*)-COMMON LAW -CONTRACT RIGHTS OF WIFE-MERGER.

Under the common law the rights and privileges of married women, so far as making contracts were concerned, were merged in the husband at marriage.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 317-323; Dec. Dig. § 79.*] 2. HUSBAND AND WIFE (§ 79*) - CONTRACT RIGHTS OF WIFE-EXTENSION-STATUTES.

The provisions of chapter 3, tit. 2, Rev. Codes (sections 2674-2693), concerning the rights of married women, are in the nature of a grant

Under our statute it is the duty of the husband to maintain and support his wife and family. The wife is under no obligation to maintain the family out of her separate property, except as provided by section 2688, Rev. Codes.

Wife, Cent. Dig. §§ 582-595; Dec. Dig. § 151.*] [Ed. Note.-For other cases, see Husband and

PROPERTY
WIFE.

POSTNUPTIAL CONTRACTS OF

The community property is not bound for the payment of postnuptial contracts of the wife made for the use and benefit of her own separate property.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 963; Dec. Dig. § 268.*] 7. HUSBAND AND WIFE (§ 55*)-COMMON-LAW STATUS OF WIFE.

Under the common law, the legal existence of the wife at the date of the marriage merged in that of her husband.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 272; Dec. Dig. § 55.*] 8. HUSBAND AND WIFE (§ 268*) - WIFE'S RIGHT TO CONTRACT-COMMUNITY PROPERTY. The statutes of this state empower the wife to bind her separate property by contracts entered into respecting the same or for her own use and benefit, and she has no power to burden the community property with such contracts.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 963; Dec. Dig. § 268.*] 9. HUSBAND AND WIFE (§ 268*)-COMMUNITY PROPERTY-INDIVIDUAL DEBTS.

The wife cannot either directly or indirectly make the community property liable for her debts which are contracts for the benefit of her separate property for her own use and benefit.

Wife, Cent. Dig. § 963; Dec. Dig. § 268.*]
[Ed. Note.-For other cases, see Husband and
(Syllabus by the Court.)