PRESS CO. (77 N. J. L. 19) (Supreme Court of New Jersey. Dec. 22, 1. CERTIORARI (§ 54*)-RETURN. [Ed. Note. For other cases, see Certiorari, Dec. Dig. § 54.*] property. His testimony in this regard is entitled to respect. Vice Ordinary Reed, HILL, to Use of FERRIS, v. ADAMS EXspeaking for the Prerogative Court in the Spark's Case, 63 N. J. Eq. 242, at page 249, 51 Atl. 118, at page 121, says: "The absence of any influence, which can be regarded as undue, must in the main, of necessity, be proved by the legatee himself.' "The testimony of the legatee, unless contradicted by some other credible testimony, or discredited by its improbability, cannot be arbitrarily disregarded.' The evidence clearly shows that the case now before me is within the established rule laid down in Bennett v. Bennett, above cited, that 'every person competent to make a will has a right to the aid of any person he may think proper to select, when he desires to put his testamentary wishes in form to have legal efficacy; and, if he exercises this right without improper influence or control, though he selects the person he intends to make his principal bene'ficiary, that fact, in the absence of evidence showing an abuse of confidence, constitutes no reason why probate should be denied to his will.' The proofs produced before me stand uncontradicted by any evidence produced by the contestants. It has been shown to my satisfaction that Axtell did not abuse the confidence of testatrix. The contention that he should, under the circumstances, have refused to accept her bounty is a question of ethics with which this court is not concerned. "I am fully convinced that the will and codicil in question are untainted by fraud or undue influence. They represent the testamentary wishes of a woman of good mental capacity, acting free from all moral and physical coercion, and have been drawn strictly in accordance with her directions. Her wishes must control this court. An order will be made admitting them to probate as the last will and testament of Esther J. Cooper." Vreeland, King, Wilson & Lindabury, for appellants Harrison, Huff, and Guerin. John M. Mills, for appellants Pruden, Briant, Mandridge, Groendyke, Simonson, and Mullen. Willard W. Cutler, for respondent executors. Charlton A. Reed, guardian ad litem, pro se. PITNEY, Ordinary. Counsel for the appellants do not controvert the principles of law adopted by the court below as applicable to the case. The contention is that the learned judge erred in his conclusions of fact. My examination of the case convinces me that those conclusions are fully supported 2. CARRIERS (§ 113*)-CARRIAGE OF GOODS- 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. [Ed. Note. For other cases, see Carriers, Dec. Dig. § 113.*] 3. CARRIERS (§ 180*)-LIMITATION OF LIABILITY-EXPRESS COMPANIES-AGENT OF SHIP PER. rier (in this case the Union Transfer Company) Where a shipper employs a common carto carry goods to an express office (in this case Adams Express Company) for shipment, the driver of the wagon of the local carrier who de livers 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 loss, to a limitation of such carrier's common-law liability. [Ed. Note. For other cases, see Carriers, Cent. Dig. § 815; Dec. Dig. § 180.*] 4. EVIDENCE (§ 244*)- DECLARATIONS-DEC LARATIONS BY AGENT. Where the adjustment of a claim of loss against an express company was referred by its main office in New York to the general manager of its Philadelphia office, who took the matter up with a representative of the plaintiff, the relevant declarations made by such general manager in the course of such negotiations and germane to the matter in hand are admissible in evidence against the express company in an action between the same parties growing out of the same transaction. [Ed. Note.-For other cases, see Evidence, by the evidence, and that the respondent Ax- Cent. Dig. §§ 916-936; Dec. Dig. § 244.*] tell fairly sustained the burden of showing that the will was the product, not of undue influence, but of the free and independent judgment of the testatrix. The decree under review will be affirmed. (Syllabus by the Court.) Certiorari to District Court of Camden. Action in the district court of the city of Camden by Frank Hill to the use of Mary A. Ferris, against the Adams Express Com pany. Judgment for plaintiff, and defendant | delivered the box to the defendant at its local sued out a certiorari to review the same. office in Camden, prepaying the express Affirmed. See, also, 74 N. J. Law, 338, 68 Atl. 94. : charge demanded, and receiving a receipt, which he took to the office of the transfer company, where he was told to deliver it to Miss Ferris, which he did two days later, Joseph at which time the box had already been de stroyed by a fire that occurred at the terminal office of the defendant at New York or Hoboken. At no time was anything asked or said by any one as to the value of the GARRISON, J. This writ of certiorari brings up a judgment of the district court of the city of Camden. A preliminary question is whether there is any return to this writ upon which the prosecutor may rely in support of his reasons for reversal. The return, apart from the judgment record, consists of a transcript of the stenographic report of the proceedings and testimony certified by the judge of the district court pursuant to chapter 138, p. 259, of the Laws of 1905. This act requires that such certified transcript "shall be transmitted by the party suing out the writ of certiorari to the clerk of the Supreme Court within fifteen days from the rendition of the judg ment." In the present case this was not done, and counsel for the defendant in certiorari contends that such transcript should on this account be rejected. Rule 32 of this court, however, provides that a state of the case not objected to within five days after its service shall be deemed to be complete. We shall therefore take the statutory return in this case in so far as it bears upon the legal merits, without considering certain questions concerning it that would have arisen if timely objection had been interposed or a preliminary motion to strike out such return had been made. We are thus brought to the merits of the present controversy. The plaintiff's action was brought in the district court to recover damages for the loss of a box delivered to the Union Transfer Company to be carried to the defendant's local office for shipment by express to Ireland. The case, which was tried without a jury, resulted in a judgment for the plaintiff for $300. The prosecutor's first reason for reversal is that a motion to nonsuit made at the close of the case should have been granted. (The defendant offered no testimony.) box. The mere statement of the plaintiff's case makes it too clear for argument that the motion to nonsuit could not have been granted The next reason for reversal is the refusal of the district court to limit the plaintiff's That a carrier may thus limit its commonlaw liability by a special contract with the shipper is established in this state, with the proviso that the burden of proving that the shipper actually made such a contract is on the carrier. Russell v. Erie R. R. Co., 70 N. J. Law, 808, 59 Atl. 150, 67 L. R. A. 433. The validity of such contracts does not rest upon the right of the carrier to bargain for an exemption from the results of its own negligence, but upon its right to stipulate with the shipper as to the value of the latter's property, and to predicate upon such valuation both the rate of carriage to be charged the shipper and the amount of the carrier's liability in the event of loss. Atkinson v. N. Y. Transfer Co. (N. J. June Term, 1908) 71 Atl. 278. This case also decided that where the shipper knows that the rate he is being charged is based upon an undervaluation of his property his silence is tantamount to his assent that such valuation shall be the amount for which the carrier shall be liable in the event Upon the review of the ruling of the trial of loss. In order to determine whether a givcourt upon this motion, the plaintiff's case en case comes within this rule, the crucial was that on March 25, 1904, she engaged question is: When may the shipper be said the Union Transfer Company to take a box to know that the rate that he is being chargfrom her residence in Camden to the local ed is based upon an undervaluation of his office of the Adams Express Company for property? This question, being one of fact, shipment by that company to Ireland; that is from its nature incapable of being answera driver of one of the wagons of the transfer ed by any mere formula; each case must in a company called at the house of Miss Ferris measure rest upon its own circumstances. (the owner of the box and the substantial There is, however, in a very large proportion plaintiff), and there got the box and carried of cases a matter in limine that is of prime it to the office of the transfer company, where importance in the solution of this question, it was marked with an address given by viz., whether the delivery to the shipper of a servant of the carrier's customer, and no one can recover damages for a loss occasioned by the negligence of his own servant. voucher which contains the terms of a special | ant of the carrier becomes pro hac vice the contract based upon a valuation placed on such property in such receipt becomes in the event of loss an executed contract by which the shipper is bound if he received such document without indicating his dissent to this feature of it. Speaking of such instruments, Gummere, C. J., in the case last cited, which was a Court of Errors decision, said: "It is insisted on behalf of the plaintiff in error that Mrs. Atkinson by receiving the bill of lading became bound by its provisions; that the mere acceptance of this paper without any indication of dissent from its terms bound her as fully as if she had expressly assented to them, and that she could not afterward deprive the plaintiff in error of the protection of its provisions by asserting that she was ignorant of its contents. We are not required to pass upon the soundness of this proposition." The question was therefore not decided in the case from which we have quoted. The same court, however, in Hayes v. Adams Express Company, 74 N. J. Law, 537, 65 Atl. 1044, speaking through Mr. Justice (now Chancellor) Pitney, had already decided that "mere knowledge by a shipper that a carrier's rates are based upon the value of the goods shipped will not lessen the liability of the carrier to answer for the value of the goods in the absence of the shipper's assent to such a restriction." But not only is the fiction in question thus out of harmony with the general law of master and servant, it also runs counter to more than one of the established doctrines respecting that relationship such, for instance, as the independent contractor doctrine, under which agency cannot be traced through an independent actor; and the fellow servant doctrine, under which the relation of master and servant cannot be changed without the consent of the servant. It is also repugnant to the doctrine upon which the courts of this state based their repudiation of the rule laid down in Thorogood v. Bryan. Inasmuch as Thorogood v. Bryan concerned the imputation of negligence, the grounds of its repudiation may seem to be lacking in application to the question of the imputation of agency; but identity of principle is of more importance than mere analogy, and in principle the two classes of cases are not only similar, but the principle involved is even more appropriate to cases of contract than to those where conduct merely is concerned. This will appear from a statement of the tion. Thorogood v. Bryan, 8 Man., Gr. & case cited and of the grounds of its repudiaScott, 116, had held that, where the negli gence of the driver of an omnibus contributed to a collision with another vehicle by which a passenger in the omnibus was killed, the representative of such deceased passenger could not recover from the proprietor of such other vehicle damages for its negligent man It will be observed that the decision was not that such result might not follow the shipper's knowledge that the rate he was being charged was based upon a valuation stated in a receipt that was delivered to him. There is therefore no conflict between the two decisions, although neither of them pass-omnibus was so identified with the passenger agement, for the reason that the driver of the ed upon the question we have propounded, he was carrying as to be in legal effect his which now calls for our decision only in case the driver of the transfer company had au- servant. By force of this doctrine the neglithority from Miss Ferris to give or to with-gence of the driver of the omnibus was imputhold her assent to the valuation placed uponed as contributory negligence to his fictional her property in the receipt that was handed master, to wit, his passenger. to such driver when he delivered her box to the express company. This doctrine was emphatically repudiated in our Supreme Court in Bennett v. New If the driver had such authority from the Jersey R. R. & T. Co., 36 N. J. Law, 225, 13 shipper, it must have arisen as a fiction of Am. Rep. 435, and in the Court of Errors and law from the mere fact of her employment of Appeals in N. Y. L. E. & W. R. R. Co. v. the transfer company to deliver her box to Steinbrenner, 47 N. J. Law, 161, 54 Am. Rep. the express company, and to prepay the 126, in opinions demonstrating its inconsistcharges demanded, for she did nothing else ency with established principles of law, which to constitute the servant of the transfer com- are of equal cogency upon the question we pany her special agent. Such fiction, how- are now considering. The same result was ever, by which the servant of a common car- reached in the Supreme Court of the United rier (in this case the transfer company) is by States in Little v. Hackett, 116 U. S. 366, 6 mere operation of law transferred to the Sup. Ct. 391, 29 L. Ed. 652, in which Mr. service of whomsoever contracts with such Justice Field characterized the opinions decarrier, not only does violence to all our pre-livered by Chief Justice Beasley and Mr. conceived notions touching the relation of Justice Depue in the two New Jersey cases master and servant, but seems to lead to the as "of marked ability and learning." The absurd result that one who thus contracts fact is that Thorogood v. Bryan has been forfeits thereby all right of recovery against quite generally discredited both in this counsuch common carrier for losses arising out try and in England, and in all the courts in of the negligence of one of its servants, for which it has been repudiated stress has been by force of the fiction in question such serv- laid upon the passenger's lack of control over the driver as the test to be applied in such, by one who was himself the mere driver of teams for another common carrier. cases. Upon principle I am unable to distinguish between a passenger's lack of control over the driver of a conveyance in which he is riding and the customer's lack of control over the driver of a transfer wagon in which his property is being carried. In point of law their impotence is the same, while in point of fact such impotence is greater in the latter case than in the former; for the passenger being present may and often does exert some influence over the conduct of the driver of the conveyance, but in the case of the transportation of goods the owner does not accompany his property, and hence has no opportunity whatever to exercise the slightest control over the carrier's servant. Obviously the rule of our cases forbids the imputation of agency in cases such as that now before us. I am aware that there is a line of decisions, whose soundness need not now be questioned, of which Nelson v. H. R. R. R. Co., 48 N. Y. 498, may be taken as the type, which hold that the agreement or arrangement between two persons touching the shipment of goods may be such that the owner of the goods is bound by the terms of their shipment if assented to on his behalf by the servant of his agent or representative. And inasmuch as this doctrine was referred to arguendo by Judge Vroom in his opinion in the Russell Case, it may be well to point out that the decision of that case was placed solely upon the narrow point that the servant of the shipper's agent carried to the shipping office a completely made out shipping order that definitively marked the limits of his authority, hence the question as to what his authority would have been but for such limitation was not a matter of decision in that case. Assuming, however, the correctness of the decisions referred to, they are clearly distinguishable from the present case, not only by reason of the wide difference that exists between instructions given to a personal agent to cause goods to be shipped and the mere employment of a common carrier to carry goods to a shipping office, but also, and more fundamentally, because of the legal distinction between acting through another person in the performance of an act and contracting with such other person for the performance of such act. This distinction, which lies at the foundation of the independent contractor doctrine, is too radical to be overlooked when considering the underlying principle of these cases, which is that the relation between the parties or their business custom raises a presumption of agency that includes the right to declare the value of the goods or to assent to a valuation placed on them by the carrier, which are correlative powers, neither of which will without proof be presumed in a case such as the present, where the There is nothing, therefore, in the decisions we have spoken of that militates against the conclusion we have reached, which is that the driver of the transfer company in the present case had no authority from Miss Ferris to make for her a special contract with the express company by which the liability of the latter should be limited in the event of loss. Having reached this conclusion, the question whether the driver had by his silence assented to the terms of the receipt that was handed to him does not call for decision. The reason under consideration, therefore, does not lead to the reversal of the judgment brought up by this writ of certiorari. The only other reason urged for reversal is that the authority of A. J. Town as general agent of the defendant in Philadelphia to bind the defendant by his declarations was not established. This was the chief defect upon a previous trial of this cause, as appears from the opinion of Mr. Justice Pitney in Hill v. Adams Express Company, 74 N. J. Law, 338, 68 Atl. 94. An examination of the testimony given at the present trial satisfies us that the deficiency of proof thus pointed out was fully supplied by competent evidence. That evidence was that W. S. Scull, acting for the plaintiff in the assertion of her claim, went to the office of the defendant in Camden, where he was referred to the general office of the defendant in New York City, which he visited a number of times, until finally at his request the matter was referred to the Philadelphia office, from which latter office Mr. Scull soon after received a letter, signed "A. J. Town," which stated on its letter head that A. J. Town was the general manager of the defendant in Philadelphia, and in its body showed that the matter under consideration in New York had been by correspondence communicated to the Philadel phia office. Thereupon Mr. Town, in pursuance to such communication, took up with Mr. Scull the adjustment of Miss Ferris' claim, in the course of which the former made certain statements relative to the matter in hand, to whose admission in evidence the defendant objected at the trial. We think that the authority of Mr. Town to represent the defendant was clearly inferable from the proofs, and that the statements ascribed to him were germane to the matter that had been referred to him by the defendant, and hence relevant and admissible in a suit against it growing out of the same transaction. The case for the plaintiff is much stronger than it was in Agricultural Insurance Co. v. Potts, 55 N. J. Law, 158, 26 Atl. 27, 537, 39 Am. St. Rep. 637, and in Smith v. D. & A. T. & T. Co., 64 N. J. Eq. 770, 53 Atl. $18, and presents the exact antithesis of Huebner v. Erie R. R. Co., 69 N. J. Law, 327, 55 Atl. Errors and Appeals. In the same court, in | tion. On the coming in of the report of the King v. Atlantic City Gas & Water Co., 70 N. J. Law, 679, 58 Atl. 345, it was said by way of illustration that "our cases show that where one authorizes another to speak for him he may be confronted by testimony as to what his representative said within the scope of his authority." That is the precise situation here. Town's authorization to discuss the plaintiff's claim with Scull as her representative carried with it the making of such statements and explanations from the defendant's standpoint as were germane either to the denial or the adjustment of her claim; in fine, was essentially an authority to speak for the defendant in the premises. Hence declarations made within the scope of such authority were properly admitted in evidence in a trial against the defendant growing out of the same subject-matter. Finding in none of the reasons filed by the prosecutor any ground for reversal, the judgment of the district court is affirmed. (74 N. J. E. 824) KING v. KING. master advising a decree in favor of the petitioner, the Court of Chancery dismissed the petition. The ground of this dismissal was that there was not sufficient evidence that the petitioner had acquired a residence in this state for two years before her petition was filed; that her declaration that she intended to reside in this state was not accompanied with the selection of any place which she adopted as a residence animo manendi; that she went from place to place within the state and selected no one place as a residence until after the two years began to run. The petition was filed on October 9, 1907. The petitioner came from New York state, where her husband had deserted her, to New Jersey about October 1, 1904. She first went to Newark for a few weeks, then to Montclair until June, then to Europe until October, 1905, then to Lakewood for three or four months, then to Newark again, and afterward to Montclair. So she moved from place to place, remaining for different periods, until she established a residence at Asbury Park. The evidence convinces us. that she left New York with no intention of returning. (Court of Errors and Appeals of New Jersey. It clearly convinces us that she came to New Dec. 23, 1908.) 1. DIVORCE (8 62*)-"DOMICILE" OF PLAIN TIFF. A wife who had been deserted by her husband came from the state of New York into New Jersey in October, 1904, and filed her petition for divorce here on October 9, 1907. She first resided at different places here for the purpose of finding an inexpensive place to live, and finally, but not two years before filing her petition, fixed her residence permanently at Asbury Park. Her intention when she first came into New Jersey, and thereafter continued, was to make her future home in this state. Held, that her residence in this state from the beginning, coupled with her intention to remain here, gave her a domicile in New Jersey within the meaning of the divorce act (P. L. 1902, p. 503), which requires a two years' residence here during the time for which the desertion continued, and a residence continued down to the filing of the petition. [Ed. Note. For other cases, see Divorce, Cent. Dig. § 220; Dec. Dig. § 62.* For other definitions, see Words and Phrases, vol. 3, pp. 2168-2179; vol. 8, pp. 7641, 7642.] 2. DIVORCE (§ 62*)-"RESIDENCE." The word "residence" employed in the divorce statute means "domicile." [Ed. Note.-For other cases, see Divorce, Dec. Dig. § 62.* For other definitions, see Words and Phrases, vol. 7, pp. 6151-6161; vol. 8, p. 7788.] (Syllabus by the Court.) Appeal from Court of Chancery. Action by Florence Maude King against Charles Sanford King for divorce. Judgment for defendant, and plaintiff appeals. versed. Franklin W. Fort, for appellant. Re REED, J. This is an ex parte proceeding to secure a divorce on the ground of deser Jersey with the intention of making this state her home. In respect to her migrations after coming here, she says: "I have gone from place to place in New Jersey for the purpose of seeing which place I would like best before establishing a permanent home. I found it too expensive at Lakewood and åt Montclair, and I found Newark and Asbury Park cheaper." The jurisdictional fact to be established in suits for divorce brought for desertion is that one of the parties shall have been a resident of this state during two years of the time for which the desertion shall have continued, and that such residence shall have continued until the filing of the bill or petition. P. L. 1902, p. 503. It is settled that the word "residence" employed in the statute means domicile, and that to confer jurisdiction upon the courts of this state it is essential that one of the parties shall have been domiciled in this state for the statutory period. McShane v. McShane, 45 N. J. Eq. 342, 19 Atl. 465. Domicile, of course, means a residence in New Jersey, coupled with an intention to remain in New Jersey. It is undenied that, with the exception of a three months absence in Europe, the petitioner was physic ally present in this state for about three years before filing her petition. As already observed, the testimony leaves no doubt in our minds that she lived here with the intention of making her home in this state. The view which led to the dismissal of the petition was obviously this: That while the petitioner was a resident here, and intended to remain within the state, she nevertheless had no fixed intention of permanently re |