Kaiser v. Hoey

McAdam, C. J. As the defendant is liable for the loss of goods intrusted to its care, it is not unreasonable to impose as a condition of recovery that [430] claims for losses must be made within a reasonable time, specified in the contract. Such a provision is in the nature of a condition precedent, is binding on the party who accepts such a contract, and precludes him from recovering without proof that the condition has been performed. Its purpose is to enable the company to search for the missing goods; finding them if it can, and either delivering them to the consignee, or redelivering them to the shipper; and, in case of failure to discover the goods, to place the responsibility for the loss where it properly belongs, that it may seek indemnity from the persons guilty of the wrong. Similiar provisions have been held binding on insurers having claims against insurance companies, (May, Ins. 583,) and there is fully as much propriety in applying the rule to common carriers.' It was so applied in Hirschberg v. Dinsmore, 12 Daly, 429, and the case cited is conclusive against the plaintiff’s right to recover. It is unnecessary to consider whether the contract ought to be interpreted according to the laws of Pennsylvania, for there is no proof that the laws of that state on the subject differ from'our own; and the presumption is that the common law of both states are alike. Waldron v. Ritchings, 3 Daly, 288; Stearns v. Railroad Co., 4 N. Y. St. Rep. 715. It follows that there must be judgment for the defendant. NOTE. Common Carriers—Limiting Liability. Common carriers may by contract limit their common-law liability when the limitation is one reasonable in character, Hart v. Railroad Co., 5 Sup. Ct. Rep. 151, 7 Fed. Rep. 630; The Bermuda, 29 Fed. Rep. 399, 27 Fed. Rep. 476; The New Orleans, 26 Fed. Rep. 44; The Lydian Monarch, 23 Fed. Rep. 298; Grogan v. Express Co., (Pa.) 7 Atl. Rep. 134; Sprague v. Railway Co., (Kan.) 8 Pac. Rep. 465; but a contract is invalid which seeks to relieve it of such liability for its negligence, or that of its servants, Railway Co. v. Harris, (Tex.) 2 S. W. Rep. 574; The Surrey, 26 Fed. Rep. 791; The New Orleans, Id. 44; Rintoul v. Railroad Co., 17 Fed. Rep. 905; May v. The Powhatan, 5 Fed. Rep. 375; Ormsby v. Railroad Co., 4 Fed. Rep. 706; Grogan v.Express Co., (Pa,) 7 Atl. Rep. 134; Rosenfeld v. Railway Co., (Ind.) 2 N. E. Rep. 344; Moulton v.Railway Co., (Minn.) 16 N. W. Rep. 497; Black v.Transportation Co., (Wis.) 13 N. W. Rep. 244; Sprague v. Railway Co., (Kan.) 8 Pac. Rep. 465; McFadden v. Railway Co., (Mo.) 4 S. W. Rep. 689; Railroad Co. v. Riordon, (Pa.) 13 Atl. Rep. 324; or of liability for any degree of such negligence, Ormsby v. Railroad Co., 4 Fed. Rep. 706; Marr v. Telegraph Co., (Tenn.) 3 S. W. Rep. 496. A stipulation requiring the shipper to give notice of his claim for damages before removing the goods is void, Ormsby v. Railroad Co., 4 Fed. Rep. 706; Smither v. Railroad Co., (Tenn.) 6 S. W. Rep. 209; but such a stipulation was held reasonable in Sprague v. Railway Co., (Kan.) 8 Pac. Rep. 465. A railroad company, receiving cattle for transportation as a common carrier, cannot limit its liability to injuries caused by “ gross or wanton negligence, ” nor to that of a mere agent of the consignor in the matter of delivering the cattle to the next connecting road; such stipulations being contrary to public policy. Railroad Co. v. Thomas, (Ala.) 3 South. Rep. 802. Where a railroad bill of lading contains a stipulation fixing the carrier’s liability in case of total loss of the goods, such limitation being in consideration of a reduced rate of transportation, the higher rate being reasonable, and there being no imposition or undue advantage, such stipulation will be upheld, although the goods may have been destroyed in an accident caused by the carelessness of the carrier’s servants. Railroad Co. v. Sherrod, (Ala.) 4 South. Rep. 29.