Broadwood v. Southern Express Co.

HARALSON, J. — By amendment the second count of the complaint Avas AAdthdraAvn, leaving only the first count Avhich is one claiming of the defendant damages for failure to deliver goods received by it as a common carrier, to be delivered to the plaintiff at Mobile, Ala. The fourth plea sets up, “that under the provisions of the contract made under which the goods were received, it AAras provided that the Great Northern Express Company and eArery other company to whom said property might be delivered or intrusted for transportation, should not be liable for anj^ loss or damage unless the claim therefor should be presented in writing, at the shipping office within ninety days after the date of the receipt, Avith receipt attached to such statement; and defendant alleges, that this was not done, and, therefore, the plaintiff ought not to recover in this action.” This plea Avas demurred to on the ground, that the stipulation in the contract of shipment releasing defendant from liability to plaintiff, unless claim be presented at the shipping office in 90 days after the date of receipt with receipt attached to such statement, is an unreasonable regulation and not binding on the plaintiff. It may be that the plea is subject- to demurrer on other grounds than the one assigned, but Ave can only consider the plea with respect of the specific ground of demurrer assigned. The reasonableness vel non of a stipulation of the kind under consideration' is one of law for the determination [21] of the court. Whatever may he the decisions of the courts of other states and of the Supreme Court of the United States, this court is committed to the proposition that a contract fixing 30 days as the time within which such claims must he presented is not reasonable.—Southern Express Co. v. Caperton, 44 Ala. 101, 4 Am. Rep. 118; Southern Express Co. v. Bank of Tupelo, 108 Ala. 517.18 South. 664; Southern Express Co. v. Owens, 146 Ala. 412, 41 South. 752. But these cases are not conclusive of the question as to whether 90 days should be considered reasonable. On the contrary we have held, that a rule of a telegraph company, that it ivill not be liable for damages or statutory penalties in any case where the claim is not presented in writing within 60 days after the message is filed with the company for transmission, is a reasonable one.— Harris v. Western Union Telegraph Co., 121 Ala. 519, 25 South. 910, 77 Am. St. Rep. 70. It was there held, that the rule did not purport to,- nor did it in effect limit the defendant’s liability for negligence, but only required reasonable notice to the defendant of claims for damages.—See, also, Wolf v. Western Union Tel. Co., 62 Pa. 83, 1 Am. Rep. 387; Young v. Western Union Tel. Co., 34 N. Y. Super. Ct. 390; Express Co. v. Caldwell, 21 Wall. (U. S.) 264, 22 L. Ed. 556. In the case last cited it was said, “Whether their rules (telegraph company rules) are reasonable or unreasonable must be determined with reference to public policy, precisely as in the case of a carrier.” So on the authority of the case of Harris v. Western Union Tel. Co., supra, we hold that the provision in the contract of shipment requiring the claim for damages to be presented within ninety days is reasonable and the demurrer as assigned was propeily overruled: The demurrers to the replications to plea 4 were prop-' erlv sustained. It is true that stipulations stich as the one set up in the plea-may be waived, or the carrier may estop itself from invoking it, as a shield from liability, but neither of the replications is sufficient to show a 'waiver' by the defendant company. This brings us to consideration of plea 5 and the demurrer thereto. That plea is hs follows: “And for fur [22] ther answer to the complaint the, defendant says that at the time of the shipment of said package,the value thereof as given .by the shipper, was stated at $225.00, and that the plaintiff ought not to have and recover of the defendant an amount exceeding such valuation.” It will be observed that no fraud or deceit is alleged as having been practiced on the carrier by the shipper, and under the plea, notwithstanding the failure of the carrier to deliver the goods, may have been the result of its own negligence, and the real value of the goods may have been greatly in excess of the valuation fixed, still the recovery of the plaintiff would be limited to the amount set out in the plea. Under our more recent decisions the demurrer to the plea was well made and should have been sustained.—Southern Ry. v. Jones, 132 Ala. 437, 31 South. 501; Southern Express Co. v. Owens, 116 Ala. 112, 11 South. 752. Plea 2-A set up as a defense to the action, that the name of the consignee of the goods was defectively given in the bill of lading issued for them, and on the package containing them when .shipped. The rule on this subject is, that when it appears that the proximate loss or injury to- tlie goods was the negligence of the shipper in marking or packing them, or in some other respect, the carrier cannot be held responsible.—6 Am. & Eng. Ency. Law, 266, and authorities cited; 5 Ib. 370. It may be that this plea, if tested by proper objections to it, was defective,—a question we do not decide; but it does not appear that it was subject to the demurrer interposed to it, and the same was properly overruled. Plea 2 D was faulty, and was subject to the demurrer, that it contains no matter in avoidance of the fulfillment of its contract as a common carrier of goods, and shows no attempt by notice through the mails or otherwise to effect a delivery of the package. The demurrer to it should have been sustained. It may be added that it is not demurred to on tlie ground, that it assumes that defendant was ignorant of the consignee of the goods, before he left the United States. As this plea is bad, there appears to be no necessity for considering the replications to it. For the error in [23] overruling the demurrer to plea 2-D and plea ■ 5, tbe judgment must be reversed. Reversed and remanded. Weakley, C. J., and Dowdell and Denson, JJ., concur. '