Burlingame v. Adams Express Co.

BROWN, District Judge. The first count alleges a delivery of goods to the defendant as a common carrier and the receipt of the goods by the defendant for carriage as such common carrier, that the goods were addressed to a certain person at San Juan, Porto Rico, and that the plaintiff paid to the defendant its charges for transportation and carrying said goods to the addressee. The first cause of demurrer is that the declaration does not state between what points the said defendant was a common carrier of goods, nor does it otherwise appear how it became or was the duty of said defendant to deliver said goods to said consignee. The contention on demurrer that, as a common carrier is not liable beyond its own lines, the limits of its lines should be stated, is of doubtfui application to this declaration. The defendant is an express company and is charged in the declaration with the receipt of goods in that capacity for carriage to a particular destination. In substance it is alleged that it was a common carrier between the points of receipt and of delivery. A n express company is not, like a railroad, limited to particular lines, but performs its services as carrier by various lines of railroads and other conveyances. See Bank of Kentucky v. Adams Express Company, 93 U. S. 174-182, 23 L. Ed. 872, and Moore on Carriers, p. 35, §9. I am of the opinion that the declaration sufficiently charges, with certainty to a common intent, that the defendant was a common carrier between the point of receiving the goods and the point of destination. The second ground of demurrer relates to counts 6 to 10, inclusive. The counts allege a delivery to the defendant, and it will be sufficient if proof of delivery at either of the places named is presented at the tri [904] al. There is no other ambiguity or uncertainty that is permissible under a videlicet. The third ground of demurrer is addressed to the sixth to tenth counts, inclusive, and is disposed of by what we have said concerning the first cause of demurrer. The fourth cause of demurrer relates to the first, second, third, fourth, fifth, sixth, eighth, ninth, and tenth counts. Upon a reasonable construction the terms “promptly and without delay” must be interpreted to mean “with reasonable promptness and without unreasonable delay”; and as the statement of fact, rather than the statement of legal duty, must be looked at in determining the validity of the declaration, in point of substance, the fourth ground of demurrer is without substantial merit. Demurrer overruled.