W. & S. Jacobson & Co. v. Adams Express Co.

Bradbury, J. We think the testimony shows that the conditions required by the defendant in regard to the presentation of the claim and receipt in 30 days were waived by them. We do not find that the plaintiff was guilty of any fraud by the mere fact of silence in regard to the value of the seal sidn sack, at the time it was delivered to the company. There are decisions of courts of high authority which require the carrier to make inquiry of the shipper as to the value of the goods, if he deems the value material. If the owner at the time of the delivery of the goods should, by statements or conduct, deceive the carrier this would present a different case, and might be a bar to a recovery; but we do not think that mere non-disclosure of the value of the article, in Ohio, constitutes a fraud. There is no doubt of the truth of the general proposition that the laws of the country have no binding force beyond its territorial limits and their authority is admitted, not “ ex-proprio vigore,” but, “ ex. comitate.” 2 Kent, 457. Therefore, a court sitting in Ohio, and bound to minister the laws of Ohio, cannot be expected to adopt and enforce the laws of another state, unless compelled to do so by some cogent reason. If there is a conflict between the laws of this state and those of another state, when a contract is sued on here, which was made in the latter state, we should expect to have cause shown'.why the laws of Ohio should not be followed. In a case decided by the. highest court of the state of New York (Curliss v. D., L. & W. R. Co., 74 N. Y., 116), baggage was delivered to the said railroad company at Scranton, Penn., for carriage to the city of New York. The baggage was lost.' It was held that the contract was not affected by a statute of Pennsylvania limiting [386] the carrier’s liability. The court said: “ One of the rules applicable to the subject, is that the lex loci contractus is to govern unless it appears upon the face of the contract that it was to be performed in some other place, or made with reference to the laws of some other place, and then the rule of interpretation is governed by the law of the place. Dyke v. Erie R. R. Co., 45 N. Y., 113; s. c., 6 American Rep., 43; Sherrill v. Hopkins, 1 Cow., 103. The place of delivery was a material and important part of the contract, and until such delivery, the same was not completed and fulfilled. Upon a failure to deliver the baggage to the plaintiff, in the city of New York, there was a breach of contract; and as the final place of performance was in that city, it would seem to follow, that within the rule laid down, the contract was to be governed, at least so far as a delivery is concerned, by the laws of New York. This certainly was to be in a different place from where the contract was made, and it is a reasonable inference that it was in the contemplation of the parties at the time, and that it was entered into with reference to the laws of the place where it was to be delivered.” “ So, also, when it appears that the place of performance was different from the place of making the contract, it is to be construed according to the laws of the place where it is to be performed. Sherrill v. Hopkins, supra, 108, and authorities there cited; Thompson v. Ketcham, 8 Johns., 189; 5 Am. Dec., 332; 4 Kent’s Com., 459. The place of final performance of the contract being in the city of New York, although the transportation was mostly through other states, no reason exists, why a failure to deliver the baggage should not be controlled by the laws which prevail at the place of delivery. It is said that the contract is entire and indivisible, and we are referred to some cases outside of this state, which, it is claimed, sustain the doctrine that the locality where the contract was made, in cases of this character, must control. None of the cases cited are entirely similar to the one at bar, and they do not involve the precise point now considered. But even were it otherwise, they are not, I think, controlling, as no reason exists why a contract to deliver baggage should not be governed by the laws of the place, where the baggage is to be delivered.” [387] We are of the opinion that the law is correctly stated in the foregoing decision, and upon this subject, we have- no difficulty in arriving at the conclusion that the place of delivery, in the present case, was the place of performance of the contract, and that the law of Ohio and not the law of New York must control. In regard to the question whether a common carrier may restrict his liability for fraud or negligence, we think the law of New York is different from the law of Ohio. The policy of our decisions seems to be decidedly against any such restriction. In Gains v. U. T. & Ins. Co., 28 O. S., 437, Judge Johnson said: “ It is settled in Ohio: 1. That a special exception of the liability of common carrier of goods for any loss which may arise from fire, happening without his neglect or fault, may be lawfully created by special contract between the parties, though it cannot be made by general notice known or unknown to the party engaging the services of the common carrier. Davidson v. Grayham, 2 Ohio St., 131; Grayham & Co. v. Davis & Co., 4 Ohio St., 362; Welch v. P., F. W. & C. R. R., 10 Ohio St., 65; C., H. & D. R. R. Co. v. Pontius, 19 Ohio St., 221. 2. “ That while a common carrier by a special contract with the owner of the goods entrusted to him may so far restrict his common law liability as to exonerate himself from losses arising from causes over which he had no control, and to which his own fault or negligence in no way contributed, he cannot relieve himself from responsibility'for losses caused by his own negligences or want of care or skill,,and the burden of proof is upon the carrier, to show not only a loss within the terms of the exception, but also the proper care and skill were exercised to prevent it.” Grayham & Co. v. Davis & Co., 4 Ohio St., 362. There was no special contract in the present case, but a general notice contained in the receipt, and we have considerable doubt whether Lyon Brothers could delegate their authority to Friedlander & Casper to make a special contract, if one had been made. [388] In Gault v. Adams Express Co., 48 Am. Rep., 746, an action was brought against a common carrier for the loss of certain packages, and the receipt given in that case was like the receipt given in the present case. It provided that in case of loss or damage by the fraud or gross negligence of the company the holder should not demand beyond the sum of $50, at which the article forwarded, etc. The court said, “ that inasmuch as this condition undertakes to provide against liability for loss or damage arising from gross negligence, the legal effect of that part of it which speaks of value is not to ascertain and adjust the value of the property, but to limit the damages — the penalty to which the law would have subjected the carrier on account of his fault. By tendering such a condition the carrier substantially says to the shipper : < * * * * J propose to exempt myself from so much of the liability as exceeds $50, by assuming that the actual damages to you occasioned by my fault is only $50, and this I propose to do by assuming that the article is worth only $50.’ This is not in good faith a valuation of property. * * * * The meaning of a clause which operates only in this way is not to be changed by giving it an arbitrary name.” We think the court erred'in giving the plaintiffs judgment for only $50, and it will be reversed.