Adams Exp. Co. v. Walker

• Decision Date: 22 November 1904
• Citation: 83 S.W. 106,119 Ky. 121
• Parties: ADAMS EXPRESS CO. v. WALKER.
• Court: Kentucky Court of Appeals

83 S.W. 106

119 Ky. 121

ADAMS EXPRESS CO. v. WALKER.

Court of Appeals of Kentucky.

November 22, 1904

Appeal from Circuit Court, Kenton County.

"To be officially reported."

Action by I. L. Walker against the Adams Express Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Maxwell & Ramsey and John R. Schindel, for appellant.

S.D Rouse and Charlton Thompson, for appellee.

HOBSON J.

Appellee Walker, was the owner of an English setter bitch. On November 13, 1902, he delivered her, securely crated with two other dogs, to the Adams Express Company, at Wooster, Ohio, to be carried to Vanceburg, Ky. and there delivered to J. C Walker, his agent. When the crate reached Vanceburg, the bitch was missing, and he filed this suit to recover of the Express Company $250, her alleged value. The defendant, by its answer, denied that it was a common carrier of live stock, or that the bitch was lost by its negligence, or was of value exceeding $25. It also pleaded as follows "Prior to the delivery of said dogs to the defendant, it notified plaintiff that its charges for carrying the same would be based upon the value of the dogs--said value being unknown to defendant--and requested plaintiff to declare the value thereof, in order that defendant might fix its charges; that its charges would be $2.70 if the value of each dog did not exceed the sum of $50, and proportionately greater if the value of the dogs exceeded $50 each; and the plaintiff, in pursuance of said notice and request, then well knowing the value of said dogs, and their value being wholly unknown to the defendant, declared to the defendant that the true value of said dogs did not exceed the sum of $50 each, and on the faith of said declaration, and in consideration of said charge of $2.70, based upon said valuation of said dogs, the plaintiff and defendant entered into an agreement in writing, which was valid by the laws of Ohio, whereby the defendant agreed to carry said dogs from Wooster, Ohio, to Vanceburg, Kentucky, for the sum of $2.70, and the plaintiff agreed to, and did, release and discharge the defendant from all liability for loss of said dogs from any cause whatsoever, unless such loss should be caused by the negligence of the agents or employés of the defendant, and that the defendant should not be liable to the plaintiff, in any event, in excess of $25 on account of the loss of any of said dogs. Said agreement further provided that no suit should be brought against the defendant for recovery for the loss of said dogs unless commenced within six months next after such loss should have occurred, and that, if any suit should be commenced against the defendant after the expiration of said six months, lapse of time should be taken as conclusive evidence against the validity of such claim, any statute of limitations to the contrary notwithstanding." The court sustained a demurrer to this part of the answer. On the trial of the case the following agreed statement of facts was filed: "By consent of parties a trial by jury is waived, and the following facts are agreed to: That the bitch in the petition described was shipped as alleged in the petition; that her value was unknown to the defendant; that a special contract of shipment was signed by the parties; that the defendant held itself out as a carrier of live stock only under the conditions of said special contract, a copy of which is filed as a part of this agreed statement; that the bitch was properly crated; that she escaped from the custody of the defendant somewhere between Wooster, Ohio, and Vanceburg, Kentucky; and that her value was two hundred ($200) dollars." The circuit court entered judgment in favor of the plaintiff, and the defendant appeals.

In Western Union Telegraph Company v. Eubanks, 100 Ky. 591, 38 S.W. 1068, 36 L. R. A. 711, 66 Am. St. Rep. 361, a telegram was sent from Atlanta, Ga., to Franklin, Ky. One of the conditions printed on the back of the message was that no action should be brought for damages unless commenced within 60 days after the message was sent. The court, after laying down the rule that public policy forbids that a carrier should by any contract exempt itself from damages resulting from its own negligence, said in reference to the contract limitation of 60 days for the bringing of the action that it is the province of the lawmaking power to prescribe the time in which an action may be brought, and that the limitation of 60 days, if not an attempt to vary the statute of limitation, would, if enforced, have that effect. This case was approved in Davis v. Western Union Telegraph Company, 107 Ky. 527, 54 S.W. 849, 92 Am. St. Rep. 371, where the court again said as follows as to the limitation of 60 days contained in the contract: "That such a provision, as respects telegrams, is contrary to public policy, and will not be upheld, seems to be indicated in Smith v. W. U. Telegraph Co., 83 Ky. 104, 4 Am. St. Rep. 126, and the rule is authoritatively so announced by this court in Telegraph Co. v. Eubank, 100 Ky. 591, 38 S.W. 1068, 36 L. R. A. 711, 66 Am. St. Rep. 361. It was error to hold that the stipulation presented a valid defense."

It is insisted for appellant that, the contract here having been made in Wooster, Ohio, it must be governed by the laws of Ohio, and that by the laws of Ohio such a limitation is valid. Limitation is governed by the law of the forum in...