Kimball & Nutter v. Am. Express Co.

• Decision Date: 07 March 1911
• Citation: 79 A. 492,76 N.H. 81
• Parties: KIMBALL & NUTTER v. AMERICAN EXPRESS CO.
• Court: New Hampshire Supreme Court

79 A. 492

76 N.H. 81

KIMBALL & NUTTER

v. AMERICAN EXPRESS CO.

Supreme Court of New Hampshire. Grafton.

March 7, 1911.

Transferred from Superior Court, Grafton Comity; Chamberlin, Judge.

Action by Kimball & Nutter against the American Express Company for damages to a shipment of horses. Case transferred from the superior court on plaintiffs' exception to an order for nonsuit. Sustained.

December 8, 1908, the plaintiffs entered into a contract with the defendants for the shipment of 28 horses from Indianapolis, Ind., to Woodsville, N. H. The contract, which was executed in Indiana, provided that the defendants should not be liable as common carriers, and that, their liability for injuries to any one animal, arising from their negligence or that of their servants, should not exceed $75. The horses were loaded in a car furnished by the defendants, who accepted the animals for transportation at a point on the Belt Railroad. When the car was delivered to the connecting carrier, it was found to be so much in need of repair that it was necessary to hold it for 12 hours. The defendants voluntarily undertook to care for the horses while repairs were being made, and sent them to the barn of one Reardon, where they were exposed to the weather and 4 of them contracted pneumonia. It was agreed that, if the plaintiffs are entitled to recover full damages, they should have judgment for $750, with costs.

Smith & Smith (Edgar W. Smith, orally), for plaintiffs.

Drew, Shurtleff & Morris (Mr. Morris, orally), for defendant.

YOUNG, J. It is unnecessary to consider whether the defendants were under any legal obligation to care for the horses while the car was being repaired. By assuming the care of them, it became their duty to do what the ordinary man would have done in that situation, and it is no answer to this action to show that their undertaking was voluntary Edwards v. Lamb, 69 N. H. 599, 45 Atl. 480, 50 L. R. A. 160. Reardon's knowledge in respect to the care given the horses was not the knowledge of the plaintiffs; for he was not their servant, but an independent contractor.

The contract was made, and the act of which the plaintiffs complain was done, in Indiana. The rights and liabilities of the parties, therefore, depend on the law of that state. MacDonald v. Railway, 71 N. H. 448, 450, 52 Atl. 982, 59 L. R. A. 448, 93 Am. St. Rep. 550. As that is understood, a contract by which a common carrier seeks to limit his common-law liability, to be valid, "must...