Southern Express Co. v. Owens

• Decision Date: 30 June 1906
• Parties: SOUTHERN EXPRESS CO. v. OWENS.
• Court: Alabama Supreme Court

41 So. 752

146 Ala. 412

SOUTHERN EXPRESS CO. v. OWENS.

Supreme Court of Alabama

June 30, 1906

Rehearing Denied June 30, 1906.

Appeal from City Court of Anniston; Thomas W. Coleman, Judge.

"To be officially reported."

Action by C.J. Owens against the Southern Express Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. J Willett, for appellant.

Blackwell & Agee, for appellee.

DENSON J.

This litigation arose from the failure of the defendant to deliver to the plaintiff certain goods that were delivered to the defendant as a common carrier at Columbia, S. C., to be carried to Sumter, S. C., to be there delivered to the plaintiff, the consignee. The complaint is in Code form. Code 1896, p. 946, form 15. The description of the goods in the complaint is sufficiently definite to put the defendant on notice as to the particular package on which defendant's alleged dereliction was predicated. Hence the demurrer to the complaint was properly overruled.

It appears from the record that there was no controversy about the facts that the goods were received by the defendant as alleged and that they were never delivered. In other words the liability of the defendant was conceded, but it sought to limit its liability to $50. Pleas 2 and 7 presented this defense. Manifestly the contract sued on is a South Carolina contract. For this reason it is insisted by the appellant that the contract with respect to the liability of the defendant should be construed as such contracts have been construed by the Supreme Court of that state; in other words that in declaring the substantive law of the case we should be governed by the adjudications of that court. This insistence invokes the doctrine of lex loci contractus, a doctrine which is well established and adhered to in this state. "Parties are presumed to be conversant of the laws of the country in reference to which they contract, and to stipulate with regard to them; and it is a maxim, that 'locus contractus regit actum,' unless the parties have manifested a contrary intention." Hanrick v Andrews, 9 Port. 25; Peake v. Yeldell, 17 Ala. 636; Thomas v. De Graffenreid, 17 Ala. 609; Camp v. Randle, 81 Ala. 240, 2 So. 287; Sou. Ry. Co. v. Harrison, 119 Ala. 539, 24 So. 552, 43 L. R. A. 385, 72 Am. St. Rep. 936.

But the doctrine and maxim can be invoked only by appropriate pleading, followed by proof, of the laws of the foreign jurisdiction. We cannot take judicial knowledge of the decisions of the courts of other states. Cubbedge v. Napier, 62 Ala. 518; Varner v. Young, 56 Ala. 260. The South Carolina decision relied on by the appellant was not offered in evidence in the court below, and we cannot regard it as evidence here. "It can be consulted by us, as we could consult the opinion of any other reputable Supreme Court of a sister state; but it does not bind us as an adjudication." Varner v. Young, supra. The contract, then, must be construed by the principles of the common law, and in the absence of pleading and proof to the contrary we will presume that the common law on the subject in South Carolina is the same that it is in Alabama. 2 Wharton on Conflict of Laws (3d Ed.) p. 1534; Crandall v. Great Northern R. R. Co., 83 Minn. 190, 86 N.W. 10, 85 Am. St. Rep. 458; Forepaugh v. Delaware R. R. Co., 128 Pa. 217, 18 A. 503, 5 L. R. A. 508, 15 Am. St. Rep. 672.

The point presented by the pleadings to be determined is whether a carrier may limit the extent of his liability by an agreed valuaation upon consideration of reduced charges for carrying a package, when the agreed valuation is greatly less than the real value of the package, and the contents of the package or its value are not disclosed to the carrier. In the case of A. G. S. R. R. Co. v. Little, 71 Ala. 611, this court said: "The liability of a common carrier is sometimes said to be of a dual nature--the one, a liability for losses by his own negligence or omission of duty, or that of his servants or agents, which is the liability of an ordinary paid agent or his bailee; the other, a liability for the losses by mistake or accident without any fault on his part, for losses accruing by unavoidable accidents, not within the exception of 'the act of God, or of the public enemy, or the fault of the party complaining,' which is of the nature of the liability of an insurer, having its origin and foundation in the policy of the common law. Davidson v. Graham, 2 Ohio St. 131. Whatever doubts may at any time have been entertained, it is now well settled that by special contract the carrier may limit or qualify the liability resting on him as an insurer, or his common-law liability, as it is most often expressed. Steele v. Townsend, 37 Ala. 247, 79 Am. Dec. 49; M. & O. R. R. Co. v. Hopkins, 41 Ala. 486, 94 Am. Dec. 607; M. & O. R. R. Co. v. Jarboe, 41 Ala. 644; S. & N. A. R. R. Co. v. Henlein, 52 Ala. 606, 23 Am. Rep. 578. The limitation of liability may extend, not only to the risks or accidents for which the carrier will be answerable, but to the amount of damages for which he will be answerable in the case of loss or injury, when the purpose appears to secure a just and reasonable proportion between the amount for which he is liable and the freight which he is to receive. In the limitation of liability, the carrier cannot, in any event, stipulate for more than an exemption from the extraordinary liability the common law implies; the liability extending beyond that of ordinary paid agents, servants, or bailees, denominated the 'liability of an insurer.' Public policy and every consideration of right and justice forbid that he should be allowed to stipulate for exemption from liability for losses or injuries occurring through the want of his own skill or diligence, or that of the servants or agents he may employ, or through his own or their willful default or tort."

In the case of Ga. Pac. Ry. Co. v. Hughart, 90 Ala. 36, 8 So. 62, goods were received for shipment packed in a box in apparent good order. A portion of the goods in the box were lost--were not delivered by the common carrier. The bill of lading contained a clause limiting the value of the goods to $5 per 100 pounds in case of total loss; and it was contended on the trial that, if the plaintiff was entitled to a verdict, his recovery should be limited to $5 per 100 pounds of the freight that was lost. The court said: "There is nothing in this contention; for the tendency of the testimony was, and is, that the goods were lost through the negligence or bad faith of the defendant's employés." Then follows the quotation from the Little Case that we have set out above, and the court said of it: "We fully concur in what was said in Little's Case, supra, and hold that the city court did not err in the matter of the measure of recovery." The court further said in the Hughart Case: "It is not our intention to overrule or qualify what was said in S. & N. A. R. Co. v. Henlein, 56 Ala. 368, or in the later case of Central Ry. Co. v. Smitha, 85 Ala. 47, 4 So. 708. In consideration of special rates or privileges granted, a shipper may agree on values in case of loss or injury, provided such agreed valuations are not unreasonable or arbitrary, and provided, further, that no agreement exempting the carrier from the consequences of his perfidy or gross negligence is binding on the shipper. The rate expressed in the bill of lading before us--$5 per 100 pounds--without any reference to the actual value of the thing shipped, is both unreasonable and arbitrary, and is not binding on the shipper."

In L. & N. R. R. Co. v. Sherrod, 84 Ala. 178, 4 So. 29, the case most strongly relied on by appellant here, the bill of lading contained a stipulation limiting the value of the goods and the extent of the defendant's liability in case of total loss. The agreed statement of facts showed that without such agreement as to the value a much greater rate of freight was charged on such shipments than was charged, which rate was reasonable, and that the limitation as to value was in consideration of a reduced rate of freight and was inserted in the bill of lading as a part of the contract of shipment. In that case this court, speaking through Judge Clopton, said: "Limitations as to the value do not come under the operation of the rule that a carrier cannot, by special contract, exempt himself from liability for the consequences of his own negligence, and ordinarily are not calculated to induce negligence. To the amount of the agreed valuation the carrier is responsible for loss occasioned by his neglect, or by any of the risks or accidents for which he is answerable. No public good will be subserved by denying to the parties the right to make such contracts. The shipper and the carrier may lawfully contract as to the valuation of the articles to be transported. Such special contract is in the nature of an agreement to liquidate the damages, proportionately to the compensation received for the carriage and the responsibility of safely carrying and delivery. When the value has been fairly agreed on, the carrier cannot recover a greater rate, and the shipper should not be allowed to take benefit of the reduced rate, if there is no loss, and to repudiate the contract, if there is a loss."

It would seem that in Sherrod's Case, the distinction so clearly made in the Little and Hughart Cases with respect of the dual nature of the liability of the common carrier was lost sight of; for it is clearly held in those cases that, while a common carrier may by contract limit or qualify the liability resting upon him as an insurer, he cannot in any event stipulate for more than exemption from the extraordinary liability the common law imposes. In short, he cannot stipulate for exemption from or...