ERROR to the Circuit Court for the Western District of Tennessee.
Caldwell sued the Southern Express Company in the court below, as a common carrier, for its failure to deliver at New Orleans a package received by it on the 23d day of April, 1862, at Jackson, Tennessee; places the transit between which requires only about one day. The company pleaded that when the package was received 'it was agreed between the company and the plaintiff, and made one of the express conditions upon which the package was received, that the company should not be held liable for any loss of, or damage to, the package whatever, unless claim should be made therefor within ninety days from its deliverty to it.' The plea further averred that no claim was made upon the defendant, or upon any of its agents, until the year 1868, more than ninety days after the delivery of the package to the company, and not until the present suit was brought. To the plea thus made the plaintiff demurred generally, and the Circuit Court sustained the demurrer, giving judgment thereon against the company. Whether this judgment was correct was the question now to be passed on here.
Mr. C. A. Seward, for the company, plaintiff in error, citing several cases, [1] as analogous, and more or less bearing on the points, relied especially on Weir v. The Adams Express Company, an unreported case, A.D. 1864, precisely in point, in the old District Court for the City and County of Philadelphia, a court which, though of inferior rank in that its jurisdiction was local, was of high authority in view of its large and weighty concerns, and of the character of its judges, among whom were included at the time Justices Sharswood, Hare, and others, of wide reputation for judgment and learning in the law.
Mr. S. R. Bond, contra, sought to apply to the case the general principles laid down by this court, as to the high obligations of carriers and their inability to absolve themselves by contract from negligence, in Railroad Company v. Lockwood, [2] and relied especially, as more particularly applicable, on The Southern Express Company v. Caperton, [3] a case in the Supreme Court of Alabama, and on The Southern Express Company v. Barnes, in the Supreme Court of Georgia, and reported in 36 Georgia, page 532.
Mr. Justice STRONG delivered the opinion of the court.
Notes edit
- ↑ Riddlesbarger v. Hartford Insurance Company, 7 Wallace, 386; Wolf v. The Western Union Telegraph Company, 62 Pennsylvania State, 83; Young v. Same Defendant, 34 New York Superior Court, 390; and particularly to Lewis v. The Great Western Railway Company, in the English Exchequer, 5 Hurlstone & Norman, 867, where a clause similar to the one under consideration was sustained in a bill of lading.
- ↑ 17 Wallace, 357.
- ↑ 44 Alabama, 101.
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