Illinois Central Railroad v. Bogard

78 Miss. 11 | Miss. | 1900

Calhoon, J.,

delivered the opinion of the court.

Nothing exonorates a carrier from the obligation to deliver the freight in his charge at the point of destination except the act of God or the public enemy, or the condupt of the shipper. Southern Express Co. v. Moon, 39 Miss., 822; Gilmore v. Carman, 1 Smed. & M., 279; Neal v. Saunderson, 2 Smed. & M., 572; Mobile, etc., R. R. Co. v. Weiner, 19 Miss., 725. Of course this rule is subject to modification in cases where loss or damage occurs, occasioned by the nature of the freight itself, nor are we to be understood as holding that the carrier might not be exonerated where the loss was the result of some outside force, vis major, not technically to be classed as that of the public enemy. Aside from this he is an insurer.

The measure of damages for nondelivery is the value of the freight at the place of destination. Jamison v. Moon, 43 Miss., 598. A carrier cannot protect against liability for losses caused by his own negligence. The limit of such contract exemption is as against casualties and accidents which prudence cannot provide against. See the authorities cited in the admirable digest of Messrs. Brame & Alexander, on page 120. The case of Illinois, etc., R. R. Co. v. Langdon, 71 Miss., 146, is not in conflict with the rule, as the concluding clause of it shows’. The record in that cáse discloses no proper proof of value of the cattle, either at the place of shipment or the place of destination. Be this as it may, we now reannounce the true rule to be that a common carrier cannot validly contract for exemption from damages arising out of his own negligence, even to the extent of limiting his liability to account for values at the place of shipment.

Where there is a clause in the contract of affreightment that a claim for damage to cattle shall not be valid unless in writing, sworn to and delivered to the agent within ten days, the carrier cannot avail of it to escape, where, as in this case, its agent was written to, and answered that he had referred it for investigation, and the shipper received two other letters on this subject, and' in none of them was any question made of the claim not being sworn to. We see no reason for not applying the same rule that has been so often applied in reference to proofs of loss in insurance matters, and we do so apply it.

The correspondence mentioned is in evidence undisputed, and the court had the right to treat it as a fact established in instructing the jury.

The most liberal charges were given for appellant, and we cannot properly disturb the verdict on the evidence.

Affirmed.