62 N.H. 514 | N.H. | 1883
The gist of the plaintiff's declaration is for negligence on the part of the defendants in the delivery of a box of poultry, which, as common carriers for hire, they undertook to carry from Conway, in this state, to Haverhill, Massachusetts, and safely deliver to one Merrill. It is obvious that there can be no recovery upon the declaration as it stands, because it is found as a fact that the defendants carried the goods safely to their place of destination, and used all reasonable care in endeavoring to deliver them to the consignee, but were unable to find him. But inasmuch as application to amend may be made at the trial term, and leave probably granted upon terms of indemnity, the case has been considered as if the declaration were in accordance with the facts.
In the absence of any statute upon the subject, the law is now well settled that common carriers may by special contract limit their ancient common-law liability, at least against all risks but their own negligence or misconduct. Squire v. New York Central Railroad Company,
By the receipt or bill of lading delivered to the plaintiff as the contract of the defendants, and which, so far as appears, he took without objections, and to which, in the absence of fraud or imposition, it must be presumed that he assented (Grace v. Adams,
But while as depositaries they were bound to take care of the property, it was only for the accommodation and benefit of the owner and not of themselves, and therefore their liability was for gross negligence only (Smith v. R. R.,
But one other question arises in the case, and that is as to the effect of the plaintiff's failure to give notice of the loss as required by the terms of the receipt.
It has been held in this state that a notice unassented to by the shipper is of no avail to restrict the liability of the carrier (Moses v. B. M. R. R.,
But without regard to these authorities, we think the stipulation as to notice cannot be distinguished in principle from the ordinary condition in insurance policies requiring the insured to furnish preliminary proofs, in case of loss, within a specified time, and to be executed and verified in a particular manner; and the doctrine is well established in this state that where the proofs are furnished within the time limited, and no objection is made to their sufficiency, but the objection to payment is put by the underwriter upon other grounds, all defects in such proofs will be regarded as waived. Taylor v. Ins. Co.,
The report is recommitted.
Exceptions sustained.
CLARK, J., did not sit: the others concurred.