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 оther words, the liability of the defendant was conceded, but it sought to limit its liability to f 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 dictrine 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 re git actum’ unless the parties have manifested a contrary intention.” — Hanrick v. Andrews,
But the doctrine and maxim can be invоked only by appropriate pleading, followed by proof, of the laws of
The point presented by thе pleadings to be detexnnined is whether a carrier may limit the extent of his liability by an agreed valuation upon consideration of reduced charges for carrying a package, when the agreed valuation is greatly less than the real value of tlxe package, axxd the contexxts of the package or its value are not disclosed to the carrier. In the case of A. G. S. R. R. Co. v. Little,
In the case of Ga. Pac. Ry. Co. v. Hughart,
In L. & N. R. R. Co. v. Sherrod,
It would seem than 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 limitation-upon his 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 bailee. The argument urged in the Sherrod Case makes the degree of care requisite in the handling of goods depend, not on the nature of the thing to be carried — which ought to be the test of degree of care to be used by all persons or corporations pursuing the business of common carriers, even where a lawful contract limiting liability exists — but on the amount of compensation to be paid. It is said in that case that contracts by common carriers limiting liability are not ordinarily calculated to induce negligence, but exact from the carrier the measure of care due to the value agreed on. But would it not be a very dangerous rule which permits care to be measured by value? It would lead to a holding that the carrier owes but a slight degree of care when the thing to be carried is of small value intrinsically or by an agreed valuation, and the rule would be as fluctuating as is the value of things carried.
We understand the rule to be universal that the carrier must, even when a valid contract limiting liability exists, exercise such care as prudent persons would ordinarily use for the safety of the thing shipped, looking to the nature of that thing. A different rule would make the measure of care to depend on the adequacy of the sum
Is the limitation in the contract before us Avithin the prohibition of this eminently just and generally accepted principle? Manifestly the stipulation does not contemplate total exemption from liability. It only proA-id.es for partial or limited exemption. Upon that distinction the nice and important question arises: Can a stipulation of the latter character stand before the laAv when one of the former kind cannot? Or, to state the sаme question differently, and so as to apply it more directly to the facts of this case, the rule of Iuav being established, as we have seen it is, that the defendant company could not laAvfully have contracted Avith the plaintiff that it would in no event be liable for any part of the value of the property lost or destroyed, can the limitation of its liability to |50 be upheld in the court, if it
We have examined the authorities relied upon by the appellant, and some of them undoubtedly support its contention. But we think the true rule is, and shоuld be, that a common carrier has the right to restrict his common-law liability by special contract; and this extends to all losses not arising from his own neglect or omission of duty. “He cannot, however, protect himself from losses occasioned by his own fault. He exercises a public employment, and diligence and good faith in the discharge of his duties are essential to the public interest. He is 'held tо that degree of diligence which very careful and priident men take of their own affairs, and he is responsible for all losses arising from a neglect of that degree of diligence enjoined upon him by his
The principle above stated with respect of fraud is not invoked by any of defendant’s pleas. The demur’rer to plea 5 was properly sustained. And there is no error in the rulings of the court with respect to the demurrers to replications to pleas 2 and 7. — Southern Express Co. v. Jones, supra. The demurrer to plea 6 was properly sustained on the authority of Southern Express Company v. Tupelo,
With respect to the nature of the property and its value the plaintiff was the only witness examined, and he testified: “I know the manuscript for the loss of which this suit is brought. There were 400 pages of legal cap paper in it, hand-written (written with pen and ink.) It was bound by a binder whom I had to bind it in a book form. It opened at the end and had a cover on it. In June, 1897, I decided to spend as much time as was necessary in preparing data and in writing the history of the development of South Carolina literature. I went into the libraries all over the state. I studied with older literary men in the state. I had access to the libraries belonging to these men, and can give you the' names if you like. In the manuscript I divided the development of literature into five periods — colonial, revolutionary, state’s rights, secession, and last quarter of the .nineteenth century. I wrote the history of each period,' and gave the lines of the representative writers of each period, and I annotated the choicest productions of these representative writers. I gave three years to the preparation of that manuscript. I closed the work in 1900, when I sent it to the school of graduate studies of the Columbia University, my alma mater. I spent most of my afternons, my time at night, and during most of the time I made repeated trips on Saturday when my college work was over for the weеk to libraries over the state, and spent as much time in these libraries as I could in order to get back to my woiik the following Monday morning.” After testifying as above, plaintiff was asked by his counsel this question: “From the time and labor devoted by you to the preparation of this manuscript, and the contents of it, the matter contained in it, what would you say was the reasonable value of that manuscript?” Objectiоn was made to the question on the ground that it called for testimony that was incompetent, illegal, and irrelevant. The objection was overruled, and the witness answered: “Five hundred dollars for three years, or fifteen hundred dollars.” On cross-
Ordinarily, where property has a market value that can be shown, such value is the criterion by which actual damages for its destruction or loss may be fixed. But it may be that property destroyed or lost has no market value. In such state of the case, while it may be that no rule which will be absolutely certain to do justice between the parties can be laid down, it does not follow from this, nor is it the law, that the plainitff must be turned out of court with nominal damages merely. Where the article or thing is so unusual in its character that market value cannot be predicated of it, its value, or plaintiff’s damages, must be ascertained in some other rational way, and from such elements as are attainable. — Trustees of Howard College v. Turner,
Where the article lost has no market value, the rule of damages seems then to be its value to the plaintiff; and in ascertaining this value inquiry may be made into the constituent elements of the cost to the plaintiff in producing it. — Green v. Boston R. Co.,
There is no error in the record, and the judgment must be affirmed.
Affirmed.