Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-12-13
SUPREME COURT OPINIONS
September Term - Knoxville,
1870.
Joseph II. HeisI6eII, Attorney Gen
eral and Reporter

Joseph II. HeisIkeII, Attorney GEN
eraI and Reporter.
No. 152.
The Southern Express Company, in error, Va. L
A. Womack.
CARRIER.-FBTIGHT PAID IN ILLEGAL Cur REN-
| CY.-EFFECr-U q common carrier accept gods
TO be carried for hire the fact that the freight was
| paid and accepted in an Illegal currency, would
NOT affect his liability for tie loss OF the goods DJ
negligence.
| EvfDENcE.-AFF1pAv1r OF Loss-B1LL OF Ex-
cEPrIoss.-sn affidavit of the loss Of primary
evidence Is no part Of the evidence submitted to
| the jury, and tho failure to make Il part OF the
bill Of EXCEPTIONS does not negative It's existence,
though the bill purport to contain all the evidence.
Overwhelmingly of property
may be proved by parol though receipt be given,
without accounting r the receipt
| CARRIER-EvIDKkcE TO MAKE QUESTION OF Re-
| srRICTED LIABuITT.-A printed form Ut receift,
generally used by tina carrier, but not used in the
| particular case, and not shown to have been
| known to the employer, does not raiss the ques-
ton Of the power Of carrier to restrict his ia
| bility by contract.
| CARRIER -FREIGHTER--CoNCEALAfFS A per
| son emitting without fraud to state the character
| and contents of packages, fully. may be pre-
Guided from resolving the value Of the articles so
omitted. but his right to recover for articles emu
| merated will not be affected.
| SAME.-WANT OF Observation-Disclosures of
means Of transportation, TO carry articles received
for trauspo taton, is defence to a suit for fail
| uTe or delay to carry them. 1t is questionable
| whether this liability can be mited by contract.
| FAME PUBLIC ENEMY.-UNIrRD STATES WAS.
| In the late civil war the troops of the United
States were "the public enemy" against whose act
common carrier, within the Confederate lines,
| did not insure.
FIom the Circuit Court of Sullivan
county, r. R. Butler, j., presiding.
Deaderick, ] having been of counsel
did not sit in this cause.
j. G. Deaderick, for the plaintiff in er
ror, to show that carrier might restrict
his liability cited Peck 270; Z Yer. $40;
Yer. II; Yer. 4S; Meigs 500;
Swan 456; s Hum. 260; Ang. On Car;
S127. 22O ct seq; l Col. 272, 2S3.
On the effect of concealment he cited
Sto. on Bail. S565.
R. NJ Barton On the same side cited to
show who were public enemies Branner
VS.. Felkner, Ms. Knoxv. 1870, No.
- Smith " Brazelton, Id 2; Red
field ON Railu. p. 5, C. 26, l sub. sec 2;
Smiths Lead. Cas- 365, Ed. of 1866:
Jones VS.. Walker Yer. 427: Craig VS..
Childre=s, Peck 270.
On duty to provide transportation. 2
Redfeld, R. 1Sl, C. 26, s. II.
W. II. Maxwell for defendant in error
insisted that the United States could not
| be regarded as public enemy, citing
ThOrnburg VS.. Harris, Cold. 157; Ham
mond vs.. the State Id. 129. On the duty
to forward whether the consideration
paid was good or not, it being an execu-
| ted consideration, he cited Jones VS..
Thomas. Cold. 465. Ang. on Car.
S. 5S45-6. To excuse carrier the loss
must be by act of God or the public en-
envy. Id S 81, 6S, 1928 and notes,
1856.
Obligation TO provide transportation.
Garter VS. Peck; 4 Sneed pol, eos; E. T.
& Va. R. r. vs. Nelson; ! Cold. 272.
Coneealment Of contents of packages
must be fraudulent to bar right; Angel
on Car. SS25S-9,261 9, 1854 to 268.
johnson W. Stone; II Hum. 4l9; No
tice of claim to limit liability, Aug. on
Car. S. 246-7, $50. Walker VS.. Skipwith.
Meigs SOP, 507, 500 Power of agent,
2 Red. on R. w. sec. IA. Sl64. No. s,
p ll6.
Carrier cannot limit responsibility
Ang. on Car. S238to pa 2 Greenl Ev
S. 215, PIG. Craig VS.. Childreas, Peck
27O. (Turney VS.. Nelson. Hum. $40
is obiter.) Walker VS.. Skipworth, Meigs
5O2: Porterfeld & Brooksvs. Humphreys,
Hum. 497. Manning VS.. Wells, 8
Hum. TAG; johnson VS.. Stone, II Hum.
4l9. Kirkland vs.. Montgomery. ! Swan
ASP; Scruggs VS.. Davis; Head 664.
j. T. Shields, for defendant, as to who
are enemies against whom carrier does
not insure, cited Z Yer. 342; Story on
Bail. S25; 3 Kent. 598; Story on
Contr. S752.
Contract to pay in Conf. notes. Valid
in Virginia, 2 Kent 454.
Carrier cam .trestrict liability by notice
q Wend. 153 and 354; Gould We. Hill.
2 Hill On. " 623; Story on Contr
S760e., and authorities there cited. Hol-
lister Ss NewlaD. 10 Wend 234 Cole
V. Goodwin, Id. 25l; % Wend 459
story on Balm. S554, n; Atwood vs.. Re
lance Trans. Co. Watts (Pa) 81; 1OI
Ohio 145.
He insisted Peck 270; Yer II; Yer
343; Yer. As, 81; should be overruled.
J. r. Cooke, withEhim, cited as to Conf.
notes, ThoTirgton vs.. Smith, Wal. l;
Smith vs. Brazleton, Ms. KnOxv. 1870. |
Authority of agent, Walker vs.. Skipwith,
Meigs, 5O2; Story on Agency 5 -; Paley
on Agency, 1872, ..
OPINION.
This is,an action brought by the defend
ant ia error against the plaintiff in error
as a common carrier for failing TO carry
and deliver a quantity of household goods,
notes, bonds, checks, &C., according to
contract, from Prospect Depot, in Virgin
ia, to Bristol, Tennessee; and in another
count, for failing to deliver said goods at
Lynchburg, Virginia.
The plaintiff recovered in the Court
below, and new trial being refused the
defendant, an appeal in error has been
prosecuted to this Court.
A number of pleas were filed. Upon
some of these there was issue, and to
others q demurrer was sustained. We do
not deem it necessary to consider the
questions raised by these pleadings, for in
our opinion all the defences therein indi-
Gated, so far as they are good in law,
might have been made under the first
plea, which is non assumpsit. We will
therefore, proceed to enquire whether the
plaintiff in error had the full benefit of all
the defences to which he was entitled I'M
der the general issue.
The proof tends to show the following
state of facts: The plaintiff ia error was
q common carrier, in the full, legal sense
of the term, from Richmond, in Virginia,
to Bristol, Tennessee, by way of Lynch
burg. Their mode of transportation was
by railway. Prospect Depot was a way
station between Richmond and Lynch
burg. About the middle of March, 1865,
the boxes containing the goods in question
were delivered to R. V. Davis, the agent
of the company at Prospect Depot, for
transportation to Bristol, the boxes beiog
properly marked. Davis gave Mrs Wom-
ack, the wife of the defendant in error,
receipt, simply acknowledging the receipt
of the goods for transportation, and
received from her the amount of
charges for transporting the goods
to Lynchburg, in Confederate money;
he not being authorized to collect
the charges any further. The
proof further shows, that the
railway trains, upon which the plain
tiffs in error carried freights, continued to
pass daily in the direction of Lynchburg,
with perhaps, some occasional Interrupt
ton, until near the 9TH of April. That
for the first four days after the goods
were received, Davis carried them to the
track of the railroad, as the train passed,
ard rendered them to the Messenger as
he is called, who WIS the agent of the
company, and whose duty it was TO re-
ceive the goods upon the train and for
ward them. That the Messenger declined
10 take the goods on, alleging that he had
no room for them, but would try to take
them next day, after this Davis con-
tinued each day for some weeks, to apply
to the Messenger, to take the goods, but
it was 'put off, from day to day, with
substantially the same reply. That to-
wards the 9TH of April one Thomas Agee