Opinion
(February Term, 1897.)
Common Carriers — Unreasonable Restriction of Liability — Waiver of Stipulation Limiting Liability.
1. A stipulation by an express company contained in its bill of lading that it shall not be liable for loss or damage, unless demand of payment therefor is made within thirty days from the date of the bill of lading, is an unreasonable restriction of its liability.
2. Such stipulation, even if not unreasonable, was waived by stating, in answer to the shipper's demand for the return of the package, that the company was searching for it and, when found, by accepting the shipper's instructions to sell it.
ACTION, tried at January, 1897, Special Term of FORSYTH before Hoke, J., and a jury.
The plaintiff complained for the non-payment of the sum of seven dollars, the value of a package delivered by it to the defendant to be sent C. O. D. to Westville, S.C., from Winston, N.C.
It appeared from the testimony that the package was delivered to defendant for shipment on 28 October, 1892; that the time between Winston, N.C. and Westville, S.C., was two or three days; that hearing nothing of the package, plaintiff ordered its return, whereupon, after tracing it, the defendant located it at Westville and asked for instructions, and on 29 November, 1892, plaintiff sent instructions to sell package for $6 or to return it; that not having any report from defendant, plaintiff made two or three claims or demands for the package, to which no attention was paid until in July, 1893, defendant notified plaintiff that the package had been stolen. Plaintiff then made written demand for the package on 25 July, 1893, which has never been complied with.
Defendant relied upon the statute of limitations and on a stipulation contained in its bill of lading that the company should not be (352) liable for any loss or damage unless the claim therefor should be presented in writing within thirty days after date of bill of lading. His Honor held that the stipulation relied on by defendant was unreasonable, and if not, it was waived by conduct of defendant, and the cause of action having accrued in July, 1893, the action was not barred.
There was verdict followed by judgment for the plaintiff and defendant appealed.
Messrs Jones Patterson for plaintiff.
Messrs. Watson Buxton for defendant (appellant).
The stipulation that the defendant should not be liable for loss or damage, unless demand was made in writing within thirty days from the date of bill of lading, was held an unreasonable restriction of the common law liability of a common carrier and void in Cigar Co. v. Express Co., ante, 348. But, aside from that, the defendant waived this stipulation and is estopped by answering plaintiff's demand for return of the package that it was searching for it, and then, when it was found, accepting plaintiff's instruction to sell the same. It was not until July, 1893, that the defendant notified the plaintiff that the package was stolen. The demand in writing was made within thirty days, and action was brought within three years (The Code, 155, 1) after that date.
No error.
Cited: Mfg. Co. v. R. R., 128 N.C. 283; Deans v. R. R., 152 N.C. 172; Forney v. R. R., 167 N.C. 642.
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