
    Adams Express Co. v. F. Meglernery, et al.
    Common Carrier — Liability of Express Company.
    Where in a suit against an express company for failure to deliver a parcel, the company offers no excuse for its failure to deliver the package, the court properly instructed the jum' to find for the plaintiff for the full value of the package.
    Burden of Proof.
    When a suit is brought against an express company for failing to deliver a package, and the failure is proved, the burden to show the terms of the contract fixing the value of such package is on the company, and when it fails to aver and prove such contract the plaintiff is entitled to recover the actual value of such package.
    APPEAL PROM HARDIN CIRCUIT COURT.
    March 3, 1877.
    
      C. G. Wintersmith, L. & J. Caldwell, M. & D. Sachs, for appellant.
    
    
      J. C. Poston, J. P. Hobson, for appellees.
    
   Opinion by

Judge Lindsay :

If the express company had offered proof tending to show that the package had been lost or stolen from its agents, without culpable negligence on their part, the court below might have considered and passed on the effect of the clause in the receipt providing that the liability of the company shall not exceed fifty dollars, in cases in which a different and greater sum is not agreed upon. But as the company offered no explanation or excuse for failing to deliver the package in controversy, the court properly treated this as a case of conversion, and properly instructed the jury that the company must pay the full value of the property converted.

A common carrier seeking to escape the common law liability, on account of special contract, must assume the burden, and must aver and prove the necessary facts to establish the contract excuse.

Judgment affirmed.  