177 Ind. 33 | Ind. | 1911
Appellee Byers sued appellant and appellee American Express Company to recover the value of seven chickens that died while being carried by the express eom
There was a trial by the court, special findings of fact, and conclusions of law thereon, and judgment for Byers for $1,000 against the Adams Express Company, and for the American Express Company against Byers for costs. Prom this judgment the Adams Express Company appeals.
The uncontroverted facts are that Byers was a breeder and shipper of fancy poultry. His poultry yards were located near Hazelrigg, a station on the Cleveland, Cincinnati, Chicago and St. Louis Railway, in Boone County, and for years he had made numerous shipments by express from the station. Appellee American Express Company is a common carrier of freight by express, and conducts its business, both state and interstate, principally on the system of railway lines commonly known as the New York Central and Big Pour. On and prior to October 19, 1907, it had an office and an agent at Hazelrigg.
The Adams Express Company is, and for years has been a common carrier of freight by express, and conducts its business, state and interstate, principally on the lines of railroad owned by the Pennsylvania Company. On and prior to October 19,1907, the Adams Express Company had the exclusive express privileges at the exposition grounds of the Jamestown exposition, at Norfolk, Virginia. As a part of the attractions at the exposition, there was a poultry exhibit planned to open on October 22. On October 19, 1907, Byers delivered to the American Express Company, at Hazelrigg, a crate of poultry, consisting of nine black Orpington chickens and three ducks. He instructed the express company’s agent at Hazelrigg to ship the poultry to Indianapolis, Indiana, and there transfer it to the Adams Express Company, to be by it carried and delivered to the superintendent of the poultry department of the exposition at Norfolk, where Byers intended to exhibit the poultry. The poultry department of the exposition had
The agent of the American company at Hazelrigg made the following entry regarding this shipment, in the out-book of the company:
*36 “1 coop. From to Weight Ch’g’s 12 fowls C. S. Byers John A. Murkin, Jr. 180 lbs. $12.60 Prepaid.” Norfolk, Va.
At the time, the agent believed that he was not required, either by law or by the rules of the company, to deliver any receipt or bill of lading to the shipper, nor did he know that it was the rule of the company to present to the shipper a special contract or bill of lading, fixing the value of the property, and limiting the liability of the company when the shipment was to go on ordinary merchandise rates.
At the city of Indianapolis, the transfer agent of the American company made out a transfer receipt and delivered the crate to the Adams company, and at the time presented his transfer receipt, indicating the weight of the crate, the proportion of the express charges to be paid the Adams company, which was $9.50, and also reciting the fact that the poultry was valued at $60; and he stated to the agent of the Adams company, who received the shipment, that the value of the poultry was $5 a head, and that it was in good order; whereupon the agent of the Adams company at Indianapolis took charge of the poultry and signed the transfer receipt.
The Adams company shipped the fowls from Indianapolis to Norfolk, and in the shipment caused seven of the chickens to be suffocated, and they were delivered dead at the exposition grounds. These seven chickens were of the value of $1,000, when received by the Adams company at Indianapolis.
It is contended by appellant, under the above facts, that the American company was the agent of Byers in the delivery of the shipment to appellant, and was bound by the declarations and acts of the American company, in connection with the delivery; that having received the chickens at a valuation of $5 a head, fixed by the American company, appellant is only liable for $35 for the seven dead chickens, and consequently the court erred in overruling the motion
This rule is recognized because one of the necessary incidents to a shipment is to arrange with the carrier to receive the goods. 31 Cyc. 1402. While an agent may not act beyond the scope of his authority, yet, when the appointment has been expressly made in writing, it frequently happens that much of the agent’s resulting authority is implied, because, even where acting under a minutely detailed power of attorney, some item is almost inevitably omitted in drawing the instrument. 31 Cyc. 1335.
In this case the shipper gave no authority to the American company to place a valuation on the chickens. He never ratified the act of the American company in placing a value thereon. The evidence discloses no course of dealing from which such authority might be presumed. The common-law liability of the carrier cannot be limited except by contract with the shipper, express or implied. No such contract is disclosed by the evidence, and appellant’s remedy, if any, is against the American company. There is no error in the record. Judgment affirmed.
Note.—Reported in 95 N. E. 513. See, also, under (1) 6 Cyc. 400; 1 Ann. Cas. 676; 19 Ann. Cas. 806; (2) 6 Cyc. 408; (3) 6 Cyc. 404; 2 Am. Rep. 141; 42 Am. Rep. 664.