American Express Co. v. Burke

61 So. 312 | Miss. | 1913

Heed, J.,

delivered the opinion of the court.

Burke & McGuire delivered to the American Express Company for shipment a part of a printing press, consisting of a crooked casting, called an arm. It seems that the arm was broken, and that it was necessary to obtain a new one in order to run the press. It was shipped from Yazoo City to C. B. Cottrell & Sons Company, at Westerly, R. I. It was to be used as a model in the manufacture of a new arm. The express company failed to deliver it. This was ascertained when Burke & McGuire asked Cottrell & Sons Company about the return of the new article. Burke & McGuire then notified the express company that the arm had not been received by Cottrell & Sons Company. The express company started tracers, but the arm was not found until about four months after it was forwarded. In truth, it was not located by the express company until suit had been brought by Burke & McGuire.

It is claimed by appellees that the agents of the express company were indifferent and slow in making an effort to locate the arm, and they evidenced a lack of interest in the whole matter, and did not use sufficient diligence. The appellant’s testimony showed that the castings were fastended together with a twine string and had a shipping tag tied thereon, which tag became detached, and that by reason thereof the shipment went astray. The articles were finally found and sent to Jackson, Miss., in accordance with an understanding between the parties. Appellees in their declaration claim recovery for (a) the value of the castings as a model, which was the expense of bringing on a skilled machinist to make a new article; (b) loss of profits, etc., while the press was idle; and (c) exemplary damages. The appellant pleaded, besides the general issue, that the shipment was made under the common express receipt limiting its liability to fifty dollars, except by special notice and contract. Upon the trial of the case a verdict was rendered by the jury awarding appellees damages as follows: (a) Value of the broken castings as a model, one hundred and twenty-nine dollars and ten cents; (b) loss of profits from job printing, eighty dollars; (c) rental value of printing press, eighty dollars; (,d) punitive damages, one hundred dollars.

' We find that the-express receipt given for the shipment contains the following stipulation: “Nor in any event shall this company be held liable or responsible, nor shall any demand be made upon it, beyond the sum of fifty dollars upon any shipment of one hundred pounds or less, and for-not exceeding fifty cents per pound upon any shipment weighing more than one hundred pounds, and the liability of the express company is limited to the value above stated unless the just and true value is declared at the time of shipment, and the declared value in excess of the value above specified is paid for, or agreed to be paid for, under this company’s schedule of charges for excess value.” This is in the body of the receipt. There is plainly printed at the foot of the receipt the following: “The liability of this company is limited to fifty dollars for any shipment of one hundred pounds or less, or to fifty cents per pound for any shipment in excess of one hundred pounds, unless the just and true value is greater, and is so stated in this receipt, and an extra charge is paid or ágreed to be paid therefor, based, upon such higher value.” We also note that there is printed in large letters at'the top of the receipt the following: “Read the conditions of this receipt.” This instrument was not only a receipt, but amounted to a contract between the parties.

This case was tried before the decisions were rendered by the United States Supreme Court in the cases of Adams Express Company v. E. H. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. - -, and Chicago, Burlington & Quincy Ry. Company v. H. Fred Miller, 226 U. S. 513, 33. Sup. Ct. 155, 57 L. Ed. - -, both decided on January 6, 1913. The shipments in these cases were, interstate. The United States Supreme Court held in the above cases that in the provisions of section 20 of the Interstate Commerce Act of February 4,1887 (24 Stat. 386, ch. 104 [U. S. Comp. St. 1901, p. 3169']), as amended by Act June 29, 1906., ch. 3591, sec. 7, 34. Stat. '593' (U.. S. Comp. St. Supp. 1911, p. 1304), Congress had manifested a purpose to take possession of the subject of the liability of carriers for interstate shipments, and that regulations, thereunder had superseded all state regulations on the subject. These cases will control the present case. In the Croninger case, Justice Burton said, in rendering the opinion: “That no inquiry was made as to the actual' value is not vital to the fairness of the agreement in this case. The receipt which was accepted showed that the charge made was based upon a valuation of-fifty dollars unless a greater value should be stated therein. The knowledge of the shipper that the rate was. based upon the value is to be presumed from the terms of the bill of lading and of the published schedules filed with the Commission.” In the Miller case the suit was brought against the railroad company for the value of a stallion shipped. The receipt or bill of lading placed a value upon the animal of two hundred dollars. The plaintiff claimed that he was, in fact, of the value of two thousand dollars, and judgment was rendered for that amount. The supreme court of Nebraska affirmed the case. The United States Supreme Court reversed that decision, and held that the decision in the Croninger case would control. This court has very recently followed the above decisions of the United States Supreme Court in the case of J. F. Jones v. Southern Express Company, 61 South. 165.

■We do not find in this case that there was such gross negligence, or wilful or wanton disregard of its duty, on the part of the appellant to entitle appellees to punitive damages. We do not see that appellant had such notice or knowledge of spécial circumstances attending the shipment which would entitle appellees to special or increased damages by reason of the failure to properly transport and deliver the article.

The trial court in the instructions directed the jury to disregard the stipulations in the express receipt limiting the appellant’s liability to fifty dollars, and declared the same inoperative in the case. ’ In the light of the decisions of the United States Supreme Court, as above stated, this was error. We conclude that the appellees could only recover in the present case the amount stipulated in the contract-fifty dollars.

Judgment is therefore entered here in favor of appellees for that amount.

Affirmed.