American Ry. Express Co. v. Pitts

91 So. 570 | Miss. | 1922

Ethridge, J.,

delivered the opinion of the court.

The appellee, trading as the Southern Fur & Hide Company, shipped a consignment of two bales of raw furs C. O. D. to Brown Bros. & Co., Chicago, Ill. The shipment was made from Meridian, Miss., April 21, 1920. According to the plaintiff, a card was attached to the shipment directing the consignment to be returned after five days if not delivered. The furs were consigned at the value of one thousand nine hundred and twenty-seven dollars, which the plaintiff says was the market value of them. They were bundled and burlapped in the manner required by the express company, and the shipment was marked, “Raw furs.” According to the evidence, it would take about three days for the shipment to reach Chicago. The goods were not called for at Chicago by the consignee, and the express company sent a postal card to the consign- or stating the fact of nondelivery with notation that consignee would call. This card was not properly addressed to the consignor at his address 507 Twenty-Fifth avenue, Meridian, Miss., but 'was addressed to him at 507 Twenty-Fifth street, Meridian, Miss., and for some reason was not received by the consignor until the 9th day of May. On the 10th day of May the appellee, the consignor of the shipment, gave written notice to the consignee at Chicago that if the shipment was not taken out within three days after receipt of that letter to return the shipment to Meridian, Miss. The shipment was not returned in accordance with said direction, and on the 19th day of May the plaintiff telegraphed the express company at Chicago with reference to said shipment. Thereafter on the 24th day of May the plaintiff wrote the express company again demanding a return of the shipment and notified the express company that it would be held liable for damages if it was not properly returned. The shipment was not so returned. and the plaintiff employed an attorney, who on the 10th day of June wrote a letter to the express company demanding the immediate return of -the shipment. The shipment was returned on the 14th day of June to Meridian and tendered to Pitts, who declined to receive it unless allowed to inspect the shipment. I-Ie was permitted to inspect the-shipment and learned from inspection that the hides had become infected with worms and also had become grease burned, and their value largely destroyed, besides the market for the season had closed at that time. The shipper refused to receive the bundles in their then condition, except he offered to take them and handle them for the express company’s account.

According to the plaintiff’s version of the transaction, the company elected to retain the furs until the market opened again so as to procure a better' price than could be procm*ed on the then market. After the shipper refused to accept the furs in their condition, the express company consulted a dealer in furs as to the best disposition to make of the furs, and this dealer advised the company to have the worms knocked out and the furs placed in cold storage, which was done, but the furs were never sold by the express company or taken out of storage until at the date of trial. The proof shows that the insects which infect the hides with worms begin to operate the latter part of May or the first of June and continue through the summer months. It further shows that it is not' necessary to have the furs in cold storage in the winter months. On the trial the express company produced the furs in court and tendered them to the plaintiff, who refused to receive them unless the express company would consent that they be sold and the purchase price be paid in court subject to the determination of the litigation, which offer the express company did not agree to.

It is contended by the appellant that it should have had a peremptory instruction, because the damage to the furs was caused by inherent defects in the shipment. And paragraph 4 of the bill of lading contained the following stipulation:

“Paragraph 4. Unless caused in whole or in part by its own negligence or that of its agents, the company shall not be liable for loss, damage or delay caused by—

“(a) The act or default of the .shipper or owner.

“(b) The nature of the property, or defect or inherent vice therein.

“(c) Improper or insufficient packing, securing or addressing.”

The proof shows that the shipment, if promptly delivered, or in the absence of delivery if promptly returned, would not have been infected with the worms in question and that the furs could have been sold to other buyers. The express company in Chicago notified the consignee by written notice and afterwards sent the consignment to the office of the consignee who noted that on the bill, “Will call.” It fails to show any further effort to deliver the goods or to return them, but contends that there was no card attached to the shipment when it reached them directing such return. The proof of the plaintiff shows that when the goods was delivered to the express company such notice Avas attached to the shipment.

After the receipt of the notice of May 10th to the Chicago office, no effort seems to have been made to either deliver the shipment or return it to the consignor. The Chicago office did not have apparently in its files the correspondence as the deposition of its employees shoAVS. The deposition shows the consignee BroAvn Bros. & Co., Avas closed a good part of the day each day, but it does not show any effort on the part of the express company to find BroAvn brothers at their office during their business hours, nor was the shipment returned in accordance with instructions, nor is there any reasonable excuse shown for failure to return the shipment.

It is further contended that when the shipment was returned it was the duty of the consignor to take the shipment unconditionally and dispose of it to the best advantage so as to minimize its damage, and, if this Avas not done, that the plaintiff cannot recover, and the authority of New Orleans, J. & G. N. R. R. Co. v. Tyson, 46 Miss. 729, is relied upon to sustain this position, as is also 10 C. J. 307, section 444.

The evidence on the part of the plaintiff shows that the company agreed or rather elected to retain the shipment and hold for a better price than to let the plaintiff sell the furs to the best advantage and hold them for the difference. And if this be true and the jury by its verdict accepted it as being true, the rule stated would not prevail. The evidence shows at the time the shipment was returned to Meridian that there was no market for the furs and in addition the shipment was badly damaged. To have sold the furs at that time would have been practically to destroy all value and result in practically a total loss to one party or the other.

The rule is stated in 10 C. J., p. 307 et seq.:

“Also it has been held that a consignee of goods which are of little or trifling value and unsalable may refuse to accept them when tendered after a negligent delay in transportation thereof, and may recover damages in the statutory penalty for failure to adjust and pay the claim within the statutory time after filing thereof.”

In the present case the value of the goods in their damaged condition is so slight compared to their original value and the market was closed so there could be but little hope of realizing anything at the time the shipment was returned to Meridian; but, whatever may be the correct rule as to the duty of the plaintiff to take the shipment unconditionally and sell it for the purpose of diminishing his damages and suing for the difference in the market value, under the circumstances here disclosed, the rule can have no operation where the express company elects to retain the shipment and dispose of it at a later time for a better advantage. We think the contentions of the appellant on the facts in this record are without merit, and the judgment should be affirmed.

Affirmed.