126 S.W. 682 | Tex. App. | 1910
Appellant, residing at Tyler, was the owner of a diamond ring worth $275 or $300, in the possession of a Miss James, at Bowie. Miss James placed the ring, with certain photographs and letters, in a pasteboard box about ten inches in width, fifteen inches in length and one inch in depth, and on November 5, 1908, after she had securely wrapped the box with paper, tied it with twine and addressed it, in compliance with appellant's instructions to do so, delivered it to the Wells-Fargo Co. Express at Bowie for transportation and delivery to appellant at Tyler. When the package reached appellant the ring was not in it. He brought his suit to recover the value of the ring against the Wells-Fargo Company Express and the Pacific Express Company, alleging that the ring had "by the carelessness and neglect of the defendants, their agents, servants and employes, been lost, stolen or destroyed while in the custody and care of the defendants." The Pacific Express Company answered, alleging, among other things, that the package when it was delivered to the Wells-Fargo Company Express at Bowie had the appearance of a package of merchandise, and that Miss James represented the same to be of the value of $25; that said Wells-Fargo Company Express received the same under the terms and conditions of a written receipt accepted by Miss James for and on behalf of appellant, and constituting a contract covering the shipment, containing, among other things, a recitation that the charge made by the carrier was based "upon a valuation not exceeding $50 unless *171 a greater value is declared," and stipulating that it should "not be liable in any event for more than $50 unless a greater value is stated herein;" and further stipulating that it should not be liable "for any loss of money, jewelry or valuable papers, unless the same are separately packed, sealed, marked as such and so described herein." Said Pacific Express Company further alleged that charges made by said Wells-Fargo Company Express were made for itself and said Pacific Express Company, and were "based on the valuation of the article or articles to be transported, and articles of a greater value than $50 are charged for at a higher rate than those of less than $50 in value," and that special precautions were taken to safely transport and deliver money, jewelry and small articles of high value. And said Pacific Express Company further alleged that upon being questioned by the agent of the Wells-Fargo Company Express at Bowie as to the value of the package when she tendered same for carriage, Miss James "falsely and fraudulently represented to the Wells-Fargo Company Express that the package contained several articles, none of which were breakable or of special value, and that none of said articles required any special care or attention, and that altogether they were of a value not exceeding $25, thereby inducing the Wells-Fargo Company Express and this defendant, its connecting carrier, to transport the package by ordinary waybill; that if she had stated that the package contained a diamond ring it would have been sent in the special manner used for transporting jewelry, diamonds and money, and the defendant receiving the same would have charged the sender more than the amount that was charged for the transportation of said package, and that by reason of the false and fraudulent representations as to the value of the articles to be transported if delivered to the Wells-Fargo Company Express said contract is null and void as to this defendant, and it is not liable in any sum to the plaintiff herein." Said Pacific Express Company further answered that if it was liable at all to plaintiff he was estopped by reason of the representations as to the value of the package made by Miss James as aforesaid from asserting its liability to be for a sum in excess of $25, or if for a greater sum than $25, then for a sum in excess of $50. Said Pacific Express Company further alleged that the stipulation in the receipt or contract aforesaid exempting it from liability for loss of jewelry, unless the same was "separately packed, sealed, marked as such and so described" in said receipt, was reasonable, valid and binding, and that had the package been marked and described as said stipulation required it would have been "kept in a separate package and transported in a safe, while in the care of defendants, its agents and employes, and the train messengers would have signed a special receipt for said package, and in the event anything had happened to said package to damage, injure or destroy the same this company as well as the receiving company could have checked and located the damage or loss sustained thereto, and by reason of the failure to so designate said package and to so send the same, this defendant has been deprived of the right to trace the package in accordance with its rules, which are reasonable, and plaintiff is estopped from *172 setting up and claiming said package contained jewelry or a diamond ring." The pleadings of the Wells-Fargo Company Express differed little from those of the Pacific Express Company, and need not be here stated.
On the trial the agent of the Wells-Fargo Company Express at Bowie testified that when Miss James presented the package to him for transportation he asked her "what the value of the package was and whether or not there was anything breakable or any reason why the package required special attention," and that she replied "that there were several articles in the package, but that the whole valuation would not exceed $25, and that the package would not require any special attention, as there was nothing breakable in the package." He further testified that he forwarded the package on a "freight waybill;" that he so forwarded it "because it was just a plain, unsealed package with valuation of $25;" that his company shipped all money, jewelry and small packages of high value on "money waybills;" that when a package was to be forwarded on a money waybill he always sealed it up in the presence of the shipper, held it in the safe in his office "until time to take it to the station," when he would take it from the safe and carry it to the station in a haversack and there deliver it to the messenger on the train, taking his receipt for it; that had Miss James informed him (the witness) that the package contained a diamond ring he would have forwarded it on a money order waybill — would have sealed the package in her presence, himself carried it to the train, delivered it to the messenger and informed him that it was a sealed package, and that the messenger would have carried it in the safe in the car provided by the company for such packages. Said witness further testified that the charges demanded of and received from Miss James for transporting the package amounted to twenty-five cents; and that the charges for transporting the package had he been informed that it contained a diamond ring valued at $300 would have been fifty-five cents. Other testimony in the record showed that an article shipped on a money waybill was kept by the company separate from ordinary packages, was carried in a safe, and was checked and receipted for separately by each employe handling it, and that one purpose of this practice was to enable the company to trace same in the event of a loss of the article. The receipt given by the carrier to Miss James recited as a fact that she had declared the value of the package to be $25. Miss James testified that she valued the package at $25 in response to a question asked her by the company's agent as to its value, and further testified as a reason for so stating its value, that she "did not wish anyone to know the contents of the box."
On the ground that the uncontradicted testimony showed that Miss James at the time she delivered the package to the Wells-Fargo Company Express concealed from that company's agents the nature of the contents of the package and misrepresented its value, the court peremptorily instructed the jury to return a verdict in favor of the express companies. The appeal is from a judgment rendered on a verdict in accordance with such instruction. *173 After stating the case as above. — Appellant's contention is that the court erred in peremptorily instructing the jury to return a verdict in appellee's favor.
At common law common carriers were liable as insurers for the loss of money or other valuables accepted by them for carriage, whether bills of lading were given specifying them or not. Houston T. C. Ry. Co. v. Burke,
If, therefore, the action of the trial court in instructing a verdict for appellees is to be sustained, it must be upon the ground that, the testimony being conclusive that the shipper did not disclose to the initial carrier the fact that a valuable diamond ring was a part of the contents of the package and that she made false representations to that carrier as to the value of the contents of the package, as a matter of law the carrier was discharged from any liability on account of a failure on its part to comply with its undertaking to safely transport and deliver the package. We do not think such a result should be said to follow from a mere failure on the part of the shipper to disclose the fact that the package contained a valuable diamond ring. The law seems to be that a duty to disclose the contents of such a package ordinarily does not rest upon the shipper, in the absence of a specific request on the part of the carrier for information as to such contents. 5 Am. Eng. Enc. Law, 349. The inquiry of the agent at Bowie was for information as to whether the package contained anything breakable, or anything requiring it to be given special attention. Her reply that it did not contain anything breakable nor anything requiring such attention, "as there was nothing breakable in the package," can not, we think, be said to have been a false statement of the facts. The record does not show the ring to have been "breakable" in the sense that it was so fragile as to be likely to break if the package containing it was handled with ordinary care. The other feature of the inquiry — that is, as to whether the package contained anything requiring special attention — we think Miss James might very well, as her reply indicated she did, have understood to be in line with the other one — that is, *174 as to whether the package contained anything likely to be injured by mere handling with ordinary care.
As to the effect of the false representations made by the shipper as to the value of the package, the law is not so clear. In the Burke case cited above, the Supreme Court expressed a belief that the statute we have referred to did not "in anywise restrict the operation of the common law rule that when the shipper of valuables practices a fraud on the carrier, either by his acts or omissions, fraudulently concealing the value of the article shipped, the carrier is discharged." We think there is no doubt that the representations made by Miss James must be held to bind appellant to the same extent they would have bound him had he himself made them. Ryan v. Missouri, K. T. Ry. Co.,
If the conclusion reached by us that the representations and conduct of the shipper, while discharging the carrier of its liability as an insurer, did not relieve it of the duty to use ordinary care to safely transport and deliver the package is a correct one, it follows that in not submitting to the jury as an issue in the case a question as to whether appellees used such care or not, and in peremptorily instructing them to return a verdict in appellees' favor, the court erred, and that the error is one requiring a reversal of the judgment. It having been shown by appellant that the package was delivered to and accepted by the carrier for transportation and that it had been lost while in its custody, we think a prima facie case of negligence on its part thereby was established. 6 Cyc., 521-523; Ryan v. Missouri, K. T. Ry. Co.,
The judgment is reversed and the cause is remanded for a new trial.
The motion is overruled.
Reversed and remanded.