52 A.2d 277 | D.C. | 1947
Several individuals, trading as Equitable Credit Company, and their agent, one Swett, sued Marchant Calculating Machine Co. for $636, the price of a calculating machine ordered and paid for by Swett as agent of the Credit Company; which machine was alleged not to have been delivered. The Marchant Company, admitting that the machine had been ordered and paid for, answered that it had been shipped through the Railway Express Agency and delivered to Swett. The Marchant Company also filed a third party complaint, naming the Express Agency as third party defendant, alleging that the machine had been delivered to the Express Agency for transportation to Swett, and there had been received from the Express Agency a copy of a receipt showing delivery to Swett and purporting to be signed by him. Judgment was sought against the Express Agency for any sum that might be adjudged against the Marchant Company in the main suit. The Express Agency in its answer asserted that its liability in no event could exceed $150, the value of the machine as declared by the shipper in the uniform express receipt.
The evidence showed that Swett ordered and paid for the machine, directing that it be shipped to him at Room 404, 930 F Street, Northwest, Washington, D. C.; that the machine was delivered by the Marchant Company to the Express Agency in California, express charges prepaid, with instructions to deliver it to Swett at the address stated; that prior to delivery the Credit Company and Swett moved from the stated .address to another address, but did not notify either the Marchant Company or the Express Agency of the change of address ; that when the machine arrived in Washington it was taken by an employee
The single question before us is whether the Marchant Company is entitled to recover $636, the full value of the machine, or $150, the declared value stated in the express receipt.
A memorandum by the trial court stated that the present case is not one of misde-livery but is one “of non-delivery occasioned by the misconduct of'an employee” of the carrier; that the purported signature of the consignee on the receipt is a forgery ; and that the case is controlled by the decision in Adams Express Company v. Berry & Whitmore Company, 35 App.D.C. 208, 31 L.R.A.,N.S., 309. In that case it was held that embezzlement by an employee of the carrier rendered inapplicable the lim-
itation of liability contained in the express receipt. Here there is ho expressed finding that the loss resulted from embezzlement or conversion by the carrier’s employee, but appellee contends that such is the effect of the trial court’s memorandum. Accepting appellee’s contention, there is presented the question whether a limitation of liability protects a carrier when loss is occasioned through embezzlement or conversion by an employee of the carrier.
If the Berry & Whitmore decision is controlling the question must be answered in the negative. That decision has been criticized by many authorities on the ground that it fails to distinguish between a conversion by a carrier and a conversion by an employee of a carrier for his own benefit.
Under the Carmack Amendment limitation of liability is applicable in cases of failure to deliver, whether such failure be deemed a misdelivery or a non-delivery.
Whether the loss in the case before us resulted from conversion by the Express Agency’s employee or from negligence' of the employee, our conclusion is that the limitation of liability based on the declared value of the lost article was effective and that the judgment against the Express Agency should have been limited to $150. The judgment will be modified accordingly and as so modified affirmed.
Modified and affirmed.
Moore v. Duncan, 6 Cir., 237 F. 780; D’Utassy v. Barrett, 219 N.Y. 420, 114 N. E. 786, 5 A.L.R. 979 ; Henderson v. Wells Fargo & Co. Express, Tex.Civ.App., 217 S.W. 962; Illinois Cent. R. Co. v., Fontaine, 217 Ky. 211, 289 S.W. 283, 52 A.L.R. 1004.
49 U.S.C.A. § 20 (11).
St. Louis, I. M. & S. R. Co. v. Starbird, 243 U.S. 592, 37 S.Ct. 462, 61 L.Ed. 917 ; Southern R. Co. v. Prescott, 240 U.S. 632, 36 S.Ct. 469, 60 L.Ed. 836; Adams Express Co. v. Croninger, 226 U. S. 491, 33 S.Ct. 148, 57 L.Ed. 314, 44 L. R.A.,N.S., 257.
Southern Express Co. v. Byers, 240 U. S. 612, 36 S.Ct. 410, 60 L.Ed. 825, L.R.A.1917A, 197, and cases' there cited.
Union Pacific R. Co. v. Burke, 255 U. S. 317, 41 S.Ct. 283, 65 L.Ed. 656; Peyton v. Railway Express Agency, Inc., 316 U.S. 350, 62 S.Ct. 1171, 86 L.Ed. 1525.
Georgia, F. & A. R. Co. v. Blisli Milling Co., 241 U.S. 190, 36 S.Ct. 541, 60 L. Ed. 948; Adams Express Co. v. Cronin-ger, 226 U.S. 491, 44 L.R.A.,N.S., 257; American Ry. Express Co. v. Levee, 263 U.S. 19, 44 S.Ct. 11, 68 L.Ed. 140; Missouri Pac. R. Co. v. Boone, 270 U.S. 466, 468, 46 S.Ct. 341, 70 L.Ed. 688. See also Bank of California v. International Mercantile M. Co., 2 Cir., 64 F.2d 97, certiorari denied, 290 U.S. 649, 54 S.Ct. 66, 78 L.Ed. 563, and Vaughn & Vaughn v. Quincy, O. & K. C. R. Co., Mo.App 123 S.W.2d 569.
Georgia, F. & A. R. Co. v. Blish Milling Co., 241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948.
American Ry. Express Co. v. Levee, 263 U.S. 19, 44 S.Ct. 11, 68 L.Ed. 140.
American Ry. Express Co. v. Lindenburg, 260 U.S. 584, 43 S.Ct. 206, 67 L. Ed. 414.
Southeastern Express Co. v. Pastime-Amusement Co., 299 U.S. 28, 57 S.Ct. 73, 81 L.Ed. 20.