5 Ga. App. 689 | Ga. Ct. App. | 1909
Lead Opinion
(After stating the foregoing facts.)
The facts of the present transaction are so very similar to those involved in the case of Southern Express Co. v. Everett, 37 Ga. 691 (s. c. 46 Ga. 303), as to leave little or no reason for any attempt to distinguish them. In that case (46 Ga. 306) the Supreme Court said: “The carrier has a right to know the value of the article he is asked to carry, that he may take the better precaution to prevent persons from stealing it from him, or to prevent its loss from carelessness. An article of small value presents few temptations to the thief. The company may safely entrust it to less trustful agents, and take less pains to protect and preserve it. Valuable articles ought to be, and usually are, put in a safe and are delivered by the most trustworthy agents into the hands of the consignee. And for this extra care and risk a higher price is charged. The proof here shows that a small article of great value was, either designedly 'or carelessly, put in a common paper box, tied up with a string, and its value, either designedly or carelessly, concealed from the knowledge of the carrier. Who knows why? The evidence does not show; but if there was no special design — if the extra charge was not the thing sought to be got rid of, the gross negligence of the consignor amounts to fraud. It misled the carrier; it put him off his guard. He had a gem in his custody, a thing to be specially ■cared for, and he did not know it; and this want of knowledge was the fault of the consignor.” "This ease has been cited a number of times by our own courts and by the courts of other States. If any doubt existed as to whether merely an inference ■of fraud arises in such cases, so as to leave the question open for the jury, or whether the fraud is as a matter of law presumed, so as not to leave the matter issuable, that doubt was set ■at rest by the decision in the case of Southern Ex. Co. v. Wood, 98 Ga. 268 (25 S. E. 436). Among other things the court said in that case: “The silence of a shipper touching the character •and value of goods contained in a package which does not indicate Hiat its contents are of great or unusual value, or such an im
The argument is further presented by the able counsel for the', express company that, under the act of Congress of June 29, 1906, e. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892), amending the interstate-commerce act of February 4, 1887„ e. 104, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3154), as well as. the act of June 29, 1906, amending the act of Congress of 1903 known as the Elkins act, c. 708, 32 Stat. 847 (U. S. Comp. St. Supp. 1907, p. 880), the contract sued upon was void, because the shipper, by accepting it as an agreement to carry the property at less than its true value, and therefore at less than the rate-hied with the commission, had been guilty of one of the devices-prohibited by those acts. The argument is interesting, but. whether it has validity or only plausibility we do not deem it
Rehearing
ON MOTION FOR REHEARING.
The chief insistence, on the motion for a rehearing, is that the court awarded a reversal, whereas it should have affirmed the judgment with direction that the plaintiff write off from the recovery all but $5, the value at which the express company took the package for shipment. As to the costs of bringing the case to this court (and this point is stressed in the petition for rehearing), to change the judgment as suggested would make no difference; for the plaintiff in error, having substantially won the case in this court, would be entitled to recover the costs, whether there were a judgment of reversal or a judgment of affirmance with direction. However, the express point now presented was before the Supreme Court in the case of Wood v. Southern Express Co., 95 Ga. 451 (22 S. E. 535), and there it was held that the effect of the constructive fraud which arises from the failure to disclose the contents of a package, really valuable but seemingly not so, is not merely to reduce the recovery, but to defeat all right of recovery. At first blush it might seem fair to say that the express company, having received from the shipper