Yazoo & M. V. R. Co. v. Blum, 86 So. 805

86 So. 805 | Miss. | 1920

W. II. Cook, J.,

delivered the opinion of the court.

In the circuit court of Warren county, Miss., Mrs. Inez L. Blum, the appellee, instituted suit against the Yazoo & Mississippi Valley Railroad Company, the appellant, for the value of certain articles of wearing apparel and household goods alleged to have been lost in transit from Vicksburg to Chicago., 111., and from a judgment for nine hundred and seventy-eight dollars and seventy-nine cents, the full amount sued for, the railroad company appealed.

The appellee, Mrs. Blum, is the daughter of Mr. M. F. Levy, of Vicksburg, and on the 27th day of January, 1913, she married and removed to Chicago. Prior to her marriage, and while traveling in Europe, she purchased many valuable articles of wearing apparel and household goods Avhich Avere assembled at the home of her father in Vicksburg. After her removal to Chicago these goods and others belonging to her were carefully inventoried and packed in tAvo boxes and delivered to the railroad company consigned to the appellee at her Chicago address, and in due course the two boxes Avere delivered at the home of appellee in apparent good order. The boxes were placed in a securely locked room in her apartment in Chicago and remained there unopened for more than thirty days, and when they were finally opened it was discovered that many of the most valuable articles Avere missing, and the value of. the missing articles is shoAvn to be nine hundred and seventy-eight dollars and eighty-nine cents.

The bill of lading contained the following provision:

“Any carrier or party liable on account of loss of or damage to any of said property shall have the full benefit of any insurance that may have been effected upon or on account of said property, so far as this shall not avoid the policies or contracts of insurance.”

Upon the trial the appellee was the last' witness to testify, and upon her cross-examination it developed that she had insurance on this property, and that she had collected six or seven hundred dollars insurance on ac-' count of this loss. At the conclusion of her testimony the appellee rested her ease, and thereupon counsel for defendant requested permission to set up the fact that appellee had insurance on this property and collecteed about seven.hundred dollars, and under the terms of the bill of lading, if there is a recovery at all, the defendant is entitled to.recoup or offset the amount of recovery, or whatever sum was collecteed from the insurance company, and offered a notice in writing to that effect. Appelllee objected to the filing of this notice, and the record fails to disclose what, if any, ruling was made on this objection, but the court thereupon granted a peremptory instruction for the appeellee for the full amount sued for..

For a reversal of this case the appellant relies principally upon two assignments: First, that the court erred in peremptorily instructing the jury to find for the appellee upon the question of liability, and second the court erred in permitting the appellee to recover from the appellant the sum she admittedly collected from the insurance company under this burglary insurance policy.

The testimony offered on behalf of the appellee gives in great detail the method of handling this shipment. from the time it was packed until delivered to the railroad company at its depot in Vicksburg, and from the time it was taken from the warehouse of the Illinois Central Railroad Company in Chicago until opened in the home of the appellee, and we think the testimony in this regard conclusively demonstrates that the goods were lost or stolen while in the possession of the railroad company, and the act of the court in holding that the defendant was responsible for the loss of the goods was correct..

We think, however, that the court was in érror in denying the appellant the right to .offset against this loss the amount which the appellee had collected from the insurance company on the loss.' The provision of the bill of lading- that the carrier shall have the full benefit of any insurance that may have been effected upon, or on account of, said property is valid,, in the absence of fraud, or of any contract to the contrary with the insurer, and when it developed upon cross-examination of the appellee that she had collected insurance, the apellant shoulld have been permitted to plead this provision in the contract and to claim as an offset the amount of insurance collected.

The validity of provisions in contracts of carriage similar to the one here involved has been settled by numerous decisions of the United States supreme court. In the recent case of Luckenbach v. McCahan Sugar Refining Co., 248 U. S. 189, 39 Sup. Ct. 53, 63 L. Ed. 170, 1 A. L. R. 1522, the court says:

“Such a clause is valid because the carrier might himself have insured against the loss, even though occasioned by his OAvn negligence; and if a shipper under a bill of lading containing this provision effects insurance and is paid the full amount of his loss, neither he nor the insurer can recover against the carrier. Phoenix Ins. Co. v. Erie & W. Transp. Co. 117 U. S. 312 [29 L. Ed. 873, 6 Sup. Ct. Rep. 750, 1176]; Wager v. Providence Ins. Co., 150 U. S. 99, 37 L. Ed. 1013, 14 Sup. Ct. Rep. 55.”

See, also, St. Louis & R. v. Commercial Ins. Co., 139 U. S. 223, 11 Sup. Ct. 554, 35 L. Ed. 154; Jackson Co. v. Boylston Mut. Ins. Co., 139 Mass. 508, 2 N. E. 103, 52 Am. Rep. 728; Mercantile Mut. Ins. Co. v. Calebs, 20 N. Y. 173; Roos v. Philadelphia, W. & B. R. Co., 199 Pa. 378, 49 Atl. 344; 10 Corpus Juris, 515; Joyce on Insurance (2d Ed.), sections 3545 and 3548.

It is insisted on behalf of appellee that the application to file the notice or plea setting up the provisions of this contract of carriage came too late, and for that reason Avas properly denied. It appears from statements in the record that neither counsel for appellant nor’appellee had any preAdous knoAvledge of the fact that the insurance had been collected, and wdien that fact Avas developed on cross-examination of the last Avitness it Avould have been proper to have reopened the case to permit the facts in reference to this defensive.matter to be fully developed.

Since the testimony is uncertain as to the amount of the insurance collected, this case is reversed and remanded.

Reversed and remanded.