Adams Exp. Co. v. Carnahan

• Decision Date: 11 March 1902
• Citation: 63 N.E. 245,29 Ind.App. 606
• Parties: ADAMS EXP. CO. v. CARNAHAN.
• Court: Indiana Appellate Court

29 Ind.App. 606

63 N.E. 245

ADAMS EXP. CO.

v.CARNAHAN.¹

Appellate Court of Indiana, Division No. 2.

March 11, 1902.

Appeal from superior court, Marion county; John L. McMaster, Judge.

Action by Susan E. Carnahan against the Adams Express Company for the value of goods lost in carriage. From a judgment in favor of the plaintiff, the defendant appeals. Reversed.Baker & Daniels, for appellant. McBride & Denny, for appellee.

ROBY, J.

Appellee brings this action to recover the value (found to be $300) of a pair of diamond earrings. Appellant concedes liability to the amount of $100, tendered that sum before suit, and keeps its tender good. The special findings show the execution and delivery at the time appellant received the articles of an instrument in terms, so far as relevant, as follows: “Read the mutual conditions of this contract, to which the shipper agrees by accepting this receipt containing the same. Adams Express Company. No. 180. (Not negotiable.) Millard Ave. Depot, Illinois, Dec. 23, 1897. Received of Mrs. J. C. Tebbetts, 1 package, valued at $100. Marked, ‘Gen. J. R. Carnahan, Indianapolis, Ind.,’-which it is mutually agreed is to be forwarded to our agent nearest or most convenient to destination only, and there delivered to other parties to complete the transportation. The care to be exercised in transporting property, and the reasonable compensation for its carriage, depend largely upon its nature and value; and the company's charges for forwarding are proportioned to the value of the property delivered to it to be forwarded, and to some extent based on that value, which is an important element in fixing its charges. It is part of the consideration of this contract, and it is agreed, that the said express company are forwarders only, and are not to be held liable or responsible for any loss or damage to said property while being conveyed by the carrier to whom the same may be by said express company intrusted, or arising from the damages of railroad, ocean, or river navigation, steam, fire in stores, depots, or in transit, leakage, breakage, or from any cause whatever, unless in every case the same be proved to have occurred from the fraud or gross negligence of said express company, or their servants; nor, in any event, shall the holder thereof demand beyond the sum of fifty dollars, at which the above property forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured by them, and so specified in this receipt, which insurance shall constitute the limit of the liability of the Adams Express Company. *** Freight paid, 35 cents. For the company: H. O. Ellis.” The special findings further show that appellant received a sealed package containing the earrings, marked before its delivery with the address given in the contract; that the person making the delivery was a sister-in-law of appellee; that the earrings had been forgotten and left at her house in Chicago by appellee while visiting there; that appellee, through her husband, requested her to send them to him at Indianapolis; that neither appellee nor her husband saw the contract or knew of its contents until the same was sent to them at Indianapolis; that the package was not opened after it was taken to the express office; and that the contract was all in print, except the following portions, which were written in ink: “December 23, 1897. *** Mrs. J. C. Tebbetts. *** $100. *** Gen. J. R. Carnahan, Indianapolis, Ind. *** H. O. Ellis.” It was further found: That neither said defendant, at the time said contract was executed and delivered, nor its said agent, Ellis, knew what said package contained, nor its value, except that he was informed by the sister-in-law that said package contained a pair of diamond earrings, and was very valuable. That defendant's said agent, for the purpose of fixing the value of said package and the defendant's charge thereon, inquired of her whether the value was $50, and informed her that defendant's charges would be twenty-five cents on that valuation. Thereupon she informed said agent that the package was far more valuable than that, and that such amount would not cover its valuation. To the further inquiry by the agent as to whether she would place the valuation at $100, she informed said agent that he might place it at that amount, but that it was far more valuable than that; and said agent then wrote in said receipt the valuation of $100, and informed her that the charge would be 35 cents for the carriage of the package. That she informed said agent at the time of leaving said package with him that the earrings had been left by mistake at her house by a friend, and that she was returning the same to the owner. That she, in a general way, knew that the defendant's charges were based in part upon the value of the thing to be carried, and increased as the value increased, but the difference in said charges or the ratio of increase to valuation were matters of which she was not informed, nor had she knowledge thereof, but knew that the inquiries of said agent...