American Express Co. v. Beer

• Decision Date: 22 June 1914
• Docket Number: 17455
• Citation: 65 So. 575,107 Miss. 528
• Court: Mississippi Supreme Court
• Parties: AMERICAN EXPRESS CO. v. BEER

65 So. 575

107 Miss. 528

AMERICAN EXPRESS CO. v. BEER

No. 17455

Supreme Court of Mississippi

June 22, 1914

[Copyrighted Material Omitted]

APPEAL from the chancery court of Warren county. HON. E. N. THOMAS Chancellor.

Bill by M. D. Beer against the American Express Company. From a decree overruling a demurrer to the complaint, defendant appeals.

Sections 5 and 7 of the act of the Mississippi legislature of 1914 known as House Bill No. 5, are as follows:

Sec. 5. That it shall be the duty of any railroad company, express company, or any other common carrier, or person, firm or corporation who shall carry any intoxicating liquors into this state or from one point to another within this state for the purpose of delivery, and who shall deliver such intoxicating liquor to any person, company or corporation, to keep a record of such liquor and file with the clerk of the circuit court of the county in which such liquor is delivered, . . . the name and post-office address of the consignor and consignee, the place of delivery, and to whom delivered, and the kind and amount of intoxicating liquor delivered, such statements to be filed within three days after the date of delivery of such liquor.

Sec. 7. That it shall be unlawful for any railroad company, express company, corporation or other common carrier or the agent of any railroad company, express company, corporation or other common carrier, to deliver any intoxicating liquor other than to the consignee; provided in any case where the consignee is unable, on account of sickness of himself or family, to appear in person and sign for such liquor, he may, by written authority, authorize some reputable person to sign and receive same for him; and in no case where there is reasonable ground for believing that any consignment or package contains intoxicating liquors, shall any railroad company, express company, corporation or other common carrier, or the agent of such railroad company, express company, corporation or common carrier, or person, deliver such consignment or package, without having such consignee or his lawful agent aforesaid sign and deliver to the person in whose charge such consignment or package may be for delivery a written statement in substance as follows:

"I hereby certify that my name is ; that my post office is Mississippi; that I am more than twenty-one years of age; that I am the consignee to whom the package containing of intoxicating liquors was consigned at , on the day of , 19 , to be used for (set out the use for which they are to be used). I will not use this liquor in violation of any law of this state.

"Signed and dated at , Mississippi, this day of , 19 .

" , Consignee,

"By , Agent of Consignee."

And in no case shall any railroad company, express company, corporation or common carrier, or person or agent of such railroad company, express company, corporation or other common carrier or person, be liable for damages for not delivering such intoxicating liquor or package supposed to contain the same until such statement is executed and delivered, as herein provided. And in no case shall any such railroad company, express company, corporation, or other common carrier, person, or the agent of any such railroad company, express company, corporation or other common carrier or person, be held liable or subject to the penalties prescribed in this act for delivering such intoxicating liquors or package to the consignee without requiring such statement when such statement is executed and delivered as herein provided, unless the party taking such statement knows the same to be false, in which case he may refuse to deliver such intoxicating liquors or package.

STATEMENT OF FACTS.

The bill filed in the court below alleged in substance, that appellee is lawfully engaged in the wholesale liquor business in the state of Louisiana, having numerous customers living at various points in the state of Mississippi; that appellant is a common carrier engaged in the business of transporting and delivering property from points without the state of Mississippi to points in the state, as well as from and to points wholly within the state; that shipments of liquor from appellee to customers in Mississippi originate in the state of Louisiana, and in the course of transportation are delivered by the initial carrier to appellant for transportation and delivery to the consignees in Mississippi. The bill further alleged that:

"The complainant on the 4th day of April, 1914, having received at his place of business at Delta, Louisiana, an order from W. J. Fletcher, who is over the age of twenty-one and purchaser in good faith who lives at Redwood, Mississippi, for one case of whisky, containing twelve quarts, i. e., three gallons, to be shipped him at the said Redwood, Mississippi, said Redwood station being along the Yazoo & Mississippi Valley Railroad and a place where defendant has an office, whereupon the complainant acknowledging, responding, conforming to, and accepting said orders in good faith shipped through the Vicksburg & Delta Ferry Company, a common carrier engaged in interstate commerce between the state of Louisiana and Mississippi, said case of whisky so ordered which was delivered to and accepted by the said ferry company in a continuous transportation of interstate commerce to be delivered to W. J. Fletcher at Redwood, Mississippi, through said defendant express company at Vicksburg, Mississippi, and that on April 6, 1914, within its usual office hours and according to its rules and regulations, said liquor was tendered the said defendant express company to be transported and delivered to the said consignee at Redwood, Mississippi, as aforesaid. That the defendant company through its agents refused to accept the said package of liquor for transportation and delivery as aforesaid, and gave as a reason for said refusal that it was prohibited from transporting liquor in one shipment when same amounted to more than one gallon and for the further reason that, if accepted and carried, said defendant could not make a delivery of said shipment to the consignee, as it was prohibited from carrying and delivering liquor in shipments of over one gallon by the laws of the state of Mississippi, under that certain act known as 'House Bill No. 5,' and which was approved March 6, 1914, although said shipment and package of liquor was known to the said defendant to be a subject of interstate commerce, and in continuous course of transportation at the time the liquor was tendered to the said defendant, from Delta, Louisiana, to Redwood, Mississippi. That the said defendant agreed to accept the said liquor provided your complainant would make three separate packages of not over one gallon each and thereby make three separate and distinct shipments to the said consignee, but that it could not make delivery even of the three packages unless the consignee would sign and execute as a condition precedent to the delivery a certain receipt as designated and provided for in the said 'House Bill No. 5' of Laws 1914. That the said defendant then and there notified and advised the complainant and the ferry company that it would not thereafter receive, transport, or deliver any package containing malt, vinous, or spirituous liquor contained in packages of more than one gallon in one shipment, and that even if transported could not deliver a shipment of one gallon or less without requiring the consignee as a condition precedent to sign a receipt or written statement as provided for by the said act, 'House Bill No. 5' approved March 6, 1914, without regard to the fact that said shipment hereafter tendered or intended to be tendered to the said defendant was a subject of interstate commerce in due course of continuous transportation thereof or not. . . . That the consignee, W. J. Fletcher, to whom the case of whisky (so tendered to the defendant company), was sold, is one of your complainant's regular patrons, invariably purchasing in case lots. That said consignee is engaged in farming, and your complainant is informed and believes and states the fact to be that W. J. Fletcher is a man of high character and reputation, and he uses the liquor heretofore shipped for his own home consumption, and that the case of liquor so purchased by him from this complainant and refused by the defendant company was intended by said purchaser to be used, as complainant is informed and believes, and so states the fact to be, for his own home and members of his family and is not intended to be used by the said consignee, W. J. Fletcher, in violation of any law of the state of Mississippi, and of this fact your complainant so advised the said defendant express company, but notwithstanding same said defendant wholly refused to accept the said liquor for transportation and delivery as aforesaid."

The bill further alleged that:

"The sole reason why the defendant refused to receive the said case of whisky, and the sole reason why it will hereafter refuse to receive, carry, or deliver any liquor tendered by this complainant or the ferry company in due course of interstate trade and interstate commerce is based upon the idea that defendant is bound to obey the provision and limitation of one gallon and the provision for delivery as provided by the law of 1914, as aforesaid or if it did, to suffer the penalties imposed and prescribed thereunder. . . . Your complainant will further show that the said defendant express company while engaged in interstate business as a common carrier for hire is not required to abide by, obey nor to comply with the several provisions and sections of House Bill 5, Laws of 1914, approved March 6, 1914, aforesaid, and says that in so far as any provision in the act interferes with...