American Ry. Exp. Co. v. Wright

• Decision Date: 10 April 1922
• Docket Number: 22338
• Citation: 128 Miss. 593,91 So. 342
• Court: Mississippi Supreme Court
• Parties: AMERICAN RY. EXP. CO. v. WRIGHT

91 So. 342

128 Miss. 593

AMERICAN RY. EXP. CO. v. WRIGHT

No. 22338

Supreme Court of Mississippi

April 10, 1922

APPEAL from circuit court of Sunflower county, HON. S. F. DAVIS Judge.

Suit by Mrs. Eulalie Wright against the American Railway Express Company. Judgment for the plaintiff, and the defendant appeals. Reversed, and judgment rendered for the defendant.

Judgment reversed.

Moody & Williams, for appellant.

The first question that naturally presents itself, is as to the authority of the agent to bind the company as bailee or otherwise for the care of the furs. The declaration charges that the defendant was engaged in the business of a common carrier for hire in the state of Mississippi, carrying, for hire and reward, express packages tendered to it for carriage, by the public, and that in the conduct of such business it conducted and maintained an office and agent in the town of Shaw, same, being maintained by the defendant for the purpose of receiving and sending express packages for hire and reward.

Rule 51, of the company expressly forbids any of its agents to receive for deposit or safekeeping, checks, certificates of deposit, drafts, notes, papers of value, or any other matter which has no relation to the business of the company . . . or to undertake any transaction in the company's name that does not pertain to the express and the forwarding business.

On these admitted facts it is thus clear that the agent could not bind the appellant by permitting the appellee to let her leave my (her) things there while I (she) ran down to the post office and mailed a package, which "things" she describes as her packages and umbrella and fur. This is also true even though the agent, when asked if she might leave them there, said that was alright. The principles of law applicable to the authority of agents of common carriers is clearly stated in 10 Corpus Juris, 216. If the appellant is liable at all, for the value of the furs, it is perfectly clear that it is not liable as a common carrier or even as a bailee, gratuitous or otherwise.

The appellee did not go to the express office to have transported the fur, for the value of which this suit was brought. She went there to send two packages by express. She made three visits to the express office; on her first visit she desired to send the two packages by express, but at that time they were not received, the question coming up as to whether they should be rewrapped. Therefore, had these packages, not the furs, been stolen, before her second visit the appellant would not have been liable as a common carrier because even these packages at that time, had not been delivered to or accepted by the appellant, 10 Corpus Juris, page 21.

She does not, however, sue for the loss of the packages. She sues for the loss of the furs, which were not even intended for shipment. The defendant--appellant--was engaged in the business of transporting express matter for hire and was thus a common carrier. Mrs. Dolhonde, the agent, had authority to transact business for it of that character, but was expressly forbidden to transact other business. Under some circumstances the appellant, as a common carrier, might be liable as bailee. It cannot, however, be liable except as to property tendered or accepted for transportation.

The fact that the agent was employed by the appellant, and in the performance of her duties, at the time, does not change the rule. The act complained of was not in line with the agent's employment and it was never intended that the appellant, as a common carrier, should have control of the furs when left in its office. It was solely for the accommodation to the plaintiff when the agent permitted, if she did, them to be left on the counter.

The rule relied on has been announced by this court, as to the injuries to the persons, in several cases. Railway Company v. McAfee, 71 Miss. 73; Railway Company v. Harris, 71 Miss. 74; Railway Company v. Latham, 72 Miss. 32; Andrews v. Y. & M. V. Railroad Co., 86 Miss. 129.

It will be noted that this suit is for the loss of the fur, and that the alleged abusive language, in connection with that loss, was introduced to aggravate the damages. The cause of action relied on is not the abusive language, but the loss of the fur. If, however, the suit had been instituted for the abusive language, the plaintiff could not recover, because such abuse did not grow out of any business in which the company was interested, or any business which the agent was authorized to transact, or at a time when the agent was transacting her master's business. The alleged abuse took place on a subsequent visit to the express office, at which time she went to see the plaintiff about the fur. On a prior visit she had gotten her receipt for the packages. Her transaction with the appellant was at an end. Subsequently she again went to the express office to see about her fur. A private matter. It was at this time, and not before, that the alleged abuse occurred.

It is thus clear that the rule announced in Richburger v. American Express Co., 73 Miss. 161, has no application for the reason that, at the time of the alleged abuse, the plaintiff and Mrs. Dolhonde were discussing a private matter in which the company had no concern, and at a time when the plaintiff was not in the office to transact business with the appellant.

LIABILITY AS BAILEE ARGUED BUT NOT CONCEDED. Assuming, for the sake of argument and only for that purpose, that the act of Mrs. Dolhonde, in permitting the appellee to leave her furs on the counter until she mailed a package was the act of the appellant; then the most that can be claimed by reason of that transaction, is that the appellant became a gratituous bailee. Thus far, and only thus far, can it be claimed she acted for appellant. Its liability then must be determined not as a common carrier, but as that of a gratituous bailee.

The question then presents itself; would it be liable for a theft of the furs by one of its employees? The fact that the furs were alleged to have been stolen by the servant, who bound it as gratuituous bailee, is immaterial so far as its liability is concerned. The liability is no greater, by reason of the alleged theft by Mrs. Donhonde, than it would be by that of any other servant. It is the well-established rule in cases of this sort that the bailee is responsible only for gross negligence, the rule being uniform not only in foreign jurisdictions, but as announced by our court.

In contracts of this kind the doctrine seems now to be established both in England America that a mandatory is liable in all cases for gross negligence only. Story on Railments, sec. 181. We recognize the correctness of this rule and shall adhere to it. Lampley v. Scott, 24 Miss. 528.

Regardless of the character of the bailment in this case the defendant was not an insurer of the fur. 3 R. C. L., page 93; Archer v. St. Clair, 49 Miss. 346; Caldwell v. Hall, 60 Miss. 330; Sharborough v. Webb, 59 Miss. 449; Batesville Gin Co. v. Whiten, 50 So. 695; Meridian Fair v. Railway Co., 70 Miss. 808, 12 So. 555.

The question now arises, is the bailee liable for the theft of bailed property by its own servants? We desire to call attention to the well-considered case of Foster v. Essex Banks, 17 Mass. 479, 9 Am. Dec. 168.

The case is in all respects like the one before us, except that the goods were to be kept for hire; and the difference is altogether in favor of the defendants in the present case. To the same effect see Lloyd v. West Branch Bank, 53 Am. Dec. 581; Anna E. Gerrish v. Muskegon Savings Bank, 138 Mich. 46; 4 Am. & English Annotated Cases, page 1083. To the same effect is the English case of Cheshire v. Bailey, 1 K.B. 237; 1 A. and E. Annotated Cases, 94; Railroad Co. v. Hartz, 88 Miss. 42.

We respectfully submit that the evidence does not support the verdict, and that granting the evidence for the plaintiff was true, still it is not a case where the express company is liable, and the judgment should be reversed and judgment entered here for the appellant.

Frank E. Everett, for appellee.

Counsel next takes up the authority of the agent to bind the appellant, and their brief then proceeds along the line that in order to bind the company, the agent would have to have express authority to receive any package in its office, and contend that rule 51 of the company, which was introduced in evidence, which provides that agents are forbidden to receive for deposit or safe-keeping checks, certificates of deposit, drafts, notes, papers of value, etc., expressly prohibits and renders the company harmless for the theft of a package or ail article by the employee of the company, and then counsel branches off on a long theory of the defendant's liability as bailee.

Counsel cites--Railway Company v. McFee, 71 Miss. 73, as authority for the fact that the company is hot liable because the agent was not acting in her capacity as agent when this fur was purloined, so to speak. There is absolutely nothing in that case to help counsel. McFee was a trespasser on the train, riding without paying any fare, and they had a perfect right to put him off. Mrs. Wright was not a trespasser in the office of the express company. She had a perfect right there, and was trying to transact business with the company, and would have transacted that business, and left with her fur secure about her neck had Mrs. Dolhonde not requested that she leave the parcels until her husband returned.

The case of Railway Company v. Latham, 72 Miss. 33 cited by counsel, has no application, because Latham was a trespasser on the train, stealing a ride, and it was the duty of the servants of the company to put him off. Neither has the Railway Company v. Harris, 71 Miss....