American Ry. Express Co. v. American Trust Co.

• Decision Date: 26 March 1931
• Docket Number: No. 4443.,4443.
• Citation: 47 F.2d 16
• Parties: AMERICAN RY. EXPRESS CO. v. AMERICAN TRUST CO.
• Court: U.S. Court of Appeals — Seventh Circuit

47 F.2d 16 (1931)

AMERICAN RY. EXPRESS CO. v. AMERICAN TRUST CO.

No. 4443.

Circuit Court of Appeals, Seventh Circuit.

February 13, 1931.

Rehearing Denied March 26, 1931.

Albert M. Hartung, of New York City, and Arthur L. May, Samuel Parker, W. G. Crabill, and S. J. Crumpacker, all of South Bend, Ind., for appellant.

Fred C. Gause, Samuel O. Pickens, R. F. Davidson, Arthur L. Gilliom, and Owen Pickens, all of Indianapolis, Ind., and Roland Obenchain and Vitus Jones, both of South Bend, Ind., for appellee.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

EVANS, Circuit Judge.

Appellee alleged, and appellant denied, liability for a loss of $9,018 (in currency part of which was silver coin) which occurred when the money was being transported from appellee's bank building to appellant's office in South Bend, Ind. A jury trial was waived and the court made special findings of fact and entered judgment, (D. C.) 42 F.(2d) 272, for the full amount together with interest and costs in appellee's favor.

Material facts are few and not in dispute. Appellant's truck driver called at appellee's bank, and the money ($1,000 in silver half dollars and $8,018 in one and two dollar bills) was placed in appellant's iron strong box which was then locked. The truck had a closed body. A representative of appellee rode on the seat beside the driver. As the truck was driven along the streets of South Bend, it was held up and robbed by unknown persons. The money was never recovered.

Liability depends on whether the money had been delivered to appellant. In other words, had appellant's common-carrier liability as an insurer arisen when the robbery occurred?

The court made special findings of fact which fully covered every issue presented by the pleadings and proof. He found, among other things:

"During the course of said five-year period preceding said 11th day of September, 1928, and while the aforesaid custom and practice of collecting and transporting money shipments existed, viz.: On the 27th day of November, 1926, the defendant filed with the Interstate Commerce Commission of the United States an official express classification * * * which * * * was * * * known * * * as American Railway Express Company Official Express Classification No. 30, I. C. O. No. 3280. That said official express classification * * * remained in full force * * * from * * * January, 1927, up to * * * the 11th day of September, 1928, and thereafter. That said official express classification contained the following provision:

"`Money Classification.

"`A. Receiving Shipments. * * *

"`(5) Packages containing money, bonds, or other securities will be received for transportation only when delivered at the Express Company's office by shippers. Shipments of coin or bullion too heavy to be carried by hand may be called for by wagon, but a representative of the shipper must accompany and retain custody of the shipment until delivered at the express company's office.

"`Exception — At points where wagon service is maintained, express companies, when special request is made by shippers a sufficient time in advance to permit of the necessary arrangements being made, will call for shipments of silver bullion by wagon and receipt for same on the premises of the shipper.'

"That said Official Express Classification was a tariff duly filed by the defendant with the Interstate Commerce Commission, and duly published and posted as required by law.

"11. The provision in said Money Classification that defendant will receive money shipments for transportation only when delivered at its office by shippers and the provision that the custody of the shipment must be retained by a representative of the shipper until the shipment is delivered at said office in instances when called for by defendant's wagon were not observed in practice at South Bend, Indiana up to and including said 11th day of September, 1928. On the contrary defendant's custom and practice of receiving for transportation, and taking custody of, money shipments at the shippers' place of business as hereinbefore described and found continued unchanged after the effective date of said Official Express Classification up to and including the 11th day of September, 1928.

"12. At the time of said robbery the said money was in the custody and control of defendant, and the same had been accepted by defendant, for immediate transportation by express by defendant from plaintiff's said bank at South Bend, Indiana to said Federal Reserve Bank of Chicago, at Chicago, Illinois. Plaintiff's said employee, Bowe, did not retain or have custody of said money on said trip prior to or at the time of said robbery.

"13. At the time of said robbery said money was the property of plaintiff. * * *

"14. In receiving, transporting and handling said money shipment of September 11, 1928, defendant extended to plaintiff no privilege, facility or treatment different from those which it was then, and had for a long time prior thereto been, extending alike to all shippers of money in said city of South Bend, Indiana."

It will be thus seen that the proper disposition of the appeal turns upon the effect of the tariff governing the "Money Classification" filed with the Interstate Commerce Commission as well as the effect of appellant's conduct, long continued, of calling for and transporting the money from the bank to appellant's office.

The holdings which impose or mark the limitations of liability of a carrier to a shipper are too numerous to here require restatement.¹ They all hold that the tariffs filed with and approved by the Interstate Commerce Commission are essential and controlling provisions of the contract between the parties.

But appellee argued that certain tariff provisions may be waived; that among such provisions, which a carrier may waive, is the one which designates the place where shipments may be received. Judge v. Northern Pac. Ry. Co. (C. C.) 189 F. 1014, is cited to support this contention.

There are two answers to appellee's argument: (a) The delivery of the money to the truck driver was, under all the facts and circumstances disclosed in this case, not a waiver of the tariff provision respecting receipt of the money by the carrier as such. (b) The tariff provision necessitating the delivery of the money to the carrier's office is one which could not be waived by the agreement of the parties, nor by a custom,...