American Trust Co. v. American Railway Express Co., 141.

• Decision Date: 27 June 1930
• Docket Number: No. 141.,141.
• Citation: 42 F.2d 272
• Parties: AMERICAN TRUST CO. v. AMERICAN RAILWAY EXPRESS CO.
• Court: U.S. District Court — Northern District of Indiana

42 F.2d 272 (1930)

AMERICAN TRUST CO. v. AMERICAN RAILWAY EXPRESS CO.

No. 141.

District Court, N. D. Indiana, South Bend Division.

June 27, 1930.

Pickens, Davidson, Gause, Gillion & Pickens, of Indianapolis, Ind., and Jones & Obenchain, of South Bend, Ind., for plaintiff.

Parker, Crabill, Crumpacker & May, of South Bend, Ind., for defendant.

SLICK, District Judge.

This cause was submitted to the court for trial without the intervention of a jury upon a stipulation signed by the parties waiving their right to trial by jury and filed in the cause. A special finding of facts and conclusions of law were requested, and are filed in the cause. By reference to this special finding of facts, the following brief summary is disclosed.

Plaintiff is a banking corporation organized under the laws of the state of Indiana, is a member of the Federal Reserve System in the Chicago district, and its banking house is located in the city of South Bend, Ind. Defendant express company is a corporation organized under the laws of the state of Delaware, is licensed to do business in Indiana, and was at the time alleged in the complaint, and for a long time prior thereto, engaged as a common carrier by express and transporting commodities for hire throughout the United States, and between the city of South Bend, Ind., and the city of Chicago, Ill.

On September 11, 1928, one of defendant's drivers called at plaintiff's banking house, received and took possession and custody of a shipment of money in the sum of $9,018 to transport it for hire to the Federal Reserve Bank in Chicago. The money was placed in a strong box furnished by defendant and deposited in its truck, and defendant's driver, who was armed, placed said money in said strong box, locked the box, and retained the key. While transporting said money between plaintiff's bank and defendant's office, unknown robbers held up the driver, took all of the money, and absconded. The money was never delivered to the Federal Reserve Bank in Chicago. One of plaintiff's employees rode with the driver, intending to go to defendant's office, receive a receipt for the money when it was deposited in defendant's office, and return the receipt to the plaintiff.

The operation on September 11, 1928, was in all respects in conformity with a custom and practice of defendant extending over a period of at least five years, and was a service extended to the public generally in South Bend by defendant covering that period of time. Prior to the 11th day of September, 1928, and while the aforesaid custom and practice of collecting and transporting money shipments existed, defendant filed with the Interstate Commerce Commission an official express classification, known as American Railway Express Company official classification. This classification was in full force and effect prior to and including September 11, 1928, and provided as follows:

"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."

This provision, that defendant would receive money shipments only when delivered at its office and custody retained by the shipper until delivered at its office, was not observed in practice in South Bend, Ind., up to and including the 11th day of September, 1928, but, on the contrary, defendant's custom and practice was to take custody of such money shipments at the shipper's place of business, as was done in the instant case. The money lost was the property of the plaintiff.

On this state of facts defendant earnestly contends that plaintiff is bound by said official express classification, and that any agreement on the part of defendant to accept shipments of money at any other place than as designated in such classification is illegal, not enforceable, and consequently no enforceable obligation can be predicated thereon; that defendant could not accept shipments at any other place than that designated in the classification, and any agreement on its part to accept shipments at other places was illegal and void. Defendant cites a large number of cases which hold that contracts made in violation of a carrier's tariffs are void and not enforceable, but no case is cited by defendant to the effect that no liability can be predicated on a contract to carry because the contract is in violation of the Interstate Commerce Act.

Defendant was liable at common law as a common carrier of the interstate shipment as an insurer. This liability at common law is not changed by the Interstate Commerce Act and its amendments.

In Merchants' Cotton-Press & Storage Co. v. Insurance Company of North America, 151 U. S. 368, at page 388, 14 S. Ct. 367, 374, 38 L. Ed. 195, the Supreme Court of the United States, speaking of an agreement for a rebate, used the following pertinent language:

"We are of opinion * * * that if it the agreement for rebate would not prevent liability on the part of the carrier for the freight received * * *. The law makes such agreements as to rebate, etc.; void, but does not make the contract of affreightment otherwise void; and we think there is nothing in the...