Brown v. Adams Express Co.

• Decision Date: 13 December 1879
• Citation: 15 W.Va. 812
• Court: West Virginia Supreme Court
• Parties: Brown v. Adams Express Co.

15 W.Va. 812

Brown

v.Adams Express Co.

Supreme Court of Appeals of West Virginia.

Decided December 13, 1879.

1.A common carrier for hire by special contract based on a valuable consideration may exempt himself from his common law responsibilities in some respects, but cannot exempt himself from loss or damage which may in any degree be caused by the negligence or misfeasance of himself or his servants.

2.A common carrier does not by limiting his common law liabilities by special contract thereby become a private carrier; and if loss is sustained, the burden of proof is on him to show, not only that such loss arose from a cause from which he was exempted from responsibility by the terms of his special contract, but also that it arose from no negligence or misfeasance of himself or his servants.

3.A common carrier cannot limit his common law responsibilities by any general notice, though knowledge of such general notice be brought home to the consignor before or at the time he applied to have his goods transported.

Writ of error and supersedeas to a judgment of the municipal court of Wheeling, rendered on the 17th day of June, 1878, in an action of assumpsit in said court then pending, in which C. P. Brown was plaintiff and The Adams Express Company was defendant, allowed upon the petition of said defendant.

Hon. G. L. Cranmer, judge of the municipal court of Wheeling, rendered the judgment complained of.

Green, President, furnishes the following statement of the Case: This was an action of assumpsit brought in the municipal court of Wheeling by C. P. Brown against The Adams Express Company, as common carrier, for damages for the loss of a diamond worth $125.00 which was sent on February 2, 1877, for the plaintiff by the defendant, from Wheeling to Buchanan, Cole & Hull in New York city, the express charges being paid. The declaration was in the usual form, and to it the defendant pleaded non assumpsit, and by consent of parties a jury was waived, and the case submitted to the court; and the evidence having been heard, on June 17, 1878, the court rendered a judgment in favor of the plaintiff for $135.20, it being the value of the diamond which had been lost while in the charge of the defendant, with interest thereon till the time the judgment was rendered. The defendant moved the court to set aside this judgment and grant him a new trial, as contrary to the law and evidence, which evidence was all certified by the court.

The plaintiffs evidence proves that on February 2, 1877, he sent to the office of the defendant, in Wheeling, by his store boy a small package containing an uncut diamond worth $125.00, marked to Buchanan, Cole & Hull, No. 10 Maiden Lane, New York, to be carried by the defendant to New York and delivered to the consignees; that the boy delivered the package to one Kyle, the agent of the defendant, and paid the freight thereon, thirty cents. Kyle did not ask the value of the package, and it was not told him. He gave no receipt for the package and did not offer to give any. The plaintiff was a jeweller and frequently sent packages by The Adams Express Company, most of which were valuable. It was not usual for the defendant to enquire the value of a package, they had never to the knowledge of this boy, who took the packages to them frequently, asked the value but on one occasion, which was the first time he took a package to their office. This package was never received by the consignees in New York. The plaintiff also attempted to prove by two agents of Adams Express Company, whose duty it was to deliver packages in New York to the consignees, that this package had been received at the express office of the company in New York, and had then disappeared, and they suspected a certain person in the employ of the company there of stealing it. This evidence was excepted to, because it was not sufficiently proven that the parties, who made these statements, were in the employ of the company, and if they were, it was not shown that they bad any power to bind the company by their statements. The court overruled these exceptions, and received and considered these statements as evidence.

The defendant's superintendent at New York proved that this package was received by the company in Wheeling and shipped to New York, but never reached there, but the same was lost before it reached New York, in what manner they did not know. The defendant proved by Kyle that the plaintiff's boy did not, as he said, deliver this package to him as an agent of this company, and by another agent ot the company, Merriman, that the boy did deliver it to him on February 2, 1877, that they always asked the value of packages, and those, who deliver the packages do not generally know their value; and that he asked the value of this package, the boy did not know its value and he endorsed the package''value asked and not given," and that the price paid for the express charges was thirty cents; that packages were charged for according to their size and value. For packages which are not valued the charge is from thirty to fifty cents. If the value had been given to this package as $125.00, they would have charged for its carriage and delivery seventy-five cents. He testified that he always asked of this boy of the plaintiff the value of packages, and always asked Turner & Dillon's boy the value of packages sent by them. But this statement both these boys con- tradict. The defendants proved that they exercised a discretion in making charges. They charge the banks less than others and at the value of only $1.14 for a $1,000.00 package;but they charge the same to all persons, except when they have made special contract; charge those sometimes, who ship a great deal, less than those, who ship but occasionally. The plaintiff shipped a great many packages; but they had no special contract with the plaintiff about charges. They also proved that at the time this package was sent the defendant used a bill of lading or receipt for packages which was presented to the court, this is a clause in this printed receipt:

" It is a part of the consideration of this contract, and it is agreed that said express company are forwarders only, and are not to be held liable or responsible for any loss or damage to said property while beino conveyed by the carriers to whom the same may be by said express company entrusted, or arising from the dangers of railroads or river navigation, steam, fire in stores, depots, or in transit, leakage, breakage, or for 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 hereof demand beyond the sum of $50.00, at which the article 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."

And they further proved by the plaintiff himself, that he had frequently seen this bill of lading or receipt used by the defendant and knew of the $50.00 limitation therein; that he never read all these clauses in this form of the bill of lading, as he did not think they amounted to much. He had been a jeweller for twenty-five years, and done business with the defendant during all that time, and always understood that the defendant was responsible for full value of the packages, whether receipt was given or not, if lost by negligence or carelessness cmpany; that the agents of the defendant were not i" habit of asking the value of packages; that in his, the plaintiff's, judgment the thirty cents paid was fully suf ficient for the size and value of this package shipped He knew they carried valuable packages at a less rate The agent of the company expressly states, that he di not offer the plaintiff's store boy a receipt on the day he delivered this package to him, because he knew the plaintiff would not take it.

To this judgment of the circuit court the defendant obtained a writ of error and supersedeas.

C. Boggess, for plaintiff in error, cited the following authorities:

17 Wall. 380; 62 N. Y. 35; 3 Wall. 107; Story Bailments, §§554, 556, 565, 566; 2 Rob. (new) Prac. 529 et seq.; Story Bailments, §§565-568.

George W. Jeffers, for defendant in error, cited the following authorities:

55 Pa. 141; 42 Mo. 88; 43 N. Y. 267; 51 N. Y. 166; 3 Bush 194; 61 111. 184; 111 Mass. 45; 61 N. Y. 592;; 37 Ind. 44; 6 How. 383; I W. Va. 107.

Green, President, delivered the opinion of the Court:

This case presents no difficulty. If we were to exclude from consideration the plaintiff's evidence, which was objected to by the defendant's counsel on the trial, and all of the plaintiff's evidence which was in conflict with the defendant's evidence, the judgment of the municipal court would still be clearly right. Such a mode of considering the evidence by this Court would of course as a general rule be unjust to the plaintiff; but in this case it would make no difference, for on the admitted facts in this case the defendant was responsible for the full value of the diamond it lost. While perhaps a contract,. which fixed the value of this diamond at less than $125.00 might have diminished the responsibility of the defendant, yet no contract, which it could have made, could have relieved it from all responsibility for the loss of this diamond on the facts admitted by it in this case. For while it was decided by this Court in Maslin v. The Baltimore & Ohio Railroad Company, 12 W. Va. 180, that as common carrier for hire the defendant by special contract, based on a valuable consideration, might exempt itself from loss or damage, resulting from inevitable accident, though such act was not the result of the act of God or of the public enemy, yet it was at the same time decided, overruling the case of The Baltimore & Ohio Railroad Company v. Rathbone, 1 W. Va. 87, that it...