Fitzsimmons v. The Southern Express Co.

• Decision Date: 31 December 1869
• Citation: 40 Ga. 330
• Parties: E. N. FITZSIMMONS, plaintiff in error. v. THE SOUTHERN EXPRESS COMPANY, defendant in error.
• Court: Georgia Supreme Court

40 Ga. 330

E. N. FITZSIMMONS, plaintiff in error. v. THE SOUTHERN EXPRESS COMPANY, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1869.)

Common-Carriers. Agency. Before Judge Gibson. Richmond Superior Court. January Term, 1869.

Eleanor N. Fitzsimmons, as trustee for the children of J. Mott Alston, brought case against the Southern Express Company as a common-carrier, and as warehousemen, for the loss of a box of family silver plate, etc., with counts to meet the different phases of the case apparent from the evidence.

There was no question as to title or value. Alston's wife, to whom the lost box belonged, and Alston, transferred their rights therein to Mrs. Fitzsimmons for said children. Alston testified, that on the 11th of February, 1865, at Columbia, South Carolina, he shipped by said Express Company two boxes marked, respectively, "Mrs. E. N. Fitzsimmons, care L. F. Bates, Superintendent Southern Express Company, Charlotte, North Carolina, " and "J. Mott Alston, care of L. F. Bates, Superintendent Southern Express Company, Charlotte, North Carolina;" that they were so marked by *direction of said Bates, and at the time of the delivery he instructed Bates to keep the boxes safely in Charlotte until called for by Alston, and on no account to allow them separated; that Bates agreed to do so; the box marked Fitzsimmons was delivered, the other was not; that he delivered the boxes to the company as a common-carrier, paid $39 25 for freight, and took receipts for them; that he never authorized any one to ship either of the boxes away from Charlotte, except that he sent there for them by an agent, who received the Fitzsimmons box, but was told that the other was sent to Richmond when Charlotte was threatened by the Federal forces. He produced and read in evidence the company's receipt, signed by one McCome, as agent, dated 11th February, 1865, in usual form, (see 38th Georgia Reports, 519,) in which the value of the goods is stated at $10,000 00. It seems to have been conceded that this valuation, and the freight paid, were in Confederate currency, but the value of that currency at that time does not appear by the record. In fact, at that time it took fifty such dollars to buy one dollar in gold.

A witness testified that he called at Charlotte for the boxes under a written request from Alston, in these words: "See Mr. Bates, Southern Express agent at Charlotte, North Carolina, about two boxes, marked J. M. Alston and Mrs. E. N. Fitzsimmons, and ask Mr. Bates to keep them for me till I can send for them. J. M. Alston." And that Bates replied in writing: "Box marked J. M. Alston was forwarded, by order, to Richmond, with General Preston's boxes, as they, the Preston boxes, are now in charge of Major C. D. Milton, at Chester. I presume your box is also."

Another witness testified, that in the fall of 1865, he called, at Alston's instance, on Bates, at Charlotte, North Carolina, for said boxes, got the Fitzsimmons box, and was told that the other had been forwarded to Richmond, as aforesaid. General Preston testified, that he never ordered Alston's box shipped, and that it did not come with his, so far as he knew, he having never seen it.

A letter from R. B. Bullock, Superintendent of said *Company, was read in evidence, in which he said: "A box marked Colonel Alston, is supposed to have been shipped with a lot of other boxes of silver of Colonel Preston, to Richmond, and thence back to Charlotte, " etc. And here plaintiff rested her case.

For the defendant, said Bates testified, that he was the agent of defendant at Charlotte, North Carolina, in the winter of 1865; that a few days before the Federal army occupied Columbia, a gentleman called on him and inquired as to removing valuables from Columbia, South Carolina, to Charlotte, North Carolina, and said he had a box containing silver, of which he desired Bates to take care for him; that he Bates, replied, that he would do the best he could for its safety, and would use the same means as though it were his own; that soon after, two boxes came, accompanied by said gentleman, marked as aforesaid; that the boxes arrived in Charlotte in good order, and he, knowing that the Alston box contained silver, put it, in Charlotte, with the silver of General Preston and Hampton, but not knowing the contents of the box marked Fitzsimmons, he let it stay with the other freight; that Charlotte was threatened by the Federal army, everybody was trying to remove valuables, and General Preston sent an order for his boxes to be sent to Richmond: Bates telegraphed back to Preston, or his agent, "what about the Alston box?" and received a reply, "send on Alston box with General Preston's;" and in obedience to these orders he sent Preston's and this Alston box to Richmond, on the 20th of February, 1865, and that it reached Richmond; he supposes, now, that Alston's box was burnt when Richmond was evacuated, the office of defendant, at Richmond, having been then destroyed by fire, though he never knew of the loss till Alston's agent called for the box. Bates further testified, that he was representing Alston, as his agent, in preserving the box, and believed that Alston so recognized him; that he would not have received it for the pittance in Confederate money paid for the freight, had really a full load, but supposed he was doing a personal favor to Alston, and took itfor that reason only.

*The Court was requested by the plaintiff's attorneys to charge the jury:

1st. Where goods arrive at the point of destination, and are delivered to the company's warehouseman, the common-carrier becomes, as to such goods, warehouseman by operation of law, and as such warehouseman, is bound to exercise ordinary care for such goods. If, under such circumstances, the goods be misdelivered, or shipped to another point, without authority, it is a misfeasance, and makes the common-carrier liable for their loss, whether the misdelivery or sending them away was by the carrier as carrier or as warehouseman. The Court gave in charge the request, with this addition, "provided such misdelivery or sending away of the goods was not by mistake, or done purposely for the safety of the goods, and for the benefit of the owner."

2d. The same individual cannot be the agent of two parties in the same transaction whose interests are conflicting; if Bates was superintendent of defendant, at Charlotte, North Carolina, he could not have been the agent of Alston, and a shipment from Charlotte, by Bates, was unauthorized, and did not relieve the defendant from liability. He charged that while that was true, generally, yet if Alston shipped the goods to the care of Bates, he made Bates his agent, and a delivery to Bates discharged the defendant: thus, if goods are shipped to the care of the Superintendent of the Georgia Railroad Company, it makes such superintendent the agent of the shipper, and a delivery to him relieves the company from all liability.

3d. The shipment of the goods from Charlotte to Richmond, without authority was a new undertaking, at the risk of defendant, and defendant cannot shield itself under the terms of its receipt as to the value of the goods, but is bound for the full value thereof. He refused so to charge, but charged that the contract as to value continued and followed the goods, that defendant could not be held responsible for more than the value put upon the goods by the shipper, and that, in ascertaining that value, the jury is not confined to the specie value of the confederate currency specified in the *receipt, if the contents were stated at the time, or known to the defendant; if the goods were carried to Charlotte, the contract of shipment was executed, but if afterwards the goods were lost by the misfeasance of defendant, it is bound for the full value of the goods, notwithstanding the value specified in the receipt.

Further he charged, as follows: "The Express Company is a common-carrier, and bound to carry safely, and within a reasonable time, all goods entrusted to it to the point of destination, and then to deliver them to the consignee. The defendant can excuse itself from the performance of such...