Grogan & Merz v. Adams Express Co.

• Citation: 7 A. 134,114 Pa. 523
• Decision Date: 17 November 1886
• Docket Number: 111
• Parties: Grogan & Merz v. Adams Express Company
• Court: United States State Supreme Court of Pennsylvania

7 A. 134

114 Pa. 523

Grogan & Merz v. Adams Express Company

No. 111

Supreme Court of Pennsylvania

November 17, 1886

October 30, 1887

ERROR to the Court of Common Pleas No. 2 of Allegheny county: of October Term, 1886, No. 111.

This was an action of trespass on the case by James C. Grogan and A. Merz, partners as Grogan and Merz, against the Adams Express Company.

The plaintiffs in their declaration set out that the defendant is a common carrier of goods for hire between the city of Pittsburgh and Springfield, Massachusetts; that on December 20th, 1883, plaintiffs delivered to defendant and defendant received a certain article of jewelry of the value of one hundred and ninety-eight dollars ($198.00), to be safely and securely carried by said defendant to the city of Springfield; there to be delivered for said plaintiffs. Yet said defendant not regarding its duty as common carrier, but contriving, etc., did not, nor would safely and securely carry and deliver the same, but behaved so carelessly and negligently in the premises that by its carelessness, etc the jewelry aforesaid was wholly lost to plaintiffs to the damage of plaintiffs, etc.

The defendant pleaded "Not guilty, and the special facts set forth in the affidavits of defence, with leave to add, alter or amend, at bar."

The affidavit of defence first tenders to plaintiffs, judgment for $50; admits the loss of the goods in transportation and the value, to wit, $198; and sets up a contract between the parties alleged to be contained in the receipt given to plaintiffs by defendant.

After a rule had been taken for judgment for want of sufficient affidavit of defence, a supplemental affidavit was filed alleging a failure on the part of plaintiffs to give notice in writing to defendant within thirty days of the loss; and alleging that they were bound so to do under another contract in the receipt, and withdrawing the tender already made.

The following are the facts of the case as they appeared on the trial before EWING, P.J.

On December 20th, 1883, the plaintiffs, who were engaged in business as jewelers, in the city of Pittsburgh, delivered to the defendant company, for transportation, a small box containing a lace pin made of gold and diamonds, of the value of one hundred and ninety-eight dollars. The box was securely packed and plainly addressed to the person for whom it was intended, in the city of Springfield, Massachusetts. At the time of shipment, the plaintiffs paid all charges asked by the defendant company, for transporting the box to its destination, and received a receipt therefor, from the company, in their receipt book, which was furnished to them by the Express Company; each page of the book is headed "Adams Express Company, Domestic Bill of Lading Received of Grogan and Merz, the following article, subject to the contract printed below." Then follows ten blank lines, for date of shipment, value, number of packages, name of consignee, destination, and name of receiver.

The receipt for the package involved in this case is the first one upon the page, and the entries are as follows: "December 20th, 1 package, Miss B. T. Tiffany, 297 Union street, Springfield, Massachusetts, 25 cents paid, J. G. Storen," the receipt also shows the figures 1/2 2/9 in purple ink, interlined after the date, which Mr. Post, the clerk of the Express Company, says are his handwriting, and signify the date of notice of loss, hereafter mentioned. Then follows nine other receipts for packages shipped at various later dates, and at the bottom of the page in small type, the following words appear: "which it is mutually agreed is to be forwarded to our agency, nearest or most convenient to destination only, and there delivered to other parties, to complete the transportation. It is 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, etc. . . . Nor in any event shall the holder hereof demand payment beyond the sum of fifty dollars, 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. . . In no event shall the Adams Express Company be liable for any loss or damage, unless the claim therefor shall be presented to them, in writing, at this office, within thirty days after this date, in a statement to which this receipt shall be annexed."

There was no value marked in the receipt book, and Mr. Sample, the plaintiffs' agent who shipped it, swears positively that none was asked. Mr. Storer, the defendants' agent who received the package, says that he has no recollection of this package; but that it was his general custom, and a rule of the company, to ask its value at the time of shipment. It is admitted that the value of the package was $198. On December 29th, 1883, nine days after shipment, the plaintiffs, hearing from Springfield of the non-arrival of the package, sent Mr. Sample with the receipt to the Express Company's office, in Pittsburgh, and he called the matter to the attention of Mr. Post, the company's agent in such matters, to the fact, and Mr. Post thereupon wrote the figures 1/2 2/9 referred to, upon the book. No other or further notice was, at that time, demanded by the Express Company, nor, in fact, claimed at any other time, until after plaintiffs brought their action, and had served a rule on the defendant, for judgment, for want of a sufficient affidavit of defence, when, in a supplemental affidavit of defence, the Express Company withdrew the tender of $50 made in their original affidavit of defence, and set up the clause printed on the receipt, requiring notice in writing, within thirty days, with the receipts annexed. It was admitted by the witnesses of the Express Company, that the company acted upon the notice thus given them, and traced the package as far as Springfield, where it was lost. No explanation was offered by the company as to how it was lost, or what became of it.

The plaintiffs presented the following points:

1. That the plaintiffs having shown and the defendant (having) admitted the loss of the goods, while in the defendant's hands, in course of transportation, a presumption of negligence arises; and the alleged condition limiting the defendant's liability to $50, is no defence in the absence of any evidence to show that the loss occurred without the fault of defendant.

Answer refused. (First assignment of error.)

2. That if the jury believe from the evidence that the plaintiffs on December 29th, 1883, at the Pittsburgh office of the defendant, notified the defendant of the loss, and gave to it full information as to the package, time of shipment, its destination, and its non-delivery, at the same time producing the receipt book, and calling defendant's attention to these particulars by the entry of the package therein; and that defendant did not request other and further proof, then the plaintiffs have complied with said alleged condition as to notice, and so far as said alleged condition is concerned, the plaintiffs are entitled to recover.

Answer refused: under the testimony the above would not be sufficient to constitute a waiver of the condition. (Second assignment of error.)

The defendant presented the following points:

That in no event can the defendant company be held to a greater sum than fifty dollars, as in said contract provided. Affirmed. (Fourth assignment of error.)

The defendant company could limit its liability by special contract. Affirmed. (Fifth assignment of error.)

In the general charge, the court instructed the jury inter alia as follows:

In addition, Mr. Grogan, one of the firm, admits that he saw this book frequently, and knew what was in it, and the presumptions are that he saw it, and knew what was in it. Mr Grogan also knew that there was a higher charge for articles of a higher value than $100, than for an article worth $50. Now, if that be the method of business between that firm and this company, and those the circumstances under which this receipt was given, unless something was said to the contrary, I instruct you that this shipment was under the contract. It was equivalent to Grogan & Merz saying, we give you this package to be shipped under the conditions of the contract, and if it was worth more than $50, it was their business to have the company informed of that fact; there was a greater risk then to the company, and a greater charge for carrying. While it is for you to determine the facts, if I understand the testimony that is uncontradicted, and that being the fact, it makes this the contract under which the defendant incurred the liability, and have rights. Now, there are only two stipulations of this contract that become important in this case. The first is in relation to this limitation of $50. The contract reads, among other things: Nor in any event shall the holder thereof demand beyond $50; at which the article forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured. That, we instruct you is a valuation, and if the circumstances under which the goods were delivered be as testified to, and as I have stated, then it was a binding contract, a determination on the part of these parties as to the value of that package, and governs this transaction, unless the company took and appropriated it to its own use when it would have to pay...