Jones v. Southern Express Co.

• Decision Date: 10 March 1913
• Docket Number: 15,776
• Citation: 61 So. 165,104 Miss. 126
• Court: Mississippi Supreme Court
• Parties: J. F. JONES v. SOUTHERN EXPRESS CO

61 So. 165

104 Miss. 126

J. F. JONES v. SOUTHERN EXPRESS CO

No. 15,776

Supreme Court of Mississippi

March 10, 1913

APPEAL from the circuit court of Warren county, HON. H. C. MOUNGER Judge.

Suit by J. F. Jones against the Southern Express Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Brunini & Hirsch, for appellant.

The lower court based its decision on Express Company v Stevenson, 89 Miss, 233. We submit that that case has no application to the case at bar. The facts distinguish the two cases. There the express company had no notice of the apparent value of the shipment; here it had.

Express Company v. Seide, 67 Miss. 609, is on allfours with the case at bar, and sustains the liability of the appellee for the full value of the shipment of appellant.

We therefore confidently submit that this should be reversed and remanded.

Robert C. Alston and McLaurin, Armistead & Brien, for appellee.

Appellee has contented himself by citing to this court, without any attempt at argument, two cases, viz., Express Co. v Seide, 67 Miss. 609 and Express Co. v Stephenson, 89 Miss. 233; and because of the fact that the Seide case, 67 Miss., is apparently on his side of this question and the Stephenson case, 89 Miss., is apparently against him, he asks this court to ignore the decision in the Stephenson case, which is a more recent decision insofar as that is concerned, and adhere to the rule laid down in the case of Seide, 67 Miss., regardless of the Stephenson case. We do not think that this court will do anything of the kind unless it intends to overrule the Stephenson case in 89 Miss.

The contract under consideration in the Stephenson case, 89 Miss. 233, was identical with the contract in question. In the opinion in that case we find the following language in the first clause. "Mr. Stevenson did not fix the value at the time he made the shipment, and, this being the case, he cannot recover over and above the sum of fifty dollars. By express contract it is stated that the amount the express company shall be liable for in the event of loss or damage, when no value is given, shall not exceed the sum of fifty dollars. This regulation is reasonable and valid. When articles of great value are to be shipped by the express company it is but just and right that it should be informed in order that it may take such precaution to secure the safe delivery of the articles as the values it is dealing with warrant. A party who takes advantage of the cheapest rate and fails to give proper notice, can have no cause to complain in case the goods should be lost, that he is deprived of his right to recover all above the amount limited in the contract of shipment."

This is the exact proposition that we are contending for here and we contend further, that this decision of the supreme court of this state, the last announcement from our supreme court on this question, in the first place is in harmony with a vast number of other decisions from the Supreme Court of the United States, of various circuit courts of appeal, of the Federal court, and many of the other state courts. We, of course, understand that in the broad sense of the word a common carrier cannot contract against its own negligence and this was the doctrine announced in the Seide case, 67 Miss. 609, which is relied on by appellant; also in the Rothenberg case, 87 Miss. 659, and numerous other cases in this state; but we contend that the contract in question is not a contract against negligence but that when a shipper gets the benefit of a lower rate by an undervaluation he is estopped from claiming more than the amount he paid on, fifty dollars in this case, in the event the package is lost, even if it be lost by reason of the negligence of the common carrier. This is the doctrine laid down at great length and elaborately discussed in the case of Hart v. Pennsylvania Railroad, 112 U.S. 331. This is the leading case in the United States, it seems, on this question, and by reference to Rose's Notes, vol. 10, p. 896, this court, if it desires to pursue the investigation further, will find a vast number of cases cited there wherein the Hart case, as we understand it, has been cited and upheld.

See also, in this connection the case of McFarland v. Adams, 137 F. 892; also Blackwell v. Southern Pacific Railroad, 184 F. 489; also and particularly the case of Pierce v. Wells Fargo Express Co., 189 F. 561. In this case the Hart case, 112 U.S. 331, is quoted from liberally, and on page 563 as taken from the Hart case we find this statement.

"The limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care; it exacts from the carrier the measure of care due to the value agreed on. The carrier is bound to respond in that value for negligence. The compensation for carriage is based on that value. The shipper is estopped from saying that the value is greater. The articles have no greater value, for the purposes of the contract of transportation between the parties to that contract. The carrier must respond for negligence up to that value. It is just and reasonable that such a contract fairly entered into, and where there is no deceit practiced on the shipper, should be upheld. There is no violation of public policy. On the contrary, it would be unjust and unreasonable and would be repugnant...