Railway Express Agency v. Smith, 11920.

• Decision Date: 15 April 1954
• Docket Number: No. 11920.,11920.
• Citation: 212 F.2d 47
• Parties: RAILWAY EXPRESS AGENCY, Inc. v. SMITH.
• Court: U.S. Court of Appeals — Sixth Circuit

212 F.2d 47 (1954)

RAILWAY EXPRESS AGENCY, Inc. v. SMITH.

No. 11920.

United States Court of Appeals Sixth Circuit.

April 15, 1954.

Charles C. Trabue, Jr., Nashville, Tenn. (William J. Harbison, Trabue & Sturdivant, Nashville, Tenn., Alston, Sibley, Miller, Spann & Shackelford, Atlanta, Ga., on the brief), for appellant.

James M. Swiggart, Nashville, Tenn. (Ward Hudgins, Nashville, Tenn., on the brief), for appellee.

Before ALLEN, MARTIN and McALLISTER, Circuit Judges.

MARTIN, Circuit Judge.

The individual appellee, Mark J. Smith, recovered judgment in the United States District Court against the appellant carrier, Railway Express Agency, Inc., for damages resulting from the breakage in shipment from Nashville, Tennessee, to Lexington, Kentucky, of a matched pair of unique Meissen porcelain urns owned by him. Appellee had purchased these urns in Berlin, Germany, while he was serving there with the United States Army of Occupation. The articles had been made at a small but world famous factory in Meissen, Germany. The urns, which were around one hundred years old, had been made for presentation to King Albert of Austria and his Queen, Catherine of Saxony. On one of the urns had been painted a picture of the King and, on the other, a picture of the Queen. Except in this respect and in a few minor details, they were identical in size, conformation and configuration.

A declared value of $5,000 was placed upon the pair when appellee delivered them for shipment by railway express, and the carrier was paid an extra premium on the valuation. Previously, the urns had been displayed by appellee at a farm house near Columbia, Tennessee, where he was engaged in selling Meissen porcelain purchased by him in Germany. He testified that he had used the matched urns as a "drawing card" for his collection of porcelain, to see which he had charged the public an admission fee. He said that his purpose in shipping the King and Queen urns to Lexington had been to have them there as an attraction for an auction sale in which some of his own porcelain would be put up, along with items owned by a "large estate." The urns had been delivered by appellee to Bond-Chadwell Warehouse Company in Nashville, with instructions to pack and ship them by railway express from Nashville to Lexington.

The manager of Bond-Chadwell testified that for more than forty years his company had been engaged in packing for shipment items of fragile nature. He said that he had personally supervised the packing of the urns in controversy, which had been wrapped in cotton, packed in excelsior and placed in cardboard drums. These drums had been put into slatted lumber crates, nailed around the outside of the drums. The witness stated positively that the urns were not broken when they were delivered to the appellant express agency.

Appellant has made the point that the warehouse company, as agent of the shipper, had not placed stickers upon the crates to indicate that they contained "fragile" goods. The point is not well taken; for the agency and appellee had entered into a special contract covering the shipment, wherein the very first provision, printed in enlarged emphasized type, thus described the character of the coverage: "Special contract for the transportation of carvings, ceramics (pottery and porcelain all kinds), Chinaware, cloisonne, champleve, glass half-tone screens, glass panels, carved or etched, glass photographic color plates, glass photographic negatives, glass photographic positives, glassware, N. O. S., jade ornaments other than jewelry, paintings, pastels, pictures, sculpture, statuary and wax figures, of a value of over $550.00." So, in executing and delivering its special contract for an extra premium, the express company had constructive knowledge that the goods shipped were fragile. The articles were described in the contract as "urns and tops" and were placed and packed in three separate crates.

Upon arrival in Lexington, Kentucky, the crates containing the urns were placed on the floor of the warehouse of the consignee in a place where they were out of the way of people moving about. They remained there for two or three days before being opened. Auctioneer Garland of Lexington, who, though not interested in the consignee firm, auctioned goods as their agent, testified that he was present when the urns were unpacked in the warehouse and that the base of one of the urns had been broken into half a dozen pieces; that the urn had been broken before the unpacking started; and that the urns had been properly and solidly packed, being wrapped in thick layers of cotton, padded paper and excelsior. He said further that the delay in opening the crates had been due to the fact that the express company had to be called three times in an effort to have its agent present when the crates were opened. He stated that no one touched the crates before a representative of the express company at last arrived for the opening and that the packages had not been moved in the interim. The warehouse worker who finally unpacked the crates had been for twenty years experienced in such work. The first urn unpacked was in good condition, except for small chipped pieces (this damage not alleged to have been received in shipment), but the other, packed in the same manner as the first, was broken as had been previously stated.

Defensively, the appellant introduced three witnesses, namely: its agent in charge at Nashville, its special agent who investigated loss and damage claims, and an interior decorator who deals in antiques as a sideline. The last...