Sands v. Am. Ry. Express Co., 23060.

• Decision Date: 25 May 1923
• Docket Number: No. 23060.,23060.
• Citation: 193 N.W. 721,154 Minn. 308
• Parties: SANDS v. AMERICAN RY. EXPRESS CO.
• Court: Minnesota Supreme Court

154 Minn. 308

193 N.W. 721

SANDS

v.AMERICAN RY. EXPRESS CO.

No. 23060.

Supreme Court of Minnesota.

Jan. 19, 1923.

On Rehearing May 25, 1923.

Appeal from District Court, Stearns County; John A. Roeser, Judge.

Action by P. W. Sands against the American Railway Express Company. From the order denying its alternative motion for judgment or a new trial, defendant appeals. Affirmed.

Dibell and Holt, JJ., dissenting.

Syllabus by the Court

A carrier by express, which ships property to the wrong destination, where it is not delivered, and later ships it to its usual place of selling unclaimed express, though the consignee is demanding it, and sells it and receives the proceeds after the commencement of an action and before issue joined, is chargeable with an actual conversion, and is liable for full value, although the shipment was made upon a released value.

Under the Cummins Amendment of August 9, 1916 (39 Stat. 441, c. 301 [U. S. Comp. St. § 8604a]), the liability of a carrier is limited to the value declared in the express receipt as the released value, if the shipper accepts the receipt from the carrier, though he does not sign it.

The former decision, holding the defendant liable for an actual conversion and for full value, is adhered to. Henry H. Sullivan, of St. Cloud, and Davis, Severance & Morgan, of St. Paul, for appellant.

Paul Ahles, of St. Cloud, for respondent.

DIBELL, J.

Action to recover for the loss of goods of the plaintiff delivered to the defendant at Detroit, Mich., for shipment to Sauk Rapids, Minn. There was a verdict for the value of the goods. The defendant appeals from the order denying its alternative motion for judgment or a new trial.

On June 8, 1920, the plaintiff delivered to the defendant at Detroit, Mich., three trunks containing household belongings to be sent to Sauk Rapids, Minn. They were not delivered. The defendant does not disclaim liability. It contends that the shipment was valued and that a greater recovery than the released value of $250 cannot be had. A receipt was delivered to the plaintiff. It shows a declared value of $250. It was not signed by the plaintiff. The circumstances attending its making and delivery are left uncertain. The parties differ as to the effect of the Cummins Amendment of August 9, 1916 (U. S. Comp. St. § 8604a). In view of the facts now to be mentioned, and the conclusion which we reach from them, a construction of the statute, and its application to the facts in evidence, is unnecessary.

The trunks did not reach Sauk Rapids. The plaintiff notified the express company and a search of some kind commenced. Nothing resulted. The plaintiff suggested to the company that it look to other stations on its line having the word ‘Rapids' as a part of the name. If anything was done it did not bring results. In April, 1921, the plaintiff commenced suit. While the action was pending and before answer the trunks, which had been sent to Grand Rapids, Minn., and so far as appears were there all the time, were sent to the Twin Cities as unclaimed express, and about April 30 were sold, the defendant taking the proceeds. The trunks were opened. Some of the articles were sold separately. It fairly appears that there were in the trunks letters which would have shown the name of the owner and that Sauk Rapids was the destination. It is not necessary to locate individual fault. The company knew what its employés knew. The property was in its possession. It was not lost nor injured nor destroyed. There was a continuous demand for nine or ten months. Under circumstances such as narrated there was a conversion as a matter of law and the company should respond for full value. See Central R. Co. v. Chicago Portrait Co., 122 Ga. 11,49 S. E. 427,106 Am. St. Rep. 87;Shelton v. Canadian N. R. Co. (C. C.) 189 F. 153;Georgia, etc., R. Co. v. Johnson, 121 Ga. 231, 48 S. E. 807;Merchants', etc., v. Moore, 124 Ga. 482, 52 S. E. 802.

We do not fail to note that the action was not brought upon the theory of conversion. The evidence was in without objection. There is no dispute as to the controlling facts. An amendment could have been made at any time. There can be but one result.

Order affirmed.

On Rehearing.

The former decision was placed upon the ground that there was an actual conversion, for which the defendant was liable, irrespective of the construction to be placed upon the Cummins Amendment of August 9, 1916, 39 Stat. 441, c. 301 (U. S. Comp. St. § 8604a). The effect of the amendment was not considered. The question of actual conversion was hardly considered in the briefs and arguments, and was decided without the aid of the views which counsel were entitled to present. A rehearing was granted. The two questions are:

(1) Was it necessary under the Cummins Amendment of August 9, 1916 (39 Stat. 441, c. 301 [U. S. Comp. St. § 8604a]), that the express receipt be signed by the shipper in order that he be bound by the declared value?

(2) Was there such an actual conversion that there could be a recovery of actual value, irrespective of the declared or released value?

1. The shipper did not sign the express receipt. The drayman delivered the shipment to the express company, received a receipt with a declared value of $250, which he returned to the shipper. It was not signed by the shipper. The proper schedules of authorized and established rates were filed with the interstate commerce commission. After the argument, but before the decision, American Ry. Exp. Co. v. Lindenburg, 43 Sup. Ct. 206, 67 L. Ed. --, was decided. It was there held that the receipt need not be signed by the shipper to be binding upon him, and that his acceptance of the receipt, the contents of which he was presumed to know, was an assent to its terms making it the written agreement of the parties. This case reversed Lindenburg v. American Ry. Exp. Co., 88 W. Va. 439, 106 S. E. 884, which was cited on the original hearing. The federal decision is controlling. The plaintiff is limited in his recovery to the declared value, though he did not sign, unless the carrier in the particular case is liable as for an actual conversion.

2. The question now is whether the sale of the express under the circumstances stated in the original opinion constitutes such a conversion as renders the express company liable irrespective of the declared value. The Georgia cases cited in the opinion hold the affirmative. That of Central R. Co. v. Chicago Portrait Co., 122 Ga. 11, 49 S. E. 727,106 Am. St. Rep. 87, involving the sale of freight shipped to its point of designation and then reshipped and sold as unclaimed freight, as quite in point. St. Louis, etc., R. Co. v. Wallace (Tex. Civ. App.) 176 S. W. 764, is much the same. The case of Shelton v. Canadian N. R. Co. (C. C.) 189...