Smith's Transfer & Storage Co. v. Batigne., 115.

• Decision Date: 23 November 1943
• Docket Number: No. 115.,115.
• Citation: 34 A.2d 705
• Court: D.C. Court of Appeals
• Parties: SMITH'S TRANSFER & STORAGE CO. v. BATIGNE.

34 A.2d 705

SMITH'S TRANSFER & STORAGE CO.

v.BATIGNE.

No. 115.

Municipal Court of Appeals for the District of Columbia.

Nov. 23, 1943.

Appeal from Municipal Court for the District of Columbia, Civil Division.

Action by Claire V. (Mrs. Rene) Batigne against Smith's Transfer & Storage Company, a corporation, for loss of doogs consigned to defendant's warehouse. From a judgment for plaintiff, defendant appeals.

Affirmed.

Justin L. Edgerton, of Washington, D. C., for appellee.

Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.

RICHARDSON, Chief Judge.

Appellant was defendant in a suit by appellee for certain items lost and others damaged in a consignment of household goods shipped from California and received at appellant's warehouse in Washington. The parties will be referred to herein as plaintiff and defendant.

There is substantially no factual dispute. Plaintiff's goods were packed at her home in California by a warehousing company, hereinafter identified as ‘Norton's', were labeled by it, and shiped East by freight. They comprised fourteen items; eight were described in the shipping receipt as carton, two as bundles, two as flat packages, one as a trunk, and one a handbag. The total weight was 815 pounds. The charges were collect, amounting to $67.29, including freight to point of delivery. In addition to the labels placed by Norton's, the cartons, bundles and packages, which were wrapped in heavy tar paper, were marked ‘Batigne’ by plaintiff.

This shipment was forwarded by Norton's by freight in a car with goods of a Dr. Bernard Silber. The items comprising the latter were a trunk, four boxes, and a bookcase, weighing 610 pounds. Charges to be collected from consignee were $47.17.

While the car containing these shipments was en route to New York, on May 20, 1942, plaintiff telegraphed from Washington to Norton's to ‘direct entire shipment to Washington care Smith Storage.’ The shipment to Dr. Silber, either at the point of origin or en route, was also intended for delivery to defendant company.

Norton's, on May 21, 1942, sent defendant separate letters advising of the respective shipments, enclosing the appropriate invoices which described plaintiff's fourteen packages, and the six items belonging to Silber, and stating that each consignment would be transhipped from New York to the defendant company for the respective owner. Plaintiff's insurance policy in the sum of $500 was also enclosed.

On May 27, 1942, Santini Bros. Inc., a New York shipping agent, advised defendant by separate letters that the two shipments of the respective owners had been forwarded, enclosing bills of lading of the Pennsylvania Railroad in which the individual items duplicated those contained in the original receipts forwarded by Norton's to defendant on May 21. The names of the respective owners appeared on all of these documents.

When the freight car arrived in Washington, defendant was notified by the railroad company by telephone that the Silber shipment had arrived. Both were, in fact, contained in the same car. Defendant received both shipments from the railroad company, and was furnished arrival notices in triplicate, one covering the Silber shipment wherein the six items were described and identified as his property; the other listed and described the fourteen items of plaintiff's shipment but did not contain her name. The weight of each shipment was stated, and the amount of freight charges prepaid on each.

Defendant, apparently misled by the telephone message from the railroad freight office advising of the arrival of the Silber shipment, and by the absence of plaintiff's name on the arrival notice describing her property, treated both lots of goods as the Silber shipment.

The goods were received on May 27. Plaintiff made frequent inquiries and was told that her goods had not arrived. Silber returned to California and notified defendant to re-ship his goods. On June 17th, defendant shipped the plaintiff's goods, along with those belonging to Silber, to the latter at Oakland, California.

Upon their arrival Silber discovered that this large addition had been made to his own goods. Defendant was notifed. By its instruction plaintiff's goods were returned. They reached Washington on September 19. Certain cartons, however, were missing and were never located; others were received back in a damaged condition.

At the time of the original shipment plaintiff procured a policy of insurance on her property against loss in transit, in which the goods were valued at $500. The original shipping receipt delivered to plaintiff by Norton's valued the goods in case of loss at ten cents per pound, or a total of $81.50.

The ‘Shipping Order and Declaration’ addressed to Norton's and signed by plaintiff's husband, introduced in evidence by defendant, contained certain valuations of plaintiff's goods. The pertinent paragraphs are quoted in the margin. ¹

* * *

‘Section: For rate making purposes I limit the liability on these goods to ten cents per pound and the Norton Co. is authorized to declare the goods covered by this order to any Railroad Company, Steamship Company, Transfer Company or other Agency necessary in the transportation, transfer or handling of the shipment at that liability.’

* * *

‘Fourth: That the Norton Co. will not be responsible for loss or damage to goods by fire or otherwise in excess of ten cents per pound while in its own care, or in cars while being loaded or unloaded, or in warehouse awaiting shipment or delivery.’

The trial court found that the loss was caused by negligence of the defendant and awarded plaintiff $1,234.35, for the value of the articles contained in the missing cartons. Defendant has appealed.

The assignments of error are substantially as follows:

(1) That defendant's liability, if any, was limited by contract to a proportionate part of the valuation declared in the shipping order and receipt.

(2) That declarations of value for insurance and for rate purposes contained in the shipping order and communicated to defendant prior to its receipt of the shipment operate as an estoppel barring plaintiff's claim to an amount in excess of a proportion of the amount so stated.

(3) That defendant was a gratuitous bailee, responsible only for gross negligence, a degree not established by the evidence.

(4) That defendant was not guilty of a lack of that degree of care required under the circumstances of the case.

Error was also assigned upon the failure of the trial court to expressly rule upon the character of the bailment. The absence of comment in that court's opinion does not imply that the character of the bailment was misconceived.

I

Defendant claims that the contractual limitation of liability to ten cents per pound extends to it and that the finding, even if it were liable, should have been for that proportionate part of $81.50, which the value of the lost and damaged goods bore to the whole. This would approximate $20.

Contracts limiting liability for the negligent loss of goods in carriage or storage are upheld by the courts and are not regarded as against public policy for reasons and with limitations well expressed in Adams Express Company v. Berry & Whitmore Co., 35 App.D.C. 208, 31 L.R.A., N.S., 309: ‘This is permitted upon the theory that, as more expense is entailed in the exercise of a high degree of care than would be necessitated by the exercise of a lower degree of care, it is but equitable that the carrier should obtain more compensation in the one instance than in the other. Hart v. Pennsylvania R. Co., 112 U.S. 331, 5 S.Ct. 151, 28 L.Ed. 717; Pennsylvania R. Co. v. Hughes, 191 U.S. 477, 24 S.Ct. 132, 48 L.Ed. 268. Following this theory, the law has permitted the carrier to make special contracts with the shipper, in which the shipper, in consideration of a reduction in the rate which would ordinarily be charged for transportation of goods such as he has for shipment, agrees that, in case the goods are not safely carried to their destination, he will accept in damages a sum stated, which is usually much less than the real value of said goods. By so doing the shipper waives, in a measure, his common-law right to exact in damages the full value of the goods. But courts have closely scrutinized such contracts, and have generally allowed the carrier to make them only where they provided for partial, not total, absolution from liability, and, further, where the carrier furnished consideration for such limitation in the form of a reduction in the usual rates. To such restriction the carrier impliedly submits when it engages in a business of a public nature. Liverpool & G. W. S. S. Co. v. Phenix Ins. Co. (The Montana), 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788.’

Conceding the...