Southern Express Co. v. Fox & Logan

• Decision Date: 09 January 1909
• Citation: 131 Ky. 257
• Parties: Southern Express Co. v. Fox & Logan
• Court: Kentucky Court of Appeals

131 Ky. 257

Southern Express Co. v. Fox & Logan

Court of Appeals of Kentucky.

January 9, 1909.

Appeal from Fayette Circuit Court.

WATTS PARKER, Circuit Judge.

Judgment for plaintiff. Defendant appeals. — Reversed.

COPYRIGHT MATERIAL OMITTED

SHELBY & SHELBY for appellant.

ROBERT HARDING, E. V. PURYEAR and ALLEN & DUNCAN for appellee.

OPINION OF THE COURT BY JUDGE HOBSON — Reversing.

On February 21, 1905, Fox & Logan delivered to the Southern Express Company at Donerail, Ky., 16 horses to be carried to Memphis, Tenn., in a car. Among the horses was one called Emily Letcher, valued at several thousand dollars. During the shipment the stall in which she was placed fell down, and she was seriously injured. They then brought this suit against the express company to recover $2,000, which they alleged was the amount she was damaged. Upon a trial of the case the jury found for the plaintiffs the amount sued for, and the defendant appeals.

The defendant, by the third paragraph of its answer, alleged that the shipper, before the contract of shipment was made, demanded to be advised of the rates to be charged for the carriage of the animals, and was thereupon offered by the defendant alternative rates proportioned to the value of the animals; that the defendant offered to transport the animals for $254.50 if their value did not exceed $75 each, and informed the shipper that, if the animals were worth more than $75 each, an addition of 10 per cent of the excess valuation over $75 would be made; that the shipper, being asked to value the property for the purpose of enabling the defendant to fix the freight charges, declared that the 16 animals were of value $75 each; that the defendant did not know and had no means of estimating the actual value of the animals, and was compelled to rely, and did rely, in fixing its freight charges upon the valuation fixed by the shipper; that the actual value of the mare was known to the shipper, and was unknown to it; that to procure the reduced rate the shipper stated the mare was not worth over $75; and that, relying upon this statement, it undertook to transport the animal for $15, or 1-16 of the entire charge. The circuit court sustained a demurrer to this paragraph of the answer. The defendant thereupon filed an amended answer, in which it alleged that the shipper's statement that the 16 animals were of value $75 each was falsely and fraudulently made by him for the purpose of enabling him to obtain from the defendant the low rate; that the shipper knew the value of the animals, and knew that the defendant did not know, and had no means of estimating, their actual value, and that it was compelled to rely and did rely in fixing its freight charges upon the valuation as given by him; that, by reason of the false and fraudulent statements of the shipper, it was induced to assume and did assume, the risks involved in the transportation of the mare for much less than it was reasonably entitled to charge and would have charged if the truth had been made known to it. It pleaded that, by reason of these facts, the plaintiffs were estopped to claim that the mare was worth more than $75 at the time of the shipment, or to recover more than $75 on account of her injuries. The court sustained a demurrer to the answer as amended; and the propriety of this ruling is the first question to be determined on the appeal.

The Constitution provides: "No common carrier shall be permitted to contract for relief from its common law liability." Constitution sec. 196. In Adams Express Co. v. Walker, 119 Ky. 121, 83 S. W. 106, 26 Ky. L. R. 1025, 67 L. R. A. 412, this court held that under our Constitution contracts limiting the common-law liability of a carrier in this State are void. In concluding the opinion, the court said: "In the absence of a special contract, it would not be maintained that the defendant is not liable for the value of the dog lost. But our Constitution declares the contract limiting this liability void. So the contract is as though it had not been made, and the defendant is liable, unless sufficient facts are shown independently of the special contract to avoid the contract for fraud or to create an estoppel at common law." The court adheres to the rule thus laid down. The special contract is void. It is as though it had not been made, but it does not follow that the shipper may recover the value of the animal if he deceived the defendant as to the value of the animal or practiced a fraud upon him. Estoppels apply in this class of actions as in all others. The question then is: Do the allegations of the answer show facts sufficient to make out a case of deceit or to create an estoppel at common law? In the Walker case the answer did not show that the defendant relied upon the statements of the shipper, or that it was deceived by any statements that the shipper made. It is well settled that, to maintain a cause of action for deceit, the statement relied on must be false and must be made with actual or constructive knowledge of its falsity, and that it must also be shown that it actually did mislead or deceive. 14 Am. & Eng. Ency. of Law, 86, 106; 20 Cyc. 14, 32. There can be no relief for deceit unless the party complaining was deceived. See Common-Law Forms, 2 Chitty, Pleading, side page 683-687. The answer in the Walker case did not show that the express company was in fact deceived by any statement made by Walker. The essentials of an estoppel are thus stated in Pomeroy's Equity, section 805: "(1) There must be conduct — acts, language, or silence — amounting to a representation or a concealment of material facts. (2) These facts must be known to the party estopped at the time of his said conduct, or, at least, the circumstances must be such that knowledge of them is necessarily imputed to him. (3) The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel at the time when such conduct was done, and at the time when it was acted upon by him. (4) The conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon." The answer in the Walker case did not show that the statement of the shipper was relied on by the express company. In that case, though the dog was valued at $50, the carrier's liability was limited to $25 by the contract relied on. There was no allegation that the carrier did not know the dog was worth over $50. In fact, taking the answer as a whole, it was a plea of the special contract simply and of the estoppel arising from the contract. A shipper who makes a contract for the carriage of his goods at a reduced rate upon a low valuation fixed by himself stipulating that such valuation shall be the limit of the carrier's liability, is bound by the contract where such a contract is legal; but, where the contract is illegal, the carrier's common-law liability remains, unless the shipper deceives him or the facts shown constitute an estoppel as above defined. If the carrier in the case at bar...