Southern Express Co. v. Hanaw
| Citation | 67 S.E. 944,134 Ga. 445 |
| Parties | SOUTHERN EXPRESS CO. v. HANAW. |
| Decision Date | 27 April 1910 |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
The mere insertion, in a printed form of receipt used by an express company, of terms limiting its liability, and the delivery of such a receipt to a shipper, without more, will not in this state suffice to make an express contract for the purpose of limiting its liability as a common carrier.
Where no value is put upon goods shipped by an express company, and no effort is made to arrive at a valuation, the mere fact that in the prepared form of receipt used by the company and issued to the shipper there is contained a statement that "the shipper agrees that the value of said property is not more than fifty dollars, unless a greater value is stated herein, and the company shall not be liable in any event for more than the value so stated, nor for more than fifty dollars if no value is stated herein," will not suffice to limit the liability of the company to $50, regardless of the value of the property shipped. Such a statement in the receipt is not a valuation, but an arbitrary limitation sought to be placed upon the extent of the liability of the common carrier.
While a bona fide agreement may be made as to the value of property to be transported, as a basis for fixing the charges, and may be valid, yet a common carrier cannot, even by express contract, put an arbitrary limitation upon its liability for damages arising from negligence of its agents. Such a contract is contrary to public policy.
If goods are shipped in one state on a through contract, to be transported by a common carrier and delivered in another (omitting any question of public policy), the general rule is that, in the absence of anything to show a contrary intent the validity, form, and effect of the contract of shipment will be determined by the laws of the state where the contract was made and partly to be performed.
If goods are shipped for transportation by connecting common carriers from New York to a point in this state, and suit is here brought for damages arising from delay in delivering them by the final carrier after arrival, whether or not the delivery and taking of the shipping receipt constituted a contract by the shipper with the initial carrier will be determined by the laws of New York if they be shown.
(a) In so far as stipulations of such contract (if it be such) limit the common-law liability of the carrier as an insurer, or for losses occurring by unavoidable accident, they will be enforced by the courts of this state; but in such a case, it being contrary to the public policy of this state to allow a common carrier, even by express contract, to make an arbitrary limitation upon its liability for negligence of its agents or servants, stipulations to that effect will not be enforced.
The mere fact that an express company to which is delivered goods for shipment gives to the shipper a receipt which contains a stipulation that, in the absence of valuation, the company's liability shall be limited to a certain amount and the taking of such a receipt by the shipper, without more, does not constitute a fraud on his part which will relieve the carrier from liability for damages.
Where a party seeks to rely on the law of another state as furnishing the basis for a right of recovery or defense different from what it would be under the laws of this state, or the common law, the law of such foreign state should be pleaded and proved.
If the point were distinctly made for decision, it would seem that the federal interstate commerce law could not be held to render valid an arbitrary limitation upon the liability of a common carrier for damages arising from negligence of its servants, stated in a shipping receipt given when the shipment commenced, so as to be binding in the state where the goods were to be delivered and where suit was brought although contrary to public policy and void according to the laws of such state.
In an action for damages on account of delay by a common carrier in delivering goods, it was error to admit evidence of the profit which the plaintiff would have made by selling such goods if he had received them promptly, after proof only of the shipment and the delay in delivery.
The general rule is that the measure of damages for unreasonable delay by a common carrier in delivering goods is the difference between their market value when they should have been delivered and their market value when they were delivered, with interest from the former date, less the freight, if unpaid.
(a) No special expense was shown to have been incurred by the shipper or consignee on account of the delay.
Delay in the delivery of goods by a common carrier will not authorize the consignee to reject them upon their arrival and recover their full value from the carrier. His remedy is to sue for the damages he has sustained by reason of the delay.
Error from Superior Court, Thomas County; Robt. G. Mitchell, Judge.
Action by L. B. Hanaw against the Southern Express Company. Judgment for plaintiff, and defendant brings error. Reversed.
Where one relies upon the law of another state as furnishing the basis for a recovery or defense different from what it would be under the laws of Georgia, or the common law, the law of the foreign state must be pleaded and proved.
L. B Hanaw brought suit against the Southern Express Company for a delay in delivering certain goods which were sent by express from New York to Thomasville. The initial carrier was the Adams Express Company. The plaintiff bought the goods and had them shipped to him. The receipt given in New York had at its head the statement: "The company's charge is based upon the value of the property, which must be declared by the shipper." It contained the following: Following the signature of the company's agent at the bottom of the receipt were these words: "Liability limited to $50 unless a greater value is declared." The defendant demurred to the petition, and also filed an answer. It admitted that the goods were shipped on September 13th, and reached Thomasville on September 19th, and alleged that they were tendered to the plaintiff early in December, but he refused to receive them. In explanation of the delay, the defendant alleged that the goods were insufficiently and improperly packed, and it became necessary to repack them for their protection; that this was done by placing them in a box, but the direction was so defective on the package that the person making the transfer thought the name was S. B. Howard, instead of L. B. Hanaw, and so marked the box; that the weight of the box was 76 pounds, while the weight of the package alone was only 50 pounds; that by reason of this the box was not recognized on arrival as being the shipment called for by the waybill, and the delay in identifying the package and making delivery resulted therefrom. Defendant alleged that the stipulation in the receipt limiting liability to the sum of $50 was binding under the laws of New York, where the contract of shipment was made, and there could be no recovery for any greater sum. It is unnecessary to set out the evidence. The jury found for the plaintiff $257.53. Defendant moved for a new trial, which was refused, and it excepted.
J. H. Merrill and McDaniel, Alston & Black, for plaintiff in error.
Theo. Titus and W. H. Hammond, for defendant in error.
LUMPKIN, J. (after stating the facts as above).
This was a suit against the Southern Express Company to recover damages for delay in delivering goods shipped from New York to Georgia; the Adams Express Company being the initial carrier, and issuing the receipt. The goods reached the point of destination, but there was delay in delivering them. It appears from the record that, during the charge, the court inquired of counsel for defendant if he admitted liability to the extent of $50, and counsel replied that he did, and tendered that amount and the goods, which were in the defendant's hands. The court thereupon charged on the basis that some liability was admitted. The question was thus one as to the effect of the stipulation in the express receipt, and as to the measure of damages. It did not appear at what point or in what condition the goods were delivered to the defendant, nor was any question made as to that; the defendant relying on the terms of the receipt.
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Veach v. Veach
... ... Ga. 78, 23 S.E. 202; Norman v. Goode, 113 Ga ... 121(3), 38 S.E. 317; Southern Express Co. v. Hanaw, ... 134 Ga. 445(7), 67 S.E. 944, 137 Am.St.Rep. 227; Trustees ... of ... ...