Southern Express Co. v. Pope

• Decision Date: 20 February 1909
• Docket Number: 1,549.
• Parties: SOUTHERN EXPRESS CO. v. POPE.
• Court: Georgia Court of Appeals

63 S.E. 809

5 Ga.App. 689

SOUTHERN EXPRESS CO. v. POPE.

No. 1,549.

Court of Appeals of Georgia

February 20, 1909

On Rehearing, February 27, 1909.

Syllabus by the Court.

A shipper, tendering to a carrier for transportation an article of an unusual value, not apparent from a casual inspection of the package as tendered, is in duty bound to disclose to the carrier the nature or the value of the article. A failure so to disclose, even though inadvertent and without any dishonest intent, is in law deemed such a fraud as to absolve the carrier from liability for the loss of the property. If an interstate carriage is involved, the provisions of the interstate commerce law are such as to emphasize the duty of the shipper to disclose the value of the articles delivered for transportation.

[Ed Note.-For other cases, see Carriers, Cent. Dig. §§ 499, 500; Dec. Dig. § 110. ^[*]]

On Rehearing.

If the shipper practices an actual or constructive fraud upon the carrier, by causing a package of large value to be shipped as if it were of small value, and a loss of the property occurs the carrier is discharged from all liability, and the shipper cannot recover even the small value at which the carrier accepted the shipment. Cases of this character are to be distinguished from those cases in which the carrier is informed of the nature of the shipment, and the carrier and the shipper have bona fide agreed upon a value which turns out to be less than the true value.

[Ed Note.-For other cases, see Carrier, Cent. Dig. §§ 499, 500; Dec. Dig. § 110. ^[*]]

If a petition in an action against a carrier for loss of goods in ambiguous, as to whether it is a proceeding ex contractu or ex delicto, the court, in the absence of a demurrer adequate to compel the plaintiff to make his allegations more specific and to relieve the ambiguity, will so construe the petition as to uphold the fullest recovery to which the plaintiff may be entitled under all the facts of the case as they appear. This rule is in no wise inconsistent with the rule that equivocal or ambiguous statements of facts will be construed most strongly against the pleader; but, on the contrary, it follows logically from the same presumption out of which that rule springs.

[Ed Note.-For other cases, see Pleading, Dec. Dig. § 227. ^[*]]

Error from City Court of Richmond County; W. F. Eve, Judge.

Action by F. B. Pope against the Southern Express Company. Judgment for plaintiff, and defendant brings error. Reversed.

W. K. Miller and McDaniel, Alston & Black, for plaintiff in error.

Wm. H. Fleming, for defendant in error.

POWELL J.

The facts of the present transaction are so very similar to those involved in the case of Southern Express Co. v. Everett, 37 Ga. 691 (Everett v. Southern Express Co., 46 Ga. 303), as to leave little or no reason for any attempt to distinguish them. In that case (46 Ga. 306) the Supreme Court said: "The carrier has a right to know the value of the article he is asked to carry, that he may take the better precaution to prevent persons from stealing it from him, or to prevent its loss from carelessness. An article of small value presents few temptations to the thief. The company may safely instrust it to less trustful agents and take less pains to protect and preserve it. Valuable articles ought to be, and usually are, put in a safe, and are delivered by the most trustworthy agents into the hands of the consignee; and for this extra care and risk a higher price is charged. The proof here shows that a small article of great value was, either designedly or carelessly, put in a common paper box, tied up with a string, and its value, either designedly or carelessly, concealed from the knowledge of the carrier. Who knows why? The evidence does not show; but if there was no special design-if the extra charge was not the thing sought to be got rid of-the gross negligence of the consignor amounts to fraud. It misled the carrier. It put him off his guard. He had a gem in his custody, a thing to be specially cared for, and he did not know it; and this want of knowledge was the fault of the consignor."

This case has been cited a number of times by our own courts and by the courts of other states. If any doubt existed as to whether merely an inference of fraud arises in such cases, so as to leave the question open for the jury, or whether the fraud is as a matter of law presumed, so as not to leave the matter issuable, that doubt was set at rest by the decision in the case of Southern Ex. Co. v. Wood, 98 Ga. 268, 25 S.E. 436. Among other things the court said in that case: "The silence of a shipper touching the character and value of goods contained in a package, which does not indicate that its contents are of great or unusual value, or such an imperfect description of its contents as misleads the carrier with respect to their nature and value, may, when the circumstances require a full disclosure by the shipper. even in the absence of an inquiry by the carrier or of an actual intent to defraud by the shipper, amount to such a fraud as will discharge the carrier from liability on account of loss or destruction of the goods." This is followed by a holding that under the facts a verdict for the defendant was demanded and by a statement that such, also, was the case in Everett v. Express Co., supra. The rule is nowise local, as may be seen by reference to the notes to the case of Bottum v. C. & W. C. Ry. Co., 72 S.C. 375, 51 S.E. 985, 110 Am.St.Rep. 610, as reported in 2 L.R.A. (N. S.) 773.

Of course there is no suggestion in this case that Mrs. Pope actually intended to perpetrate a fraud upon the carrier. She undoubtedly acted in perfect good faith; yet constructive fraud exists. From moral fraud her agent, Youngblood, is likewise free, and yet, especially since the suit is ex contractu, Mrs. Pope is likewise charged with his constructive fraud. See Central of Ga. Ry. Co. v. James, 117 Ga. 832, 45 S.E. 223; Bell v. W. & A. R. Co., 125 Ga. 513, 54 S.E. 532. Upon the general proposition that the shipper must neither conceal the true value nor fail to disclose any unusual value not indicated by the nature of the package, see, also, the following cases: Green v. So. Ex. Co., 45 Ga. 305, 309; S. F. & W. Ry. Co. v. Collins, 77 Ga. 376, 3 S.E. 416, 4 Am.St.Rep. 87; Charleston & S. Ry. Co. v. Moore, 80 Ga. 522, 5 S.E. 769; G. S. & F. Ry. Co. v. Johnson, 121 Ga. 231, 48 S.E. 807.

The argument is further presented by the able counsel for the express company that under Act Cong. June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892), amending the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), as well as the act of June 29, 1906, amending the act of Congress of 1903 known as the "Elkins Act" (Act Feb. 19, 1903, c 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1907, p. 880]), the contract sued upon was void because the shipper, by accepting it as an agreement to carry the property at less than its true value, and therefore at less than the rate filed with the commission, had been guilty of one of the devices prohibited by these acts. The argument is interesting; but whether it has validity, or only plausibility, we do not deem it necessary to decide at present, as the case is so clearly controlled by the propositions stated above. Those interested in the question may, however, examine the cases of N.Y., N.H. & H. R. Co. v. Interstate Com. Com., 200 U.S. 397, 26 S.Ct. 272, 50 L.Ed. 515 (where it is held that an indifference to the prohibitions of the statutes may be equivalent to a...