T. Richter & Sons v. American Express Co.
| Decision Date | 22 September 1917 |
| Docket Number | 31000 |
| Citation | 164 N.W. 228,180 Iowa 1037 |
| Parties | T. RICHTER & SONS, Appellee, v. AMERICAN EXPRESS COMPANY, Appellant, et al |
| Court | Iowa Supreme Court |
Appeal from Scott District Court.--WILLIAM THEOPHILUS, Judge.
ACTION brought by the owner of a package of furs, against both defendants as common carriers. It was an interstate shipment. The goods were lost in transit and never delivered to the consignee. The action is in trover to recover the value for conversion. The contract of carriage, by its express terms,--and appellant contends by the law then in force,--limited the recovery to $ 50. The goods were worth more, and plaintiff sues for their actual value. Trial to a jury resulted in a verdict for plaintiff against the defendant American Express Company for $ 1,138.75, with interest from December 19, 1913, and against the defendant United States Express Company for $ 50, with interest. Plaintiff waived its right to judgment against the United States Express Company, and judgment was rendered against the American for the amount of the verdict. The judgment entry recited that the judgment should be without prejudice to any claim the American Express Company might have against its codefendant. The American Express Company appeals. The United States Company has refused to join in the appeal.
Reversed.
T. B Harrison and Bollinger & Block, for appellant.
Thuenen & Shorey and Lane & Waterman, for appellee.
The plaintiff's claim is substantially this: That it is an Iowa corporation; that each defendant is a common carrier; that defendant American Express Company had a continuous line for the carriage of goods from Brooklyn, New York, to Davenport, Iowa; that both defendants have a line to Davenport; that, some two or three weeks before December 19, 1913, plaintiff sent a package of furs to Schiff Bros., at Brooklyn, New York, to be tanned or dressed, and that, on said December 19th, plaintiff, by its agents, Schiff Bros., delivered said package to defendant American Express Company at Brooklyn for carriage to plaintiff in Davenport, and that said company accepted said package and undertook in writing to perform such services; that it did not perform said services, but, unlawfully and without the knowledge of plaintiff, delivered said package to the United States Express Company in the city of Brooklyn, thus converting said package to its own use; that the United States Express Company, knowing that plaintiff had not confided said package to it and that it had no right to take same, took it and has converted same to its own use; that said package has never been delivered to plaintiff; and plaintiff asked judgment for $ 1,321.15. In a second count, plaintiff asks the same judgment, and alleges further that both defendants combined to injure plaintiff, the one by giving and the other by receiving and undertaking to carry the package to plaintiff, and that the package was lost or stolen from the United States Express Company car in the course of said carriage. The defendant American Express Company denied the conversion, and pleaded substantially that it has never known the contents or value of the package; that the two defendants and the National Express Company maintained a joint office in Brooklyn, where the three received and distributed shipments, using the same employees and wagons in so conducting the business; that this was well known to Schiff Bros., the consignor, who for many years had used but one express receipt book, that of the American Express Company, for all its shipments through the said office, irrespective of which of said three companies might carry its shipments. Defendant alleges that said package, addressed to T. Richter & Sons, Davenport, Iowa, was in fact delivered to the United States Express Company by Schiff Bros., though the driver left with Schiff Bros. the receipt of the American Express Company; and that said receipt was accepted by the consignor and constituted a contract for the forwarding of the furs from Brooklyn to Davenport by the United States Company; that the package was carried by the agent of said joint office to the joint office in Brooklyn without any shipping instructions from said consignor, and the United States Company thus undertook the forwarding of said package to its destination, rightfully, and with the authority, knowledge, and consent of Schiff Bros. The defendant alleged, and the evidence shows that said written contract provided, as follows:
Said defendant also alleged, and the evidence shows, that, under the laws of Congress, both defendants had, prior to the date of the shipment in question, caused to be filed with the Interstate Commerce Commission their schedule of rates between Brooklyn and Davenport, and that said rates are based on the value of the shipments; that the rates, classifications, schedules and tariffs were jointly filed by the defendants and approved by the commission, and were in force on December 19, 1913; that such schedule contained the following provisions:
Said defendant also alleges and claims that the package was accepted as an interstate shipment, subject to the terms and conditions of the receipt given in the name of the American Express Company, and subject to the regulations of the Interstate Commerce Commission under said act, and that any liability of the defendants is to be determined by the act as amended, and particularly by Section 20 thereof; that, by reason of the matters just referred to, defendants were authorized to carry pursuant to the terms of said classification, whereby the agreed value was fixed at $ 50, in consideration of the rate agreed to be paid for the carriage of said package, and for its loss in shipment the liability of either defendant is limited to said agreed valuation; that plaintiff knew that the rates were based upon the value of the shipment, and that, had its true value been disclosed, the rate would have been based upon a value in excess of $ 50, while the rate actually agreed to be paid was the lowest rate; that Schiff Bros., plaintiff's agents, in accepting the receipt without declaring the true value, and knowing the true value, were guilty of a fraud in attempting to obtain an illegal and discriminatory rate, and one lower than allowed by law. It is shown that the package in question weighed 90 pounds, and that the rate would have been $ 1.65 more had the true value of the package been declared. Said defendant alleges that plaintiff is estopped from claiming that the value of the package is in excess of $ 50; that, by declaring the true value, the consignor and plaintiff could have obtained a service involving a greater degree of care, and, in failing to declare the true value, the consignor induced the defendants to lessen their vigilance; that the value of $ 50 placed upon said shipment, by the failure to declare a value thereon, was a part of the rate fixed by law. It is alleged and shown that Rule 2 was one of the rules before referred to, and is as follows:
"The rates of the companies, parties to this classification, are conditioned upon their right to route business as they may elect, which right is expressly reserved."
Said defendant alleges that, even if it be found that the package was received by it for shipment, still, under said Rule 2, it might forward the package over such route as it deemed shortest and least expensive, and that, therefore, there was no conversion, because defendant was acting within the terms and conditions upon which it received such package, if it be held that it did receive it. Said defendant denied generally all allegations not admitted. It is shown that the package would reach Davenport by the United States Company four hours sooner than by the American. The defendant United States Express Company...
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