United States Express Co. v. Cohn

• Decision Date: 21 April 1913
• Citation: 157 S.W. 144,108 Ark. 115
• Parties: UNITED STATES EXPRESS COMPANY v. COHN
• Court: Arkansas Supreme Court

157 S.W. 144

108 Ark. 115

UNITED STATES EXPRESS COMPANY v. COHN

Supreme Court of Arkansas

April 21, 1913

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge reversed.

Thos S. Buzbee, for appellant.

The shipment involved in this case was an interstate shipment moving under the provisions of the act of Congress. The validity of the provisions in the receipt or bill of lading declaring the value of the shipment to be not exceeding $ 50 and limiting the liability of the express company to that amount, "unless a greater value is declared at the time of shipment," is settled by the decisions of the United States Supreme Court. 226 U.S. 491; Id. 513. Former opinions of this court in conflict with the act of Congress and the above decisions must give way.

J. W Blackwood and John W. Newman, for appellee. The evidence fails to show any special contract of shipment or any declaration by the shipper that the goods were worth only fifty dollars. It fails to show that appellee, the consignee and owner, was bound in any way.

The Croninger case, 226 U.S. 491, and similar cases, merely apply the doctrine of estoppel to facts showing an intentionally false statement by the shipper, and a bona fide reliance thereon, and giving of low rates by the carrier; but in this case, the shipper, or consignor, is not the plaintiff, or a party to the action.

Appellee bought the goods and ordered them delivered to the express company. She became the owner upon delivery and liable for the transportation charges. It will not do to say because a servant of the shipper has orders to deliver goods to an express company for another person, that he has authority to assess or misstate the value and estop the owner from asserting the true value. 95 N.E. 1089; 112 Mass. 524, 529; 36 L. R. A. (N. S.) 68; 13 Barb. 57. See also Barnes on Interstate Trans., § 393; 158 U.S. 98; 202 U.S. 242.

OPINION

SMITH, J.

Appellee, who was the plaintiff below, was engaged in the retail millinery business in the city of Little Rock, Ark., and purchased certain merchandise in the city of Chicago, Ill., which was received by appellant as a common carrier on October 30, 1911, for shipment and delivery to appellee in Little Rock, Ark. The goods cost and were of the value of $ 251.50 and were destroyed while in transit at a point near Hulbert, Ark., by train robbers on the 1st day of November, 1911, and none of the goods were ever delivered to appellee.

The defendant answered and admitted the loss of the goods, but alleged that its contract of carriage, which was evidenced by the receipt executed by it at the time of the delivery to it of the goods, contained the following provisions:

"Nor in any case shall this company be held liable or responsible, nor shall any demand be made upon them beyond the sum of fifty dollars on a shipment of 100 pounds or less, and not exceeding fifty cents per pound on a shipment weighing more than 100 pounds, and said property is hereby valued at and the liability of the express company is limited to the value above stated, unless a greater value is declared at the time of shipment."

And it also further provided:

"The company's charge is based on a value of not exceeding $ 50 on a shipment of 100 pounds or less, and not exceeding fifty cents per pound on a shipment weighing more than 100 pounds, and the liability of the express company is limited to the value above stated, unless a greater value is declared and paid for or agreed to be paid for at the time of shipment."

And in addition, the answer contained the following allegations:

"Defendant states that at the time of shipment the owner did not declare a greater value than $ 50 per 100 pounds, but declared that said shipment did not exceed in value $ 50 per 100 pounds, and the shipper did not pay or agree to pay the charges on a greater value."

It alleged that said shipment did not weigh exceeding 100 pounds, and that by the terms of said receipt, it is not liable to the plaintiff for any amount greater than $ 50.

It further alleged that its charges for transporting property are based on the value of the property to be transported. That these charges are shown by its tariff on file with the Interstate Commerce Commission; and that the rate of charge paid by the said Gage Brothers & Company on the shipment herein referred to was based on the rate for shipments not exceeding in value $ 50 per 100 pounds, and that this defendant can not lawfully pay any greater value for said shipment."

The appellant on the 4th day of January, 1912, tendered to the plaintiff in full settlement of the claim sued on, the sum of $ 50 with interest at 6 per cent per annum from October 30, 1911, which tender was refused by appellee.

The material questions of fact were covered by an agreed statement of facts, which contained the following recitals:

"The plaintiff is engaged in the retail millinery business in Little Rock, Arkansas. The defendant is an association engaged in business as a common carrier by express between Chicago, Illinois, and Little Rock, Arkansas.

"Prior to October 30, 1911, the plaintiff ordered a number of hats from Gage Brothers & Company to be shipped to her by express from Chicago, Illinois. The plaintiff was to become the owner of said hats on delivery to the express company and was to pay all express charges and assume all risks incident to the transportation as far as Gage Brothers & Company might be concerned. On said date the defendant received from Gage Brothers & Company two paper boxes and one paper case containing said hats which were of the value of $ 251.50, and the weight of seventy pounds, and properly addressed to the plaintiff. At the time the defendant received said hats for transportation, nothing was said about their value. It is true that the defendant had in force and effect a schedule of charges based upon the value of goods shipped. The defendant said nothing to the shipper concerning said schedule or the value of the goods and said shipper did not inform defendant as to the value thereof. The defendant gave the shipper a receipt for said shipment as appears in the deposition of George C. Woelfel, which deposition is taken as true throughout. The said shipment of hats was not delivered to the plaintiff nor was any part of said shipment delivered to her, although she has often demanded same from the defendant."

Appellee contends that while her vendor, which was the consignor, was instructed to deliver the goods to the express company, it was not authorized to make any contract with the express company other than that implied under the common law from the mere delivery for carriage and that the consignor had not signed the receipt containing the stipulations limiting liability above quoted, and had not knowingly assented to any limitation of liability whatever.

The cause was by consent of the parties submitted to the court sitting as a jury and there was a finding for appellee for the full value of the shipment and judgment accordingly, and this appeal is prosecuted from that judgment.

The judgment of the court below was fully warranted by the previous decisions of this court. St. Louis, I. M. & S. Ry. Co. v. Pape, 100 Ark. 269, 140 S.W. 265; Southern Exp. Co. v. Meyer, 94 Ark. 103, 125 S.W. 642; St. Louis, I. M. & S. Ry. Co. v. Dunn, 94 Ark. 407; Kansas City So. Ry. Co. v. Carl, 91 Ark. 97, 121 S.W. 932; St. Louis S.W. Ry. Co. v. Grayson, 89 Ark. 154, 115 S.W. 933.

But since the decision of the above cited cases, several cases involving the questions here considered have been decided by the Supreme Court of the United States which overrule our cases on the subject.

In the case of Adams Express Co. v. E. H. Croninger, 226 U.S. 491, 57 L.Ed. 314, 33 S.Ct. 148, decided January 6, 1913, judgment was asked for the full market value of a small package containing a diamond ring which was delivered to the express company in Cincinnati, Ohio, for shipment to Augusta, Georgia. The package was never delivered and judgment was prayed for the full market value.

The express company made defense by answer, the substance of which was as follows:

"That the defendant was an express...