Wells, Fargo Company v. Company

• Citation: 57 L.Ed. 600,227 U.S. 469,33 S.Ct. 267
• Decision Date: 24 February 1913
• Docket Number: No. 29,NEIMAN-MARCUS,29
• Parties: WELLS, FARGO, & COMPANY et al., Plffs. in Err., v. COMPANY
• Court: United States Supreme Court

227 U.S. 469

33 S.Ct. 267

57 L.Ed. 600

WELLS, FARGO, & COMPANY et al., Plffs. in Err.,

v NEIMAN-MARCUS COMPANY.

No. 29.

Argued and submitted November 5, 1912.

Decided February 24, 1913.

Messrs. Charles W. Pierson and William W. Green for plaintiffs in error.

[Argument of Counsel from page 470 intentionally omitted] Mr. Rhodes S. Baker for defendant in error.

[Argument of Counsel from pages 471-473 intentionally omitted] Mr. Justice Lurton delivered the opinion of the court:

Action by a shipper against an express company to recover for the loss of a package of furs shipped from New York to Dallas, Texas, and never delivered.

The receipt executed by the express company contained a clause exempting it from loss or damage not due to its fraud or negligence, and providing that it should in no event be held liable 'beyond the sum of $50, at not exceeding which sum said property is hereby valued, unless a different value is hereinabove stated.' No different value was declared. The package weighed 7 pounds. It contained furs inclosed in a paper box which was securely wrapped and tied with cord.

The defendants in error were permitted to prove that the actual value of the furs was $400. That the consignors kept in their shipping office an express book containing blank express receipts. One of these was filled out in their office by their shipping clerk. When the wagon of the express company called at the office, the agent signed the receipt, and the package was delivered to him by a boy assistant to the shipping clerk. No questions were asked as to the value, and no value declared other than as shown in the receipt. It was also shown that the clerk who wrapped and marked the package did not know the value, and had no actual knowledge of the graduated rates of the express company, and that he had had nothing to do with the selling or buying of the furs. One of the consignors, Abraham Jacobson, sold the furs personally and testified as to their value. He testified that he knew that if the value had been declared to be $400, the express rate would have been higher, and that if no value was especially declared, they would be carried under the express rate applying to a package valued at not in excess of $50.

There was put in evidence the table of graduated rate sheets on file with the Interstate Commerce Commission. These showed that the rates were graduated by weight and value. The rate from New York to Dallas upon a package weighing between 5 and 7 pounds, and valued at not over $50, was $1, which was the rate applicable to and charged upon the package in question. If the value had been declared at $400, the rate would have been increased 15 cents for each additional $100 of value.

One of the provisions of the filed tariff sheets contained this direction: 'Always ask shipper to declare the value, and when given insert it in the receipt, mark it on the package, and enter amount on waybill. If shipper refuses to state value, write or stamp on the receipt, 'Value asked and not given."

A jury was waived, and there was a judgment for the plaintiff below for the full value of the package.

The contract of shipment, including the clause for the limitation of any recovery in case of loss or negligence, is substantially like the contract upheld in Adams Exp. Co. v. Croninger, 226 U. S. 491, 57 L. ed. ——, 33 Sup. Ct. Rep. 148. To take this case without the controlling influence of that case, counsel say that no Federal question based upon the validity of the shipping contract was raised in the state court, and for this they rely upon a paragraph in the brief of one of the counsel for the express company, filed in the court below, in which it is said: 'For the purpose of this case, we are...