De Wolff v. Adams Express Co.

• Decision Date: 13 November 1907
• Citation: 67 A. 1099,106 Md. 472
• Parties: DE WOLFF v. ADAMS EXPRESS CO.
• Court: Maryland Court of Appeals

67 A. 1099

106 Md. 472

DE WOLFF v. ADAMS EXPRESS CO.

Court of Appeals of Maryland

November 13, 1907

Appeal from Baltimore City Court; Henry Stockbridge, Judge.

Action by Samuel De Wolff against the Adams Express Company. From a judgment for plaintiff for less than the relief demanded, he appeals. Affirmed.

Argued before BOYD, ROGERS, BURKE, and SCHMUCKER, JJ.

Eli Frank and Thomas C. Weeks, for appellant.

William S. Thomas, for appellee.

SCHMUCKER J.

The appellant in this case sued the appellee to recover the value of two diamond rings received by it in New York for transportation to Baltimore, but lost in transit, and never delivered to the consignee. The declaration charged the defendant with the loss of the rings through its own negligence, or that of its servants or agents, but contained no allegations of fraud or illegal conversion. The express company, in addition to the general issue pleas, set up by special pleas that it had undertaken to carry the rings only under the special contract, to be hereafter mentioned, by which the value of the rings had been fixed at $50, and that before the bringing of the suit it had tendered the plaintiff $50 in liquidation of its liability under the contract, but he had refused to accept it. The case was tried before the court without a jury, and at the close of the evidence the court rejected the plaintiff's prayers and granted one offered by the defendant, declaring as matter of law that "under the pleadings and evidence in the case the limit of the plaintiff's recovery against the defendant is $50." A verdict for that sum was thereupon rendered against the defendant, and judgment entered thereon, and the plaintiff appealed. One of the plaintiff's rejected prayers asserted the proposition that the receipt given by the company for the package containing the rings was not efficient in law to release it in whole or in part from its common-law liability as a common carrier for its own negligence or that of its agents or servants, even though the court sitting as a jury found that the receipt was accepted by the plaintiff's agent in New York at the time of the shipment of the goods. The other rejected prayer of the plaintiff fixed the measure of damages, in the event of a verdict in his favor, at the value of the rings. The record contains but one bill of exceptions, and that relates to the court's ruling on the prayers.

The following facts appear from an agreed statement of facts found in the record: On or about December 28, 1905, Henry McAleenan, a pawnbroker residing in New York City, shipped from that city to Baltimore by the Adams Express Company one small package consigned to the appellant. At the time of the shipment, the shipper did not disclose to the company the contents or value of the package, but, when he was asked by the company's agent what value he would place on the shipment, he stated no value, whereupon the agent delivered to him a receipt or bill of lading on which was stamped "Value asked, and not given," and the shipment was Aaccepted for transportation by the company, and the bill of lading was delivered to the shipper and accepted by him. The bill of lading is as follows: "The company's charge is based upon the value of the property, which must be declared by the shipper. (Nonnegotiable bill of lading.) Adams Express Company. 11 West 34th Street, New York. Dec 28, 1905. Received from McAleenan one Pa. marked 'S. De Wolff, Baltimore, Md.,' valued at $___, value asked and not given, which the company agrees to carry upon the following terms and conditions, to which the shipper agrees and, as evidence thereof, accepts this bill of lading: (1) The consideration of the rate charged for carrying said property, which is regulated by the value thereof and is based upon a valuation of not exceeding fifty dollars unless a greater value is declared, the shipper agrees that the value of said property is not more than fifty dollars, unless a greater value is stated therein, and that 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. Charges Coll. Liability limited to $50, unless a greater value is declared. For the company: Moran." It was also agreed that the plaintiff could produce as a witness the shipper, McAleenan, who would testify that the package when shipped contained two diamond rings, valued at $400. There is evidence in the record tending to prove that, according to the method pursued by the express company in fixing charges for transportation and handling shipments, if the true nature and value of the contents of the package containing the rings had been disclosed by the shipper at the time of shipment, the express charges would have been double what they were, and the package would, immediately upon its receipt, have been taken to the money department of the company's New York Office and handled on a jewelry waybill, and placed in a sealed jewelry trunk, and given in care of a special messenger in its transit to Baltimore, and there delivered in what is known as a "money delivery wagon" in an iron safe in charge of a guard in addition to the driver; and other special precautions involving greater expense would have been taken for its protection while in the custody of the company. By reason of the failure of the shipper to give, in response to the company's request, proper information as to the value of the package, it was handled while in the company's charge as a small package of ordinary merchandise, and came in due course of transit to the petty parcel room of the company in Baltimore, and there disappeared, and, although diligent search for it was made, it has never been found.

Under these circumstances, no error is to be found in the rulings of the learned judge below on the law of the case. It has several...