Mobile, J. & K. C. R. v. J. T. Phillips & Co. ( 1912 )

Cook, J.,

delivered the opinion of the court.

. There are numerous assignments of error, but we are of opinion that none are well taken, and only one will he noticed because of its importance.

A certain package of freight when delivered to the intitial carrier was represented by the consignor to contain cotton fabrics in the original pieces. It appears that cotton fabrics in. the original pieces, according to the tariff, were carried at a lower rate than the actual contents of the package for the loss of which this suit was instituted. This was not an action for damage to freight, but for the failure of the railroads to deliver the package to the consignee. After the delivery of the package to the St. Louis & San Francisco Railroad Company at Memphis; it disappears from view, and the evidence does not show, or undertake to show, what became of it. There is no evidence to justify the inference that the package was ever delivered by the initial carrier to the connecting carrier, the Mobile, Jackson & Kansas City Railroad Company — in fact the evidence is entirely silent upon that feature of the case.

Coming now to a consideration of the point, which is of first impression in this state, so far as we have been able to ascertain, the exact point has not been decided by the courts of any of the states, or raised in any case brought to our notice. It is contended that the misrepresentation as to the contents of the package was a gross and deliberate fraud to obtain a lower freight rate— and, inasmuch as the carrier did not undertake to carry the package actually delivered, the contract of affreightment was absolutely void and no action can be predicated thereon. In all the cases cited, and in all the authorities examined by us, the doctrine invoked to defeat a recovery in this case does not extend so far as is contended by appellants.

It seems to be, and indeed must be, the law that, if the loss or damage is caused by the act or omission of the shipper, the owner must bear the loss. This is but an application of the exact principles of justice and reason. If my silence upon or misrepresentation of the facts is the cause of my injury, it follows that I must, suffer the consequences of my own fraud or folly. The failure to speak, or the false statement of the facts, must in some way contribute to the event — in this case to the loss of the package. If the omission of duty or the fraudulent representation misleads the carrier, and causes it to omit such precautions as were necessary to the safe transportation and delivery of the package, the owner must bear the burden of its agent’s fraud or negligence.

To this extent the law invalidates the contract of carriage, but where it appears, as in the present case, that the statement that the package contained cotton fabrics in the original pieces could in no imaginable circumstances have- misled the carrier to its prejudice, the reason for the application of the righteous doctrine invoked by appellant does not exist. To burden appellee with consequences with which the wrong charged against his agent has no connection, and which would have followed had. the true character of the shipment been disclosed, would be as rank injustice as to hold the carrier responsible for a loss caused by the shipper. The entire principle invoked here and the reasons underlying its enforcement by the courts is discussed by the text-writers. See Hutchinson on Carriers (3d Ed.), sec. 328 et seq.; Moore on Carriers, p. 355 et s$q.

The record does not show that the Mobile, Jackson & Kansas City Railroad Company received the package, and the cause is reversed and the suit dismissed as to it, but the case is affirmed as to the St. Louis & San Erancisco Railroad Company.

Dismissed in part and affirmed in part.