American Railway Express Co. v. Galt , 128 Miss. 81 ( 1921 )

Anderson, J.,

delivered the opinion of the court.

The appellee, W. H. Galt, recovered a judgment against appellant, American Railway Express Company, in the circuit court of Warren county for the principal of the amount sued for, ninety-eight dollars and seventy-eight cents, with interest and statutory damages of ten per cent., aggregating one hundred fifteen dollars and seventeen cents from which appellant prosecutes this appeal.

The facts of the case were agreed to, and in substance are as follows: Appellant was, at the time the alleged cause of action arose (and is now), an .interstate as well as intrastate common carrier of goods by express. Appellee had left his trunk and contents of the value of one hundred and fifty-five dollars with the National Park Hotel of Vicksburg, in this state, as security for a board bill of fifty-six dollars and twenty-two cents due the hotel by him. Later he instructed the hotel management to ship the trunk to him at Anson, Tex., by express, C. O. D. fifty-six dollars and twenty-two cents, the amount of said hotel bill, which was accordingly done; the shipment being made over the line of appellant through its office at Vicksburg. The trunk and contents were lost in transit, and never found. Appellant paid the National Park Hotel the C. 0. D. amount, fifty-six dollars and twenty-two cents, with an agreement, however, between appellant and appellee, entered into at the time, that such payment should not prejudice any right the latter might have against the former to recover from it the balance of the value of the trunk and contents — that is, the difference between the agreed value, one hundred and fifty-five dollars, and the said amount so paid. This difference appellee sued for, and recovered the judgment appealed from. When the shipment was made by the National Park Hotel the latter took from the agent of appellant at Vicksburg a receipt denominated “Uniform Express Receipt,” the face of which is in substantially the following form, and in the exact language here copied:

“Uniform Express Receipt.

“The company will not pay over fifty dollars, in case of loss, or fifty cents per pound, actual weight, for any shipment in excess of one hundred pounds, unless a greater value is declared and charges for such greater value paid.

“American Railway Express Go. (Incorporated).

“Nonnegotiable Receipt.

“Vicksburg, Miss. 11-8 1919.

“Received from Nat. Park Hotel subject to the classifications and tariffs in effect on the date hereof, one trunk to W. H. Galt, Anson, Texas, value herein declared by shipper to be- dollars. [See footnote.] Consigned to Collect C. O. D. fifty-six dollars and twenty-two cents at-. Charges/ War Tax. Which the company agrees to carry upon the terms and conditions printed on the back hereof, to which the shipper agrees, and as evidence thereof accepts and signs this receipt.

“[Signed] C. A. Logue, for the Company.

“-■, Shipper.

Note. — Tile company’s charge, except upon ordinary live stock, is dependent upon the value of the property, as declared or released by the shipper. If the shipper desires to release the value to fifty dollars for any shipment of one hundred pounds or less, or not exceeding fifty cents per pound, actual weight, for any shipment in excess of one hundred pounds, the value may be released by inserting Not exceeding fifty dollars,’ or Not exceeding fifty cents per pound,’ in which case the company’s liability is limited to an amount not exceeding the value so declared or released.”

The entire face of the receipt is printed matter, except its date, the name “National Park Hotel” as shipper, the description of the property, the name of the consignee, the C. O. D. fifty-six dollars and twenty-two cents and the name of the agent of the company, whigh were written in blanks intended for the purpose. On the back of the receipt there is certain printed matter headed “Terms and Conditions,” only paragraph 2 of which is pertinent, which follows:

“2. In consideration of the rate charged for carrying said property, which is dependent upon the value thereof and is based upon an agreed valuation of not exceeding fifty dollars for any shipment of one hundred pounds or less, and not exceeding fifty cents per pound, actual weight, for any shipment in excess of one hundred pounds, unless a greater value is declared at the time of shipment, the shipper agrees that the company shall not be liable in any event for more than fifty dollars for any shipment of one hundred pounds or less, or for more than fifty cents per pound, actual weight, for any shipmént weighing more than one hundred pounds, unless a greater value is stated herein. Unless a greater value is declared and stated herein the shipper agrees that the value of the shipment is as last above set out and that the liability of the company shall in no event exceed such value.”

There was introduced in evidence by ágreement of the parties the “official express classification No. 26,” which was on file in the offices of appellant, including its office at Vicksburg, as well as with the Interstate Commerce Commission, and which had been authorized by the latter; on page 7 of Avhicli is set out the form and contents of the express receipt to be used by express companies in their interstate business, of which the form of the receipt here in question, as well as the printed matter thereon, is an exact copy. This official classification further sets out the tariffs of charges of express companies for interstate shipments, which show the authorized charges on the trunk and contents in question from Vicksburg to Anson, Tex., to be as MIoavs: Based on a value of fifty dollars, two dollars and thirty-nine cents; on a value of fifty-six dollars and twenty-two cents, two dollars and forty-nine cents; and on a value of one hundred and fifty-five dollars, tAvo dollars and fifty-nine cents. On this shipment the express charges Avere to be paid at the destination, and were based by the agent of appellant at the initial point on a value of fifty dollars. Appellant contends, first, that, under the terms of said express receipt constituting the contract of shipment betAveen the parties, the extent of its liability is fifty dollars, and, if mistaken in this, then the limit of its liability is the said O. O: D. amount set out in the receipt, fifty-six dollars and twenty-two cents.

This being an interstate shipment, Avhat is known as the Carmack Amendment to the Interstate Commerce Act of 1887, as amended by the first and second Cummins Amendments (U. S. Comp. St., sections 8604a, 8604aa), is controlling of the questions involved; in the consideration of AA’hich'the radical change made in the act by the latter amendment should be borne in mind. The first Cummins Amendment simply provided in substance that interstate carriers should be liable “for the full actual loss, damage or injury’’ to the property shipped, “notwithstanding any limitation of liability or limitation of the amount of recovery, or representation or agreement as to value” in the receipt or bill of lading, contract, rule, regulation, or tariff of such carriers filed with the Interstate Commerce Commission; and such limitation, without respect to the form in which it is sought to be made, was declared to be unlawful and void. Act March 4, 1915, 38 Stat. 1196 (U. S. Comp. St., section 8604a).

The second Cummins Amendment provides that the inhibition declared in the first Cummins Amendment against any limitation of liability by the carriers, by means of contract or otherwise, should not apply to baggage carried on passenger trains or boats, nor to live stock shipped, and provides further that, as to all other goods shipped, the Interstate Commerce Commission should have the power to authorize or require the carriers by its order— “to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property [italics ours], in which case such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released, and shall not, so far as relates to values, be held to be* a violation of section 10 of this act to regulate commerce, as amended; and any tariff schedule which may be filed with the Commission pursuant to such order shall contain specific reference thereto and may establish rates varying with the value so declared or agreed upon; and the Commission is hereby empowered to make such order in cases where rates dependent upon and varying with declared or agreed values would, in its opinion, be just and reasonable under the circumstances and conditions surrounding the transportation.” Act Aug. 9, 1916, 39 Stat. 441 (U. S. Compiled Statutes 1916, p. 9290).

The official express classification and tariffs introduced in evidence, above referred to, are to be treated, in considering this case, as having been authorized by the Interstate Commerce Commission.

We will consider first the contention of appellant that the C. O. D. amount of fifty-six dollars and twenty-two cents set out in the express receipt constituted the declared or released value of the'shipment, and that therefore, under said statute, and the stipulations in said receipt, is the limit of the liability, of appellant. As it appears to the court, a mere reading of the receipt refutes this contention. In the first place it does not appear on the line intended for the declaration of value by the shipper. That line is blank. It appears on the next line below, which was intended for the name of the consignee. Furthermore, it is a matter of common knowledge that in express shipments the amount set opposite the letters C. O. D. is not intended always to represent the value of the article shipped. In many instances it only represents the initial payment by the purchaser, the-consignee, on the purchase price of the article shipped. It may represent the whole value or less than the whole value. To construe the receipt in question according to the contention of appellant would make it read' entirely different from what it does, and evidently different from the manner appellant’s agent, who wrote it, intended it should read.

We come now to appellant’s other contention, that, in the absence of a declared or released value written in the face of the receipt in the blank space provided for that purpose, then under the stipulations in said receipt the limit of its liability is fifty dollars. In considering this question it becomes necessary to have in mind the pertinent provisions of the receipt. We will first look at the provisions of the receipt which seem to bear out the contention of appellant. The first paragraph following the caption on the face of the receipt is:

“The company will not pay over fifty dollars, in case of loss, or fifty cents per pound,.actual weight, for any shipment in excess of one hundred pounds, unless a greater value is declared and charges for such greater value paid.”

And paragraph 2, on the bach of the receipt, which is made part of the contract by stipulation on the face of the receipt, among other things provides:

“Unless a greater value is declared and stated herein, the shipper agrees that the value of the shipment is as last above set out (same as provision last quoted above), and the liability of the company shall in no event exceed such value.”

On the contrary, the receipt has a blank space for the declaration of value by the shipper, preceded by the printed language, “Value herein declared by shipper,” and below the blank for the amount is, in brackets, “See footnote,” and the footnote referred to is the last paragraph on the face of the receipt, and is printed in much heavier type than the “Conditions” on the back of the receipt, and is in this language:

“Note. — The company’s charge, except upon ordinary live stock, is dependent upon the value of the property, as declared or released by the shipper. If the shipper desires to release the value to fifty dollars for any shipment of one hundred pounds or less, or not exceeding fifty cents per pound, actual weight, for any shipment in excess of one hundred pounds, the value may be released by inserting 'not exceeding fifty dollars,’ or 'not exceeding fifty cents per pound,’ in which case the company’s liability is limited to an amount not exceeding the value so declared or released.”

It will be seen from this footnote that it is expressly and plainly therein provided that, if the shipper desires to take advantage of the lower rate going with a released value, it is to be done by— “inserting not exceeding fifty dollars, or not exceeding fifty cents per pound, in which case the company’s liability is limited to the amount not exceeding the value so declared or released.” (Italics ours.)

In other words, action on the part of the shipper is necessary to bring about a reduced rate and limited liability; silence will not do it. So there seems to be a conflict in the provisions referred to; those first referred to tending to sustain the contention of’ appellant, while those last mentioned tend to sustain the position of appellee. It should be remarked here, rather by way of parenthesis, that we are unable to see how the classifications and tariffs containing said uniform receipts introduced in evidence could have been made in conformity to the second Cum-mins Amendment, which was enacted by Congress August 9, 1916, more than a year after such classifications and tariffs were filed with the Commerce Commission and became effective, which date was- September 10, 1915, as shoivn in the record by the agreed facts. But treating the same as in force at the time this cause of action arose, which was the theory of both parties in presenting the case to this court, as well as the court below, the question arises, which provisions of the receipt in question were authorized by the controlling federal statute referred to (Carmack Amendment, as amended by the first and second Cummins Amendments). And this question is solvable by the proper construction of that clause in the second Cummins Amendment, which empowers the Commerce Commission to authorize the carriers — “to maintain rates dependent upon the value declared in writing by the shipper, or agreed upon ■in writing, as the released value of the property(Italics ours.)

Like cases decided by the courts before the adoption of the last Cummins Amendment are not in point because of the change in the law made by such Amendment. In passing upon the statute as last amended the supreme court of West Virginia, in Lindenburg v. Am. Ry. Co. (W. Va.), 106 S. E. 884, a well reasoned case, said among other things:

“For some reason presumptively found in necessity or expediency, the statute requires the declaration or agreement as to value to be made in writing,' or rather does not authorize carriage under limited liability, nor the Commission to provide for it, except upon a written declaration or agreement as to value. In its prescription of the uniform receipt, the Commission has observed this requirement, by providing spaces for the value and the signature of the shipper. It has also interpreted the statute as requiring the carrier to give the shipper an opportunity to elect what value he shall declare, whether that specified in the classification for use in the absence of a declaration of any other, or some higher valuation, imposing upon him a higher rate for transportation. In other words, the receipt contemplates a declaration of value by the shipper, or an agreement with him upon the value in every instance. This seems to be the only interpretation of which the statute is fairly susceptible. It does not authorize either the Commission or the carrier to fix values. It says property may be authorized to be carried upon Tates dependent upon the value declared in writing by the shipper or' agreed upon in writing as the released valué of the property.’

“As, in this instance, the carrier did not take from the shipper a written declaration of value nor a written agreement as to value, signed by him, it failed to place itself within the requirements of the statute and the regulations of the Interstate Commerce Commission prescribed thereunder. In other words, it did not comply with the conditions precedent to its right to carry the property under a limitation of liability. It should have given him a receipt specifying a value fixed by himself, and evidenced by his signature. In doing so, it would have given him the option as to value contemplated by the law. In failing to do so, it denied him that option. Besides, it neglected to avail itself of the right conditionally conferred upon it by the statute and the regulations, by its failure to take his written declaration or agreement as to value. A writing not signed by him, although specifying value, was not a declaration or agreement in writing by him.

“Preparation and promulgation of regulations by the Interstate Commerce Commission and the posting of tariffs by the carrier, conforming to such regulations, do not alone limit the liability in any particular case. Although they may be constructive notice to the shipper, the carrier’s liability stands on the basis of full actual value, unless limited in the manner prescribed. Such limitation cannot be effected in any other way.”

To the same effect is Siebert v. Erie R. R. Co., 189 App. Div. 586, 179 N. Y. Supp. 136. And counsel do not cite us any case to the contrary. It will be observed that the West Virginia court decides that the shipper must make the declaration in writing, and in addition must sign the writing. However, we do not think it necessary to decide in this case whether the shipper must sign his name to the written declaration, although the receipt here in evidence is printed with a blank place for both the shipper and the agent of the carrier to sign.

It appears from the statute that it was the purpose of Congress to afford the shipper full value for his loss, unless he chose to take the initiative in the manner laid down by the statute — that is by declaring a released value in writing. It is left entirely optional with the shipper; the carrier has nothing to do with the matter, other than to accept the shipper’s declaration of released value in writing. The purpose of the statute is to give the shipper the active conscious choosing whether he will pay the lower rate and recover less than full value in case of loss or damage. If he so chooses, he sets down in writing in the receipt the released value. On the other hand, if he is silent either from choice or ignorance he pays the higher rate, which carries with it the right to recover full compensation for his loss. We are therefore of the opinion that the stipulations in the receipt relied on by appellee conform in substance to the statute; and to whatever extent, if any, those relied on by appellant conflict with those sustaining. appellee’s position, are unauthorized by the statute.

It follows from these views that mere silence gave the shipper the right to recover full loss, carrying with it an obligation to pay the higher rate.

Affirmed.