Poliakoff v. American Railway Express Co. ( 1921 )

January 31, 1921. The opinion of the Court was delivered by This is an action for the alleged failure on the part of the defendant, to deliver a certain package of clothing, consigned by the plaintiff from Blackville, S.C. to the Knickerbocker Clothing Company of New York City.

The defendant, by way of defense, relied upon the receipt for the package, as limiting the amount of recovery to $50; the receipt containing this provision:

"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 100 pounds or less and not exceeding fifty cents per pound, actual weight, for any shipment in excess of 100 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 100 pounds or less, or for more than fifty cents per pound, actual weight, for any shipment weighing more than 100 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."

The jury rendered a verdict in favor of the plaintiff for $329, and the defendant appealed upon exceptions, which will be reported. The appellant's attorneys state that the exceptions, when taken together, involve a single proposition, to wit: Did the contract between the parties limit the amount to be recovered, in case of loss, to $50?

This Court has just rendered a decision in another case between the same parties, in which it construed the provisions of a similar receipt, and held that the limitation of a recovery to $50, in a case of loss, was binding on the shipper. But that is not the question in the present case. In this case the main question is whether the plaintiff entered into the contract embodied in the receipt. His Honor, the presiding Judge, submitted this question to the jury; and the appellant's attorneys contend that in so doing he committed error. The plaintiff thus testified:

"I am a merchant at Blackville, and in September, 1918, I shipped a package of merchandise to the Knickerbocker Clothing Company. The package was consigned to me at Blackville, S.C. and it was not what I wanted; so I wrapped it up with the same package it came in, and sent it back to the express office, by the driver of the express wagon. * * * $409 was the value marked on the package. I showed this to the boy on the wagon. I did not get a receipt right away, but got it a few days or a few weeks after that. I learned that the package was not delivered, and went to the express company and got a receipt. I asked the agent about the value, and he said: ``I did not know how much it was.' That this receipt was obtained several days afterwards, and I did not sign the receipt. I asked him to put the value on, when he turned the receipt over to me, and he would not do it."

A witness for the defendant testified that the negro who drove the express wagon around Blackville was an employee of the agent, and not of the express company. The defendant also introduced other testimony contradictory of that in behalf of the plaintiff, which made an issue for the jury.

The case of Banks v. Express Co., 73 S.C. 211,53 S.E. 166, shows that the testimony introduced by the plaintiff and the defendant made an issuable fact for the jury. It is unnecessary to cite authorities to show that the other facts were properly submitted to the jury.

Affirmed.

MR. JUSTICE GAGE did not participate on account of sickness.