Farmers' & Merchants' Bank v. American Ry. Express Co.

On our former consideration of this cause, we were of the opinion, and so held, that a theft of a part of the package of money shipped by express should be classified asdamage to the shipment, rather than a loss of the shipment, and we attempted to dispose of the case on that theory.

On certiorari to the Supreme Court, by whose decisions we are bound (Acts 1911, p. 100), our holding in this respect was disapproved and it was held that the theft constituted a loss, for which claim must be made in writing to the originating or delivering carrier within four months after delivery of the property, as provided by the seventh section of the receipt given the appellant by the express company.

Appellant now insists that we decide the other questions urged by it on the original submission of this case, which this court did not deem necessary to decide, owing to the views entertained, as appear in our original opinion.

The appellant insists: (1) That the express company could waive the provisions of the seventh section of the receipt requiring the filing of the claim in writing. (2) That if it could not waive the provisions of the receipt itself, it might and did waive the manner of giving the notice. (3) That the evidence in the record shows that the express company either waived the provisions of the receipt requiring the filing of the claim, or that it waived the manner of giving said notice.

It is unnecessary to pass on these propositions, as we regard the rule in Ga. F. A. Ry. Co. v. Blish Milling Co.,241 U.S. 190, 36 S. Ct. 541, 60 L. Ed. 948, relating to a compliance with the provisions of the receipt, applicable here.

The record in this case discloses that the bank notified the express company at Samson, Ala., through its duly authorized agent, of the shortages occurring in the shipment of money promptly as they occurred; that said agent informed the bank that he would advise the express company of the shortages and get the matters adjusted; that the express company's agent was advised as to the amount of the shortage in each instance, and in each instance agreed to have the matter adjusted, and in that connection advised the bank that it would not be necessary to make claim in writing. It further appears that the bankat the same time, and in connection with its complaint, submitted to the express company's agent the letters from the National Park Bank of New York, its New York correspondent, together with affidavits showing the amount of the shortage, the conditions of the seals of the packages, and other details in connection with the loss. It further appears that at the agent's request, the bank wrote its New York correspondent for further and additional information regarding the shortages and particulars connected with the receipt of the packages by the New York bank, such as the name of the person who counted the money, the condition of the packages received, and the time of their receipt. All of this written information was furnished the express company at its request within the time required. Appellant insists that it practically and substantially complied with the conditions of the receipt relating to the filing of a claim.

We are of the opinion that these facts, and others of similar import, show a sufficient filing of the claim in writing as required by the seventh section of the express receipt. In other words, as was said by the Supreme Court of the United States in the Blish Milling Company Case, supra, we are of the opinion that this correspondence "established beyond question the particular shipment to which the claim referred and was in substance the making of a claim within the meaning of the stipulation — the object of which was to secure reasonable notice. * * * Granting that the stipulation is applicable and valid, it does not require documents in a particular form. It is addressed to a practical exigency and it is to be construed in a practical way."

It results from what has been said that this court is of the opinion that the judgment entered by the court below is erroneous and should be reversed, and a judgement is here rendered for the appellee, less the amount of the shortages disallowed by the trial court. The appellee is taxed with the costs of this appeal in accordance with the provisions of section 3666 of the Code 1907 (section 7226, Code 1923), and the costs of establishing the plea of set-off in the court below.

Reversed and rendered.