Southern Express Co. v. Pope

Powell, J. (After stating the foregoing facts.) The facts of the present transaction are so very similar to those involved in the case of Southern Express Co. v. Everett, 37 Ga. 691 (s. c. 46 Ga. 303), as to leave little or no reason for any attempt to distinguish them. In that case (46 Ga. 306) the Supreme Court said: “The carrier has a right to know the value of the article he is asked to carry, that he may take the better precaution to prevent persons from stealing it from him, or to prevent its loss from carelessness. An article of small value presents few temptations to the thief. The company may safely entrust it to less trustful agents, and take less pains to protect and preserve it. Valuable articles ought to be, and usually are, put in a safe and are delivered by the most trustworthy agents into the hands of the consignee. And for this extra care and risk a higher price is charged. The proof here shows that a small article of great value was, either designedly 'or carelessly, put in a common paper box, tied up with a string, and its value, either designedly or carelessly, concealed from the knowledge of the carrier. Who knows why? The evidence does not show; but if there was no special design — if the extra charge was not the thing sought to be got rid of, the gross negligence of the consignor amounts to fraud. It misled the carrier; it put him off his guard. He had a gem in his custody, a thing to be specially ■cared for, and he did not know it; and this want of knowledge was the fault of the consignor.” "This ease has been cited a number of times by our own courts and by the courts of other States. If any doubt existed as to whether merely an inference ■of fraud arises in such cases, so as to leave the question open for the jury, or whether the fraud is as a matter of law presumed, so as not to leave the matter issuable, that doubt was set ■at rest by the decision in the case of Southern Ex. Co. v. Wood, 98 Ga. 268 (25 S. E. 436). Among other things the court said in that case: “The silence of a shipper touching the character •and value of goods contained in a package which does not indicate Hiat its contents are of great or unusual value, or such an im 694 perfect description of its contents as misleads the carrier with respect to their nature and value, may, when the circumstances, require a full disclosure by the shipper, even in the absence of an inquiry by the carrier or of an actual intent to defraud by the shipper, amount to such a fraud as will discharge the carrier from liability on account of loss or destruction of the goods.” This is followed by a holding that under the facts, a verdict forth e defendant was demanded, and by a statement that such was also the case in So. Express Co. v. Everett, supra. The rule is in no wise local, as may be seen by reference to the notes to the case of Bottom v. C. & W. C. Ry. Co., 72 S. C. 375 (51 S. E. 985, 2 L. R. A. (N. S.) 773, 110 Am. St. R. 610). Of course, thera is no suggestion in this case that Mrs. Pope actually intended to perpetrate a fraud upon the carrier; she undoubtedly acted in perfect good faith; yet constructive fraud exists. From moraL fraud her agent, Youngblood, is likewise free; and yet, especially since the suit is ex contractu,_ Mrs. Pope is likewise charged with, his constructive fraud. See Central Ry. Co. v. James, 117 Ga. 832 (45 S. E. 223); Bell v. W. & A. R. Co., 125 Ga. 513 (54 S. E. 532). Upon the general proposition that the shipper must neither conceal the true value nor fail to disclose any unusual value not indicated by the nature of the package, see also the following cases. Green v. So. Ex. Co., 45 Ga. 305, 309; S., F. & W. Ry. Co. v. Collins, 77 Ga. 376 (35 S. E. 416, 4 Am. St. R. 87); Charleston Ry. Co. v. Moore, 80 Ga. 522 (5 S. E. 769; G. S. & F. Ry. Co. v. Johnson, 121 Ga. 231 (48 S. E. 807). The argument is further presented by the able counsel for the', express company that, under the act of Congress of June 29, 1906, e. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892), amending the interstate-commerce act of February 4, 1887„ e. 104, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3154), as well as. the act of June 29, 1906, amending the act of Congress of 1903 known as the Elkins act, c. 708, 32 Stat. 847 (U. S. Comp. St. Supp. 1907, p. 880), the contract sued upon was void, because the shipper, by accepting it as an agreement to carry the property at less than its true value, and therefore at less than the rate-hied with the commission, had been guilty of one of the devices-prohibited by those acts. The argument is interesting, but. whether it has validity or only plausibility we do not deem it 695 necessary to decide at present, as the case is so clearly controlled by the propositions stated above. Those interested in the question may, however, examine the cases of N. Y., N. H. & H. R. Co. v. Interstate Com. Com., 200 U. S. 397, (26 Sup. Ct. 272, 50 L. ed. 515), where it is held that an indifference to the prohibitions of the statutes may be equivalent to a wilful violation, and Armour Co. v. U. S., 209 U. S. 56 (28 Sup. Ct. 428, 52 L. ed. 681), where it is held that a device or contrivance need not be secret, fraudulent, or intentionally resorted to, in order to make the " shipper’s act criminal. See also “The Eeleased Eates Case,” 13 Int. Com. E. 564, and Brannon v. So. Ex. Co., Id. 513. On the other hand it seems that even the intentional giving' and accepting of an unlawful rate will not bar an action ex delicto against the carrier for loss or damage to the goods, if no fraud or concealment, actual or constructive, has been practiced upon the carrier as to the nature or the value of the goods. Merchants Cotton Press Co. v. Insurance Co., 151 U. S. 368 (14 Sup. Ct. 367, 38 L. ed. 195); Pond-Decker Co. v. Spence, 30 C. C. A. 450, 86 Fed. 846; Hutchinson on Carriers (3d ed.), § 547. Judgment reversed.