Southern Express Co. v. Armstead

B. F. SAFFOLD, J. The appellee claimed damages of the appellant, as a common carrier, on account of the loss of certain goods through its carelessness. The evidence was, in substance, as follows: M. Meyer & Co., merchants in Selma, sent to the express company’s office, by a drayman of their house, a box of goods, and a blank receipt for the same, to be signed by the company. The drayman returned with the box and receipt unsigned, saying the agent refused to take the box. A clerk of the house then accompanied the drayman to the express office, to see what he could accomplish. He was told by Warren, an agent of the company, that Wamble, the agent of carriage, had refused to take the box, because the railroad agent at Newbern, the place of destination of the goods, would not suffer his company to deposit goods in that depot. The clerk said, the box must go; whereupon Warren wrote on the back of the receipt, “ Wamble, please take this.” The drayman carried the box, and the receipt, to the railroad depot in Selma, where Wamble received the box, and signed the receipt, writing across its face the words “ owner’s risk.” The box was promptly carried to Newbern, and left on the platform [351] of the depot; Wamble calling tbe attention of the depot-agent to it as the property of tbe plaintiff, to whom it was consigned. Between tbat time and its reception by tbe plaintiff, it was broken open and rifled. Both tbe consignors and tbe consignee knew tbat tbe defendant bad no agent at Newbern; and tbe latter had, about the same time, received other goods by tbe same means, at “ owner’s risk.” Tbe goods were sent to him through the defendant, at his own request, though be bad been told by the railroad agent at Newbern not to do so, for he would not suffer them to come into bis depot. The court charged the jury, tbat if they believed tbe evidence they must find for tbe plaintiff ; and this charge is assigned as error. There was certainly no express contract made, because tbe receipt sent by Meyer & Co. was not signed by tbe defendant, as they presented it; nor did they accept it with tbe stipulation of “ owner’s risk,” imposed by tbe defendant’s agent. It was proved tbat tbe drayman had no authority to contract for Meyer & Co. about the carriage; nor Warren to give orders to Wamble; and tbat no contract was made between Warren and tbe clerk of Meyer & Co. No implied contract can be presumed, because tbe instances of carriage of goods for this plaintiff at owner’s risk were too recent to establish against him consent. Depositing the goods upon tbe platform of tbe railroad depot, in tbe custody of nobody, was gross carelessness. As it was done without agreement with tbe plaintiff, either express or implied, tbe charge of tbe court was correct. 2. Tbe limitation of the consignee’s right to recover to fifty dollars, when the value of tbe property described is .not stated by tbe shipper at tbe time of shipment, and specified in tbe receipt, as expressed in tbe receipt given in evidence, cannot be considered, as no receipt was given in this case. But if it could be, such a claim on the part of tbe appellant is untenable. In Railroad Company v. Manufacturing Co. (16 Wall. 318), it was said, that it was “ against the policy of the law and a serious injury to commerce to allow tbe carrier to say tbat the shipper of merchandise assents to tbe terms proposed in a notice, whether it be general to tbe public, or special to a particular person, merely because be does not express dissent from them. If tbe parties were on an equality in their dealings with each other, there might be some show of reason for assuming acquiescence from silence; but, in tbe nature of tbe case, this equality does not exist; and, therefore, every intendment should be made in favor of the shipper, when he takes a receipt for his property, with restrictive conditions annexed, and says nothing, that be intends to rely upon tbe law for tbe security of bis rights.” In this case, tbe limitation was expressed in the body of the [352] receipt; but the receipt was a printed one, and appears to have been such as was generally used by the appellant, without reference to the nature or value of the goods received. When such a limitation of liability is indiscriminately made, whether the goods be of great value, and put up in small compass, or of large bulk, and of value visibly beyond the limitation, no presumption of assent can, or ought to be indulged. It is more than questionable, whether the law will permit a common carrier to make such a stipulation, except in a case where the shipper expressly agrees to it after being informed of some sufficient reason why the carrier is not compelled to carry the goods. South Express Co. v. Caperton, 44 Ala. 101; R. R. Co. v. Manufacturing Co., supra. 3. The consignee of goods has a right to sue for their loss by the carrier, notwithstanding another party may be the owner of them. The obligation is to deliver to him. Generally, the property vests in him by the mere delivery to the carrier. Although the absolute or general owner of personal property may support an action for any injury thereto, if he have the right of immediate possession, this does not necessarily divest the right of the consignee to sue, notwithstanding he has never had the actual possession. 1 Chit. Plead. 6, 61, 153; Everett v. Saltus, 15 Wend. 474. Therefore, whether Mrs. Tinker was a joint owner of the goods with the plaintiff, or owned some interest in them, was not, alone, a material inquiry. An affirmative answer to the questions excluded would rather, in connection with the other evidence, have strengthened the plaintiff’s cause. There was no error in excluding the questions. The judgment is affirmed.