Wells, Fargo & Co. v. Neiman-Marcus Co.

delivered the opinion of the court.

Action by a shipper against an express company to recover for the loss of a package of. furs shipped from New York to Dallas, Texas, and never delivered.

The receipt executed by the express company contained a clause exempting it from loss or damage not due to its fraud or negligence, and providing that it should in no event be held liable “beyond the sum of fifty dollars, at not exceeding which sum said property is hereby valued, unless a different value is hereinabove stated.” No different value was declared. The package weighed seven pounds. It contained furs enclosed in a paper box which was securely wrapped and tied with cord.

The defendants in error were permitted to prove that the actual value of the furs was four hundred dollars. That the consignors kept in their shipping office an express book containing blank express receipts. One of these was filled out in their office by their shipping clerk. When the wagon of the express. company called at the office, the agent signed the receipt, and the package was delivered to him by a boy assistant to the shipping clerk. No questions were asked as to the value and no value declared other than as shown in the receipt. It was also shown

There was put in evidence the table of graduated rate sheets on file with the Interstate Commerce Commission. These showed that the rates were graduated by weight and value. The rate from New York to Dallas upon a package weighing between five and seven pounds and valued at not over fifty dollars was one dollar, which was the rate applicable to and charged upon the package in question. If the value had been declared at four hundred dollars, the rate .would have been increased fifteen cents for each additional hundred dollars of value;

■ One of the provisions of the filed tariff sheets contained this direction, “Always ask shipper to declare the value, and when given insert’ it in the receipt, mark it on the package and enter amount on way bill. If shipper refuses to state value, write or stamp on the receipt, ‘value asked and not given.’” -

A jury was waived, and there was a judgment for the plaintiff below for the full value of the package.

The contract of shipment, including the clause for the limitation of any recovery in case of loss or negligence, is substantially like the contract upheld i'n Adams Express Company v. Croninger, 226 U. S. 491 . To take this case without the controlling influence of that case counsel f -‘'y that no Federal question based upon the validity of the shipping contract was raised in the state court, and

That such a clause may be void under the legislation of Texas may be true. But that it is valid, if fairly made for the purpose of applying to the shipment the lower of the two rates based upon valuation, is not now an open question. Adams Express Company v. Croninger, cited above.

That case had not been decided when this case was heard in the state court, and there was much diversity of opinion as to the meaning of that section when counsel made the concession. At most it was a concession for purposes of argument as to a matter of law and could not conclude any one, since it did not operate to withdraw the shipping contract from the case, nor its validity from the court’s consideration.

It is undoubtedly true that the principal defense upon which the defendants seem to have relied in the state court was, that by intentional misrepresentation the- plaintiff had obtained a rate based upon a valuation of fifty dollars, and that they had thereby secured transportation of the property, for which they sue, at a less rate than that named in the tariffs published and filed by the carrier as required by the acts of Congress regulating commerce, and thus obtained an illegal advantage and caused an illegal discrimination forbidden by the acts referred to. But this defense rested upon the misrepresentation as to real value declared only .in the carrier’s receipt, and, therefore, involved the consequence of the undervaluation by which an unlawful rate had been obtained. The question at last would-be shall the shipper or owner recover nothing

But it is a mistake to assume that the company did not rely upon the stipulation limiting a recovery in ease of loss or damage to the value agreed upon or declared. In the twelfth paragraph of its answer it asserted that if liable at all its liability “should be limited to $50.00, as provided in said contract of 'shipment, which $50.00 has heretofore been tendered to plaintiff.” By its eighth and ninth assignments of error in the Court of Civil Appeals error was assigned upon the refusal of the trial court to hold that the defendants in error were estopped, by the valuation declared, to recover any amount in excess of $50.00. The Court of Civil Appeals, while not in express terms denying the validity of such a stipulation limiting recovery, did so in effect, for it seems to have placed its judgment of affirmance upon the rule requiring the company’s agents to ask the shipper to declare the value and if no value is stated that the package should be stamped “value asked and not given.” This was not done. Therefore, said the court, “the company’s agent failed to perform a plain duty . . . and it is in no attitude to complain that the shipper did not state the value:"”

But the shipper in accepting the receipt reciting that the company “is not to be held liable beyond the sum of. fifty dollars, at not exceeding which sum said property is hereby valued, unless a different value is hereinabove stated,” did declare and represent that the value did not exceed that sum, and did obtain a rate which he is to be assumed to have, known was based upon that-as the actual value. There is no substantial distinction between

Judgment reversed and remanded for further proceedings not inconsistent with this opinion.