Clara Turner Co. v. New York, New Haven & Hartford Railroad

Hall, C. J. The complaint contains no averment of negligence upon the part of the defendant in any capacity. The finding shows no offer of proof of negligence. The sole ground of the alleged liability *78 of the defendant is that, at the time of the fire, the goods were in its possession as a common carrier. The averment of paragraph four of the complaint is that, ‘ ‘ while said property was in the possession of said defendant as common carrier,” said property was destroyed. In order to recover in this action, the plaintiff was required to prove this averment. The trial court held that it had been proved. The defendant’s appeals to this court question the correctness of the conclusions of the trial court, as above stated. The defendant’s principal claims before us are, in substance, these: First. That even if it be assumed that, in receiving and transporting the goods in question, the defendant was to act as a common carrier, yet the admitted facts, and the facts proved, show that, before the fire, there had been no such completed delivery to the defendant of the goods, for transportation, as rendered it hable as a carrier, for their loss. Second. That if the goods can be regarded as having been completely delivered to the defendant as a carrier, yet by the special methods in which they were to be delivered and carried, and by the terms of the release signed by the plaintiffs’ agent, the defendant became a private and not a common carrier of the goods; and that the defendant was relieved from the ordinary strict liability of a common carrier, and from any liability for the loss of the goods in question. The law is well settled that until the goods to be carried are delivered for immediate transportation, the receiver does not hold them in the capacity of common carrier. His liability in that capacity commences upon the complete delivery of the goods for immediate transportation. 1 Wyman on Public Service Corporations, § 393. In Barron v. Eldridge, 100 Mass. 455, the question arose whether certain flour and grain belonging to the *79 plaintiff, which was destroyed by fire while in the defendants’ shed and elevator, was held by the latter as warehousemen or as common carriers. The court, on pages 458, 459, said: “The responsibility of a common carrier, for goods intrusted to him, commences when there has been a complete delivery for the purpose of immediate transportation. . . . The delivery must be for immediate transportation, and, of course, it cannot be complete if anything remains to be done by the shipper before the goods can be sent on their way.” In Watts v. Boston & Lowell R. Corp., 106 Mass. 466, the property was destroyed by fire before transportation and before the shipper had delivered the entire lot to be shipped. The court said (p. 468): “It could not be said that the duty of carriage had commenced, until the whole had arrived. ... It [the ruling of the trial court] lays upon them the liability of carriers, while they have as yet assumed only the duties of warehousemen.” Other authorities to the same effect are: Murray v. International Steamship Co., 170 Mass. 166, 48 N. E. 1093; Judson v. Western R. Corp., 4 Allen (Mass.) 520; Tate & Co., v. Yazoo & M. V. R. Co., 78 Miss. 842, 29 So. 392; Kansas City M. & O. Ry. v. Cox, 25 Okl. 774, 108 Pac. 380; Basnight v. Atlantic & N. C. R. Co., 11 N. Car. 592, 16 S. E. 323; O’Neil v. New York Central & H. R. R. Co., 60 N. Y. 138; St Louis, A. & T. H. R. Co. v. Montgomery, 39 Ill. 335. There is perhaps not so much dispute as to the law applicable to this point, as upon the questions of what facts have been found respecting the delivery of the goods for transportation, and what inferences or conclusions could properly have been drawn by the trial from court from such facts. The plaintiffs, in accordance with the conclusion of the trial court, claim that the facts found show that *80 there was a delivery of the goods to the defendant as a common carrier, and that the defendant had them in its custody in that capacity at the time of the fire; while the defendant claims that the facts show that they were not so delivered to and held by the defendant. It is expressly alleged, both in paragraph four of the complaint and in the plaintiffs’ reply to the third defense, that the loading of the car had not been completed at the time of the fire. Regarding the delivery of the goods to the defendant, these facts appear from the finding: The defendant furnished the plaintiffs with a baggage-car to be used in the transportation of the plaintiffs’ theatrical goods, including two ponies, from New London to Middle-town. The car was to be loaded by the plaintiffs and was to be attached by the defendant to its passenger-train which left New London at 7:35 Monday morning. The plaintiffs were to give proper notice at initial points as soon as the car was loaded and ready to go forward, and were to assign a man to safeguard the goods in the car. The ponies were not to be placed in the car until Monday morning, and not later than one hour before the time the passenger-car was to.leave New London. They had not been placed in the car at the time of the fire, and no notice, other than that above stated, had been given, that the car was loaded and was ready to go forward, and it does not appear that the plaintiffs had assigned a man “to safeguard” the effects in the car. These facts clearly show that, at the time of the fire, the plaintiffs’ goods, which were to be transported by the defendant, had not been completely delivered, but that there remained something to be done by the shipper before they could be sent on their way. But the plaintiffs claim that it appears that on Saturday night they notified the defendant that everything was in the car; *81 that thereafter the defendant took charge of the car, and locked it, and moved it from the spur-track to a freight-track on the other side of the yard, and thereby took the plaintiffs’ property into its custody as a carrier. There was no other notice given than that the plaintiffs’ agent, at about twelve o’clock Saturday night, told an employee of the defendant, and who was not the yardmaster, but was standing near the car, that everything was in the car. The plaintiffs’ agent knew that the ponies were not in the car, and supposed that said employee knew they were not. He did not intend to be understood, nor suppose he was understood, as saying that the ponies had been placed in the car. It was evidently understood by both parties that the ponies were thereafter to be placed in the car. It does not appear by whom the car was locked, nor does it appear that the car was moved with the intention on the part of the defendant to thereby take control of the plaintiffs’ goods as ready for transportation. Apparently the car was moved by the defendant for the convenience of the plaintiffs in loading the ponies, and it does not appear to be material by whom it was locked. The trial court erred in its conclusion from the facts found that before the fire the plaintiffs’ property had been delivered to and received by the defendant for transportation as a common carrier. Our conclusion above stated controls the decision of both of said cases, and renders it unnecessary for us to decide said second claim of the defendant, as to the validity and effect of said release. There is error, and the judgments of the Superior Court in said cases are reversed, and the cases remanded with direction to render judgment in said cases for the defendant. In this opinion the other judges concurred.