Wien v. New York Central & Hudson River Railroad

.Lattghlin, J.: As I view the case it is unnecessary to decide whether the defendant would have been liable for failing to procure the — 768 — return of the goods if plaintiff had left the matter in its hands on its agent’s undertaking or promise. The decision of that question would depend upon whether the negotiations constituted a new and valid contract as a carrier for the transportation of the goods back to the point from which they had been shipped, or only a contract for forwarding them (See Gulf, Colorado & Santa Fé R. Co. v. Texas, 204 U. S. 403), or merely an agreement to transmit further shipping instructions to the final carrier for compliance with which it would not be liable as a carrier. (Howatt v. Barrett, 156 App. Div. 849.) The plaintiff, after opening negotiations with the agent of the defendant for the return of the goods, acquiesced in the suggestion of the agent that he take the matter up with the agent in New York of the final carrier, on the ground that by so doing a return of the goods could be had a few days sooner than if the matter were left to the defendant to arrange. The testimony of the plaintiff with respect to his response to that suggestion is as follows: “ I said, very well, and I went to the office of the Atchison, Topeka and Santa Fe Railway Company on Broadway, and saw Mr. Mills,” and thereupon “opened the negotiations ” with him as the agent of the final carrier, and made no report or further application to the defendant. Under the so-called Carmack Amendment to the Hepburn Bill amending the Interstate Commerce Act, the defendant would have been liable not only for the negligent acts and omissions of its own employees, but for those of connecting carriers resulting in any loss or damage to the goods en route, and also for any loss or damage resulting from the failure of the final carrier to notify the consignee of the arrival of the goods 'at destination and for its failure, on the consignee’s refusing to accept them, to store the goods for the account of the shipper or to exercise proper care in holding them for him. (Adams Express Co. v. Croninger, 226 U. S. 491; Kansas Southern Railway v. Carl, 227 id. 639; Galveston, H. & S. A. R. Co. v. Wallace, 223 id. 481; Atlantic Coast Line v. Riverside Mills, 219 id. 186; Becker v. Pennsylvania R. R. Co., 109 App. Div. 230; Earnest v. D., L. & W. R. R. Co., 149 id. 330; Coovert v. Spokane, P. & S. Ry. Co., 80 Wash 87 ; 141 Pac. Rep. 324; Norfolk & W. R. Co. v. Stuart Draft — 769 — Co., 109 Va. 184.) The goods were consigned to the People’s Store at Coffey ville, Kans. There was no notation on the bill of lading or elsewhere with respect to notifying the shipper or any one else, and presumptively, therefore, the consignee was the owner, which distinguishes the case from Nashville, C. & St. L. Ry. Co. v. Dreyfuss- Weil Co. (150 Ky. 333; 150 S. W. Rep. 321), where the goods were consigned to the order of the shipper with directions to notify, at the place of destination, one Howe, who refused to accept them, and the initial carrier was held liable, on account of the failure of the final carrier to give it notice of the rejection of the consignment, for damages caused by fire while the goods remained in possession of the final carrier. The duty of notifying the consignor was predicated upon the ground that the bill of lading showed that it owned the goods. The general rule, well settled in this jurisdiction, is that the common-law liability of the carrier ends when the goods reach their destination and the consignee has had a reasonable time, after notice, to accept them and fails to do so or refuses to accept them, and that thereupon the liability of the carrier as a warehouseman commences, and that no duty devolves upon the carrier, as matter of law, to notify the consignor, at least where the consignee appears presumptively to be the owner, of the refusal of the consignee to accept the goods unless in the circumstances of the particular case reasonable care requires it. (Weed v. Barney, 45 N. Y. 344; Bacharach v. Lehigh Valley R. R. Co., 143 App. Div. 117; Manhattan Shoe Co. v. C., B. & Q. R. R. Co., 9 id. 172; Fenner v. Buffalo & State Line R. R. Co., 44 N. Y. 505.) In the case at bar it appears that the consignor had been notified by the consignee before he shipped the goods that they would not be accepted and that they would be left at the railroad depot at destination. There is no express provision, at least of the Interstate Commerce Act, requiring notice to the consignor of the refusal of the consignee to accept the goods, and it was held in Adams Express Co. v. Croninger (supra) that the Federal statutory liability, “aside from responsibility for the default of a connecting carrier in the route, is not beyond the liability imposed by the common law as that body of law applicable to carriers — 770 — has been interpreted” by the Federal courts as well as the courts of the States; and there is no decision of the Federal courts, to which our attention has been drawn or which we have been able to find, holding that such duty is imposed by the Federal statute. Assuming, however, for the purposes of the appeal, but without deciding the point, that it was the duty of the final carrier to notify the shipper of the refusal ' of the consignee to accept the consignment, and that the defendant would be liable for the failure of the final carrier to perform such duty, still the liability cannot be predicated on that ground here, for no damages are shown to have resulted therefrom, which is essential to warrant a recovery on the statutory liability. (See Earnest v. D., L. & W. R. R. Co., supra.) It appears that the consignee was duly notified and refused to accept the shipment, and that the goods were safely and properly stored or kept by the final carrier, and that the consignor was notified by the consignee that it had refused to accept the goods, and so informed the duly authorized agent in New York of the final carrier, and requested that the goods be returned in ample time, if the request had been honored, to avert any loss or damages in the premises. On the uncontroverted evidence the loss was due to the failure of the consignor to demand delivery of the goods to himself and to take charge of them at the point of destination, on the refusal of the consignee to accept them, as was his duty (See Norfolk & W. R. Co. v. Stuart Draft Co., supra), or to the failure of the final carrier, which was then acting as warehouseman, to comply with the instructions timely given by the consignor for the return of the goods to him. It may be that the defendant remained liable for the acts and omissions of the final carrier as warehouseman with respect to keeping the goods safely and would have been liable for failure to deliver the goods to the consignor or to his order at destination on the failure of the consignee to accept them, but we are- not called upon to decide that question now for the reason that there is no evidence of the breach of any duty on the part of the final carrier, either with respect to storage, preservation or delivery at the point of destination. The only arguable theory is that defendant is liable for its own failure or the failure of the final carrier to return — 771 — the goods when requested. But the defendant was under no obligation imposed by the common law or arising from the bill of lading it issued, or by virtue of the Federal statute, to return the goods in the event that the consignee refused to accept them. The obligation to return arose solely from the new contract negotiated after the consignee refused to accept the goods. The defendant cannot, in the circumstances, in my opinion, be held liable without so extending the liability of initial carriers as to render them responsible for failure of final carriers to perform any new contract negotiated between the shipper and them after the arrival of the goods at destination; and the theory on which the constitutionality of the law, in so far as it makes connecting carriers the agents of the initial carriers, has been sustained, does not, I think, so extend the construction as to make the connecting carriers the agents of the initial carriers in everything that they may do at any time with respect to the property, but only for the purpose of enabling the shipper to obtain redress from the initial carrier for any breach of the original contract of shipment regarded as a through contract. (See Atlantic Coast Line v. Riverside Mills, supra.) The only liability of the defendant was under the express and implied provisions of the bill of lading issued by it construed in the light of the Interstate Commerce Act; and it has not yet been held that such liability extends to a breach of duty or to a contract arising under subsequent negotiation between the shipper and final carrier for the further transportation of the property, whether to the point of original destination or to another point. (Gulf, Colorado & Santa Fé R. Co. v. Texas, supra; Howatt v. Barrett, supra; Sheehy v. Wabash R. Co., 169 Mich. 604; Ross v. Maine Central R. Co., 90 Atl. Rep. 711. See, also, Norfolk & W. R. Co. v. Stuart Draft Co., supra.) In Norfolk & W. R. Co. v. Stuart Draft Co. (supra), decided by the Supreme Court of Appeals of Virginia in 1909, it was held, construing the Carmack Amendment, that the liability of the initial carrier ends when the liability of the final carrier as a warehouseman commences; and that the initial carrier was not liable for damages resulting from the negligence of the final carrier while acting as a warehouseman after the refusal of the consignee to accept — 772 — the goods; but that question is not now presented for decision and we express no opinion thereon. In Coovert v. Spokane, P. & S. Ry. Co. (supra), which was decided in 1914, it was held that the initial carrier was liable for a wrongful delivery by the final carrier to the consignee without requiring the production of the bill of lading, after the consignee had returned the bill of lading to the consignor, at the same time notifying him that the goods would not he accepted, and after the consignor had surrendered the bill of lading to the initial carrier which had agreed to have the goods returned, and had duly notified the final carrier to return them. But that was a case of liability arising out of a wrongful delivery, which may be said to he within the express provisions of the Federal statutes, as will he seen presently, and is not, I think, authority for the contention that the initial carrier is liable for all acts of negligence on the part of the final carrier while acting as warehouseman. It is quite clear, I think, that there was no loss from “damage or injury” to the goods caused by the final carrier within the provisions of section 20 of the Interstate Commerce Act (24 U. S. Stat. at Large, 386, § 20, as amd. by 34 id. 593, 595, § 7)* known as the Carmack Amendment to the Hepburn Bill, which imposes liability on the initial carrier for such damages; nor is the respondent aided by the definition in section 1 of the Interstate Commerce Act (24 U. S. Stat. at Large, 379, § 1, as amd. by 34 id. 584, § 1, and 36 id. 544, 545, § 7) of the word “ transportation ” as used in section 20 thereof whereby it is declared, among other things, that “transportation ” includes “ all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported.” The plaintiff was aware that the consignment had not been delivered and that it was held by the railroad company in ample time for him to arrange, in the exercise of due diligence, to have it delivered to him at the point of destination, or returned to him before he would lose the benefit of his market or sustain any loss. There was no breach of the defendant’s contract to transport the property and to tender the delivery thereof, and, in the event of — 773 — the refusal of the consignee to accept it, to have it held or stored by the final carrier subject to the order of the shipper. There is no evidence that the market value of the goods had depreciated at the time plaintiff received notice that the consignee had refused to accept them, and that they were at the railroad depot and in possession of the final carrier, or for a long time thereafter. I am unable to agree with Mr. Justice Hotchkiss that the loss was caused by erroneous information with respect to delivery to the consignee imparted to the plaintiff by the agent of the final carrier, and I express no opinion with respect to the liability of the defendant for such misinformation if damages resulted therefrom. As already observed, the damages resulted from the failure of the final carrier to return the property as requested by the shipper, who accepted the suggestion of the defendant’s agent and took upon himself the negotiations with the agent of the final carrier for the return of the consignment, and for that breach of duty, which is the only theory on which liability could in any view of the case be predicated, the initial carrier is not responsible. I am, therefore, of opinion that the learned Appellate Term erred in reversing the judgment of the Municipal Court (See 85 Mise. Eep. 42), and its determination is reversed, with costs, and the judgment of the Municipal Court affirmed, with costs Clarke, Scott and Dowling, JJ., concurred; Hotchkiss, J., dissented. Footnotes [*] See 34 U. S. Stat. at Large, 838, Res. No. 47.— [Rep.