Place v. Union Express Co.

By the Court, Daly, First Judge. The defendants claim to be exempt from liability upon the ground that, as expressmen, they are merely forwarders, and not common carriers; and we are referred to the case of Hersfield v. Adams (19 Barb. 577), as authority for the proposition that express companies, who agree to transport goods or packages from place to place, for hire, in the ordinary and approved means of conveyance, who are not owners of, nor interested in, the vessels, boats, or other conveyances by which the goods are transported, are not common carriers, but mere forwarders, subject to ho greater liability than ordinary bailees for hire. The case is a special term decision, ion given by the late Justice Morris, and this point was not essential to its determination, as the defendants had limited their liability by a written contract, which they might do as common carriers. Dorr v. N. J. S. Nav. Co., 1 Kernan, 485. No authority was cited for the opinion expressed, which proceeded, in my judgment, from the want of a due consideration of what is sufficient in law to constitute a common carrier. It is a calling very distinct from that of a forwarder. A forwarder is one who, for a compensation, takes charge of goods entrusted or directed to him, and forwards them, that is, puts them on their way to their place of destination by the ordinary and usual means of conveyance, or according to the instruction he receives. Platt v. Hibbard, 7 Cow. 499; Ackley v. Kellogg, 8 Cow. 223; Brown v. Denison, 2 Wend. 593. Where he has a warehouse for the reception and safe keeping of the goods until they can be forwarded, he unites the two-fold occupation of warehouseman and forwarder, which is the usual mode of conducting the business in this country. His compensation is limited to his care and — 26 — trouble, and the charges paid by him, in receiving, keeping and duly forwarding; and, when he has placed the goods in the course of transit by the proper conveyance, his duty is at an end. His occupation is further distinguished from that of the carrier by the circumstance that he has no .interest in, and receives no part of, the compensation that is paid for the carriage and due delivery of the goods. A common carrier is one who, for a reward, undertakes to carry goods for persons generally as a public employment, or, in the language of Mr. Justice Story, “ one who holds himself out as ready to engage in the transportation of goods for hire as a business, and not as a casual occupation pro hac vice.'1'1 Story on Bailment, § 495. An express company, therefore, who hold out to the public that they will take goods or parcels to be delivered at certain points or places, and who receive, or are to receive, the compensation that is paid for the carriage and delivery, are common carriers, and it is wholly immaterial whether they own or are interested, or not, in the conveyances by which the goods are transported, as it is the receipt, or the right to, the freight or charge for the carriage, together with the public nature of their employment, that makes them common carriers. The defendants in this case acknowledge, in writing, that they had received certain packages, which, by the writing, they agreed “ to deliver at the depot at Milwaukee on the payment of freight according to the conditions of the company’s tariff, classification and rules,” which were endorsed upon the receipt, and made a part of it. This was engaging, as common carriers, to deliver the goods at the depot at Milwaukee, and subjected them to all the obligations incident to that employment, except so far as they had limited their liability by express stipulation. By their contract they agreed to deliver each package receipted for, in twelve days after the date of the receipt, stipulating against accidents and casualties beyond their control, and particularly that their “ guaranty of special despatch ” should not “ cover cases of unavoidable or extraordinary casualty.” They also provided that “fruit ” (which the packages contained) should be “at — 27 — the owner’s risk of fracture or injury during the course of transportation, loading, and unloading.” That they would not be liable for injury to any articles of freight during the course of transportation, occasioned by the weather, or accidental delays, or natural tendency to decay. That they would pay five cents per 100 pounds per day for each day the goods were delayed beyond contract time, if not delivered as per agreement; and that all claims for damages, overcharges, or any other cause, should be made, and presented for settlement at their office in New York. These stipulations and limitations of liability they had a right to make, and the rights of the parties are to be adjusted in accordance with them. The witness Douglass swears that the 100 boxes of oranges receipted for by the defendants on the 26th of April, 1856, arrived on the 17th and 21st of May, 1856. Of the lot of fifty boxes receipted for by the defendants on the 9th of April, 1856, forty-four boxes were received by the consignees on the 8th and 9th of May, 1856. The six remaining boxes have not been accounted for. The precise time of the arrival of the 100 boxes has been proved; but, in respect to the forty-four boxes, it is urged that proof of the time of their receipt by the consignees is not proof of the time of their arrival; and that, for all that has been shown upon the part of the plaintiff, they may have arrived within the contract time. As this action is for damages occasioned by the neglect or failure of the defendants to transport and deliver the property within the prescribed time, it is of course incumbent upon the plaintiff to show a breach of the contract. The goods were to be delivered at the depot at Milwaukee, and, as a general rule, where freight is to be delivered at a wharf, depot, or designated place, and the consignee is not there to receive it, it is the duty of the carrier to notify the consignee of its arrival. Gibson v. Culver, 17 Wend. 305; Fisk v. Newton, 1 Denio, 45; Price v. Powell, 3 Comst. 322; Angell on Carriers, §§ 315, 316. In this case, the consignees at Milwaukee were denoted upon the bill of lading simply by initials. This may give rise to some doubt as — 28 — to whether the direction was sufficient to impose this duty on the defendants, which I shall not stop to consider, as the objection raised may he otherwise disposed of. The exact time of the arrival of the forty-four boxes being a matter peculiarly within the knowledge of the defendants, very slight evidence on the part of the plaintiff, in respect to the time of their arrival, was sufficient to throw the onus upon the defendants of showing when they arrived. One of the consignees having testified that he received them on the 8th and 9th of May, I think the justice was warranted in concluding that they had arrived about that time. This witness’ testimony was taken cle bene esse, and reduced to writing. In one part of it, he uses the word “ received ” on the 17th and 21st of May, as applied to the 100 boxes, and, when asked again when they were received, he answers they arrived on the 17th and 21st of May. This was evidence, in respect to that lot, that he received them on the respective days of their arrival. It was therefore some evidence to warrant the inference that the same thing took place in respect to the other lot—that is, that they arrived on the 8th and 9th of May, the days when the witness received them ; or, if not, the testimony of the witness is susceptible of this interpretation, from the manner in which he uses the word, that he meant, by “received,” “ arrived.” In either way, it was sufficient, in my judgment, to require at the hands of the defendants proof if the fact was otherwise, as they had knowledge, through their agents, of the exact time of the arrival; and as the witness was examined de bene esse more than twenty days before the trial, they cannot claim to have been taken by surprise. Proof by the consignee, also, that he received but forty-four boxes, was, for the same reason, sufficient prima facie that the remaining six boxes had not been delivered; sufficient at least to require from the defendants proof that they had been delivered, if such was the fact. For the six boxes, then, the,defendants were liable. Regarding the evidence of the time of the arrival of the other boxes as sufficient, it was incumbent upon the defendants to account satisfactorily for their delay in not delivering them within — 29 — the contract time ; for, if the goods were deteriorated or injured in consequence of that delay, the plaintiff was entitled to be compensated for the damage sustained. It is urged that, as the boxes contained fruit, which, by the agreement, was to be “ at the owner’s risk of fracture or injury ” during the course of transportation, or of loading, or unloading; and, as the defendants were not to be liable for the natural tendency of any article to decay, they were not responsible for the rotten and damaged condition in which the oranges and lemons were when they were delivered at Milwaukee. This must be understood, however, as applying to decay or injury to which the fruit might be subject during the prescribed time within which the defendants undertook to deliver it at Milwaukee. It was a perishable article, and it would be absurd to say that, if it perished by reason of the defendants’ neglect to perform their contract, they would not, in consequence of this stipulation, be answerable for the loss. It was in evidence that the oranges and lemons were in good order at the time of shipment, and that, with the weather that prevailed in the months of April and May, 1856, oranges would keep for 25 days, and that then they would decay very rapidly. If kept or delayed, then, upon their carriage, much over that time, their decay and total loss was inevitable; and it would be doing the greatest violence to language to suppose that, under an agreement to transport them in twelve days, the parties meant, by “ injuries in the course of transportation,” or “ natural tendency to decay,” injuries or decay after that time, arising from the defendants’ neglect to transport and deliver them. In other words, that the defendants might, with impunity, neglect to perform their contract until, from the perishable nature of the property, it became entirely worthless. It is not to be supposed that any public carrier would deliberately put forth such a reservation in favor of his own negligence ; or, if he did, that any owner of property would agree that it might be transported upon such terms. Even if no time had been agreed upon, the defendants would have been bound to have completed their contract within a reasonable time, and, if they had failed to do it within that time without legal — 30 — excuse, and the property afterwards, and before delivery, had become injured from its natural tendency to decay, they would have had to make good the loss. The transportation contemplated by such agreements, is a transportation within the time prescribed, or within a reasonable time, during which period, including the period of loading and unloading, the enumerated articles are at the owner’s risk of fracture or injury ; and, as respects all other property, the defendants, within that period, are not liable for injuries occasioned by the weather, natural tendency to decay, or accidental delays. It is further urged that the agreement of the defendants to pay five cents per 100 pounds per day for each day the goods might be delayed beyond contract time, is the extent of their liability for any damage or injury to the property. But this is an agreement to pay a certain sum for each da)r’s delay in the delivery, and is recoverable where the defendants deliver the goods after the contract time, though in as perfect a state as they received them. It is not an agreement to pay for loss or damage, but is recoverable whether loss or damage is sustained or not. The owner may actually sustain no loss. The goods may have largely increased in value at the time of their actual delivery, and yet this sum, which the defendants contracted to pay in a certain contingency founded upon the consideration of the payment to them of the stipulated freight, would be due and payable. Suppose the goods to have been lost through the defendants’ negligence, in that they were unable to make any delivery at all; is this per diem allowance to be a perpetual charge upon the defendants ? What construction would be given to this provision in such, a case. Would it be regarded as the mode or rate at which the plaintiff was to be compensated for his loss and damage? Clearly not; but as applicable only to cases where the property was delivered uninjured, but after the contract time. This, in my judgment, would be the fair and legal interpretation of it. The plaintiff having shown that there was a delay of nine days in delivering the forty-four boxes of the first lot; that the re — 31 — maining six boxes of that lot had not been delivered; that there was a delay of sixteen days in the delivery of the second lot; that some of the boxes were broken, and the fruit had run out; together with the market value of the goods at Milwaukee at the time when they were to be delivered, and the extent to which they had depreciated in value from rot or decay when they were delivered; had, in my judgment, established a case which entitled him to recover. The evidence was sufficient to warrant the justice in concluding that the decay and injury of the fruit was the result of the delay in its delivery. It is insisted that as, by the agreement, all claims for damages were to be presented at the New York office for settlement, it was incumbent upon the plaintiff, as a condition precedent to the defendants’ liability, to show that he presented his claim for settlement at that office, and that, without proof of that fact, he could not maintain this suit. This reservation, however, is no stronger than that contained in a promissory note which the maker promises to pay upon demand ; in respect to which it has been held that the commencement of the suit is a sufficient demand; or which the maker promises to pay on a particular day at a particular place, in which it is not necessary to aver or prove, to charge him, that a demand was made at the time and place. His readiness to pay at the time and place, or at the commencement of the suit, is matter of defence which goes only to the question of interest and costs, and not to the cause of action, of which he must avail himself by pleading the fact specially, and bringing the money into court. Haxtun v. Bishop, 3 Wend. 21; Walcot v. Van Santvord, 17 John. 248; Green v. Goings, 7 Barb. 652. The defendant’s answer here was a general denial, and it does not appear that he made any tender in the court below of the amount which the plaintiff recovered, or admitted that he was liable at all for any amount. The remaining question in this case, is whether the evidence offered by the defendants established, in the language of their agreement, that the delay was accidental, or the result of unavoidable or extraordinary casualty. They proved that they sent the goods by the N. Y. Central Railroad, the Suspension Bridge, — 32 — and the Great Western Railroad, through Canada, and that they had no arrangement with any other road. That in March, April and May, 1856, the Great Western road was not able to take freight as fast as the New York Central could deliver it. That the Great Western road was building a new freight-house on the Canada side, and that there was some disarrangement of the road. That that road was at least ten days behind, upon an average. That in those months there was a great accumulation of freight at the bridge. Some freight lay there ten or fifteen days. That the cause was a snow storm, the building of the freight-house on the Canada side, and the disarrangement of the Great Western road. That they could have sent the freight by another route, the New York and Erie Railroad, but they had no arrangements with that route. Even if this evidence was sufficiently specific and certain to show that the delay in the delivery of these particular goods, proceeded from the causes above stated, it did not show that it was the result of accidents or casualties beyond the defendants’ control. Engaged, as the defendants were, in the transportation of goods as a business, it was their duty to know the condition and possibilities of transport afforded by the routes which they selected before entering into an express contract to transport goods within a stipulated number of days, especially as the causes which they now set up as their excuse, were not of sudden development or temporary duration, but extended over a period ot three months. The chief causes, the disarrangement and want oí facilities on the Great Western road, they knew, or should have known. One of the members of their company was at the Suspension Bridge in March, to attend to the getting of the freight through for the company. In the latter part of March there was a large accumulation of freight at the bridge, and while he was there, there was a snow storm that stopped the cars on the Central side. He was there again between the 18th and 23d of April, some days before the last of the two lots were shipped, and the Great Western Railroad Company having built a new depot for the transfer of freight, they had not got their tracks laid, and, instead of sending on 100 cars a day, as they anticipated, they — 33 — could only send 30 or 40. All this, it would seem, was known to the defendants, or to the member of their company whose business it was to attend to getting the freight through, and who, by his own statement, knew the capacity of the roads which the defendants made use of for carrying freight in April and May. The route being thus obstructed, the defendants ought not to have made such contracts, or, making them, they should have sent the goods by another route. Their witness testified that the fruit could have been sent by the Hew York and Erie Railroad. It is suggested that that road may have been obstructed also. If it was, it was for them to show it; for them to make out that the delay was unavoidable—the result of causes beyond their control. With a knowledge on the part of a member of their company that the route was obstructed in March, that there was a large accumulation of freight at the Suspension Bridge in the latter part of March, they saw fit, on the 9th of April, to enter into a contract to deliver at Milwaukee in twelve days, which, with culpable ignorance or actual knowledge, they undertook to execute by sending the goods by a route, the condition of which, according to the showing of their defence, was such that they could not be transported within that time. They either contracted to do what they knew to be impossible, or, being possible, neglected to avail themselves of a route by which, according to their own witness, the goods might have been sent. If there was any difficulty or obstruction upon that route, it was for them to prove it. They did the same thing again, and under the same state of things, on the 26th of April, and all that need be said is that they must answer for the consequences. Where there is an express contract to carry within a prescribe time, the carrier is held to a rigid performance of it, and is not excused even by inevitable necessity, unless he has provided against it by express stipulation. Angell on Carriers, § 294. On such a contract, no cause of delay can be pleaded except it has been distinctly reserved and named in the contract. The causes provided against in the contract are accidents or casualties beyond the defendants’ control; or, as it is expressed in another — 34 — part of the writing, cases of unavoidable or extraordinary casualty. They did not establish that the delay was beyond their control, or the result of unavoidable casualty. For all that appeared, it was, or may have been, in their power to have transported the goods within the twelve days. Judgment affirmed.