President of Conway Bank v. American Express Co.

Bigelow, C. J. We think this case was properly submitted to the jury to determine whether the defendants had exercised due care in the custody of the money which was intrusted to them. It does not seem to have been controverted at the trial that the defendants at the time the package was lost had ceased to have it in their keeping as common carriers, and that a correct rule was adopted by the court as to the standard of care by which the conduct and diligence of the defendants were to be measured. Certainly the instructions on this point were sufficiently favorable to the defendants. Ordinarily the duty of common carriers is to deliver articles at the place of destination to those persons for whom they are intended, and their responsibility as carriers does not cease until such delivery has been accomplished. But the contract of carriage may, in this respect, be essentially modified by express agreement; or by a usage or course of trade, by a particular mode of dealing between parties, by the well known and established practice of the carrier, and any other circumstances from which an intention of the parties can be clearly gathered to change the usual incidents of the contract, so as to put an end to the responsibility of the carrier as soon as the articles are transported by him to a particular terminus, and to substitute in its place the less stringent obligation of a depositary or custodian of property intrusted to him for safe keeping. Gibson v. Culver, 17 Wend. 305. Farmers & Mechanics' Bank v. Champlain Transportation Co. 16 Verm. 52; S. C. 18 Verm. 131, and 23 Verm. 186. Thomas v. Boston & Providence Railroad, 10 Met. 472. From the evidence reported in this ease, the inference is certainly a reasonable and fair one, that it was understood between the parties that the office of the carrier should be the place where the delivery of the money to the agent of the plaintiffs was to be made, and that after it was deposited there the defendants were no longer to be insurers of the property against all risks but those arising from the act of God and public enemies, but that it was there to continue in their possession until taken away by the plaintiffs’ agent, as bailees responsible only 516 for due and reasonable care in its custody and safe keeping. Such being the theory on which the case was tried by both parties, we have only to consider whether there was any error made by the court in its application to the facts in proof. In this aspect, the objections urged by the defendants resolve themselves into two. 1. The first is, that the evidence shows that the plaintiffs knew the place where the money was deposited and the mode in which it was kept and secured by the defendants, and that the jury should have been instructed that no action would lie to recover damages for the alleged negligence, because the plaintiffs assented to and acquiesced in the degree and kind of care which was adopted by the defendants in the custody of the money. We are not prepared to adopt, as a role of law applicable to the responsibility of parties, the doctrine for which the counsel for the defendants contends. Mere knowledge of the mode in which a depositary receives and takes care of property intrusted to him will not operate to absolve him from all liability to those who employ him with such knowledge, for a want of due care in the keeping of their property. Such knowledge, accompanied by evidence of long acquiescence without objection by an employer, might be evidence of an agreement as to the nature and degree of care which was to be used by the bailee. But beyond this, it would not be safe to go. A person might be willing to intrust his property to a carrier as warehouseman, intending to rely solely on his personal responsibility for its safety, irrespective of the particular mode adopted for its transportation and custody. Something more than silence and acquiescence would be necessary to absolve a party from the proper measure of responsibility which attaches to the business or calling which he assumes to carry on. Parties may change, modify or waive the legal incidents of a contract by agreement, express or clearly implied; but if there is no sufficient evidence of such agreement, the contract must take effect according to the rules of law applicable to it. Upon the statement of the evidence contained in these exceptions, it appears to us that it was wholly insufficient to warrant the instruction for which the 517 defendants asked. It fell far short of proving any waiver by the plaintiffs of the use of due care by the defendants in the custody of the money. To give effect to such waiver, it would be necessary to show a full knowledge by the plaintiffs of all the material facts and circumstances in relation to the manner in which the money was kept, and the risks to which it was exposed. Of these, there were several of which it does not appear that the plaintiffs had any knowledge whatever; especially it does not appear that they knew that the building in which the money was kept was left for several hours each day without any person to take charge of it, although during this time it was open to all comers; or that a person not in the employment of the defendants had free access, by means of a duplicate key, to the office in which the desk containing the money was kept; or that previous attempts had been made to break into the building by robbers at night. But, in addition to this ignorance of essential facts, it affirmatively appears that the plaintiffs through their president had distinctly informed the agent of the defendants that the place in which the money was kept was unsafe. In this state of the proof, it is difficult to see any ground on which a jury would be warranted in finding either a waiver by the plaintiffs of due care and diligence on the part of the defendants in the custody of the money, or any assent to the manner in which it was actually kept during the time it remained in their possession. 2. The facts already adverted to are decisive of the other exception taken by the defendants, that the court erred in refusing to rule that the evidence was insufficient to show a want of due care, or such negligence as to render them liable in this action. It certainly cannot be said that there was not a scintilla of proof of an omission to use that prudence and discretion which were adapted to the business which they undertook to perform for an adequate compensation. Exceptions overruled.