Finn v. Western Railroad

Wells, J.* It is contended that, if the goods were shown to have been properly delivered to the defendant, so as to create the liability of a common carrier, they thereby became the property of Clark, the consignee; and so it would result that the action cannot be maintained by Finn. This seems to have been the point upon which the case of Finn v. Clark, 10 Allen, 479; S. C. 12 Allen, 522, was decided. That case settled the fact that, as between Clark and Finn, the title to the property remained in Finn. But the defendant was not a party to that suit, and cannot set it up in this action as an estoppel against Finn, upon the question of such delivery. The defendant also contends that, upon the evidence and instructions to the jury, the verdict must have been rendered upon the ground that the defendant had proper means of knowing the destination of the goods, and that there was a neglect to forward them within a reasonable time, and so a breach of the contract, more than six years before the date of the writ. If this were so, the right of action which would thereupon accrue would be only for the recovery of such damages as resulted from the delay of transportation. The right to recover the whole value of the property, which is the foundation of this action, [289] did not accrue, if at all, until the property was destroyed by fire, within six years before the date of the writ. It is conceded that the defendant is not liable in this action unless chargeable as a common carrier. The receipt of the goods, without proper instruction or information as to their destination, would not impose upon the defendant any duty as a carrier. No such instruction or information was received from the master of the vessel by which the goods were brought to the defend ant, nor from the bill of lading. The name and residence of Clark, written “ with a lumberman’s pencil, on about one bunch in six or eight of the whole lot” of bunches of shingles, did not appear to have been pointed out to the defendant’s agent, nor seen by him; and the court below held that it would not be sufficient to make the defendant responsible. But the instructions given to the jury authorized them to find that the defendant received the goods as a common carrier, if they were “ satisfied upon the whole evidence that the defendant’s agents knew or ought to have clearly known that they came from the plaintiff at Olean, and were by him sent to Clark at Westfield, or Southampton, and they received them with such knowledge.” The only evidence to which this instruction applies consisted of testimony to the effect “that, for a few years previous to the shipment of these shingles, he (Finn) had shipped six or eight other lots to Clark at Southampton or Westfield, marked as these were marked, with the initials ‘ J.' S. C.’ and his name and address, either at Westfield or Southampton, written with a lumberman’s pencil on some of the bunches of each lot.” It may be inferred that in such previous instances the freight was accompanied by proper way-bills disclosing its destination. The bill of exceptions states that Clark testified that, at the trials in the case of Finn v. Clark, “ he testified that with all the other shipments of shingles a bill of lading was sent, with his full name and residence.” If so, the fact that freight had been promptly and safely forwarded when properly directed did not tend to snow that the defendant was in fault for not forwarding freight without such directions. Neither would it properly estab [290] fish fault on the part of the defendant, that the agent, Green, did not remember the previous transactions, so as to know that these packages marked “ J. S. C.” and “ J. S. C. extra ” were intended for Clark, at Westfield or Southampton. From the instructions given, we apprehend that the jury may have been led to find that, if Green did not know that the goods were so intended to be sent, he “ ought to have clearly known ” it. It is contended by the plaintiff that the freight agent had the means of ascertaining the proper destination of these goods from the books of the corporation, which contained the record of the previous transactions, and therefore was guilty of neglect in not doing so. Assuming that the entries upon the books would have shown all the facts in relation to the previous transactions, we think it would be imposing too strict an obligation upon the carrier to require such an investigation of past transactions, to supply the want of proper directions upon freight, occasioned by the neglect or carelessness of the consignor. The suggestion of any connection between the previous transactions and these packages involves a recollection of the former. With no other guide to the means' of knowledge than the facts of this case indicate, we do not think that the agent, having charge of such an extensive business as that of the defendant at Green-bush, was bound to- undertake such an investigation. A consignor, who neglects to give proper directions for the transmission of his goods, has no right to expect that the carrier will take the responsibility of investigating the history of his business in order to ascertain his probable intentions in regard to the particular consignment. The carrier has the right to wait, and hold the goods on storage until he receives the proper directions, before he undertakes the severe obligations of that service. If the defendant’s agent did not know that .the goods were intended for Clark at Southampton, and did not see the full direction written in pencil upon some of the bunches of shingles, we think the evidence would not warrant the jury in finding that he “ ought to have clearly known ” it; and therefore that the instructions, which authorized the jury to find a verdict against the defendant on that ground were erroneously given. [291] If the plaintiff’s letter of June 6 had been received, the defendant would be guilty of neglect in not forwarding the goods within a reasonable time thereafter. But, as there are other grounds upon which the verdict may have been rendered, we cannot assume that the jury found that it was received, contrary to the positive testimony of Green. The defendant was not bound to act upon the letters from Clark, without the exhibition of his “ bill of lading or bill of purchase.” The carrier is entitled to have some authority or direction from the consignor himself, to justify his delivery to another. If none such accompanies the goods, he is not bound to take the risk of delivery to any one who does not produce evidence of his title or authority from the consignor. Without such evidence, in one form or the other, the defendant could not be required to undertake the transportation for the purpose of such delivery. . Exceptions sustained. Footnotes [*] Colt, J., did not sit in this case.