O'Bannon v. Southern Express Co.

BRICKELL, J. The liability of a common carrier begins when goods are delivered to him, or to his proper servant or agent authorized to receive them, for transportation. Many questions have arisen, as to what will constitute a constructive delivery, fixing the liability of a carrier. In all cases, notice to the carrier, express or implied, of the intention to commit the goods to his care and custody, for transportation, has been deemed essential to impose upon him duty and liability. Packard v. Getman, 6 Cowen, 757. The appellee is subjected to the duties and liabilities of a common carrier. The bond executed by the appellants, as to the breaches alleged in the pleadings, was intended to indemnify the appellee, against loss or damage by the negligence or delinquency of the agent, O’Bannon, so far as in the performance of his agency the duties and responsibilities of the appellee were involved. There could not have been a delivery of goods to O’Bannon, which would have imposed duty and responsibility on the appellee, unless knowledge of the intention to deliver could be traced to him or his assistants. So, his liability for goods or packages in the custody of other agents of the appellee, intended for delivery to him, would not begin, until there was an actual delivery, or a constructive delivery with notice to him of an intention to place the goods in his care and custody. Goods or packages may have been placed in a position in which he could have easily received them ; and yet, if he did not know it was intended he should receive them, diligence, or responsibility, could not be demanded of him. Duty and responsibility should not be imposed, without the knowledge of the party from whom they are to be exacted. The charge of the court, in its last sentence, authorized a verdict against the appellants, if the package was so placed that O’Bannon, or his agent, could easily have received it, although he was not informed, and had no knowledge of the purpose to deliver it into his care. In this sentence lies the error of the charge given. The judgment is reversed, and the cause remanded.