Winslow v. Vermont & Massachusetts Railroad

The opinion of the court was delivered by Steele, J. I. The defendants claim that this action should have been brought against them as warehousemen, and not as carriers. This objection need not be considered unless from the facts it appears that the responsibility of the defendants as carriers had ceased and the new relation of warehousemen had been ássumed before the time of the loss of the goods by the alleged mis-delivery. If the loss of the goods occurred while the defendants stood in respect to them under the responsibility of carriers, the action can clearly be sustained against them as carriers if it can be sustained at all.. It is true the transit of the goods had ended before the alleged misdelivery, but the defendants’ relation as carriers did not end at the same time. The responsibility of the carrier, as such, continues after the goods have reached their destination until the party entitled to them has had a reasonable time to call for, examine, and take them. Blumenthals v. Brainard, 38 Vt., 402. It appears that the mis-delivery and loss here complained of occurred before the expiration of such reasonable time. Collins was in Boston awaiting the arrival of the goods, and when they arrived sent for and took them. If, therefore, the defendants are liable in any action by reason of the delivery of the goods to Collins, they are liable in this action, which proceeds against them as carriers. II. It is urged that the defendants cannot even as carriers be held liable for delivering the goods to the wrong party, if they delivered them in the customary manner and in the usual course of business. We think no such exception to the common law rule can be made. The carrier is under the same contract, obligation or duty, to deliver the goods safely that.he is to carry them safely. The law fixes these duties upon the carrier and he cannot relieve himself from them by proving his usage. It is true, as urged, that it is not as customary for other carriers as it is for express carriers to obligate themselves to look up the owner and consign and deliver the goods to him at his residence or place of [706] business. But all classes of common carriers are responsible, and equally responsible, for a loss of the goods by a delivery of them to the wrong person. Stephenson v. Hart et al., 4 Bing., 476 ; (13 E. C. L., 596 ;) Duff v. Budd, 3 Brod. & Bing., 177 ; (7 E. C. L., 671;) Fletcher v. Am. Ex. Co., Am. Law Reg., November, 1866. III. In this case there was an error on the part of the plaintiffs in the direction of the goods. They were directed to J. E. Roberts, Roxbury, Mass. There was no such person as J. E. Roberts, and no person who was known or passed by that name. Collins, whom the plaintiffs well knew as Collins, had represented that there was such a person as J. E. Roberts in Roxbury, and had induced the plaintiffs to consign the goods to that address. Collins then went to Boston, and awaited the arrival of the goods, and claimed them under the name of J. F. Roberts, which name he assumed for the purpose of getting the goods. The swindle was successful. What should be the effect, upon the measure of the defendants’ responsibility, of the plaintiffs’ error in directing the goods to a fictitious address ? This might be an important question if the error had misled the defendants and occasioned them to deliver the goods to the wrong party after they had used that care and precaution which would be reasonable in such matters. But this error in the direction could not excuse the defendants from the duty of exercising at least ordinary care in the delivery of the property. They did exercise no such care. They were guilty of actual negligence. They delivered the goods to an employee of a truckman upon Ms mere statement that Roberts sent for them. Any other man in Boston could have obtained them just as easily. The swindler Collins was not known as Roberts, and if he had been required to identify himself as Roberts, might never have attempted it, and if he had, it would have been likely to lead to the detection of the fraud. If, therefore, the delivery of the goods to Collins through his agent was a mis-delivery, it was done under such circumstances of negligence as to make the defendants responsible under the most favorable rule as to care which they could ask. IV. But it is claimed that there was no mis-delivery; that the [707] goods were delivered to the very party to whom they were sent, the only J. F. Roberts there was, and that the defendants have therefore fulfilled their contract. To say that Collins was the only J. F. Roberts, is to assume that he was J. F. Roberts, when in fact there was no such man, and Collins was not known by that name. It is not true that the goods were consigned to Collins. They were not so marked. They were not so intended. They were for J. F. Roberts. It does not follow, because there was no such man as Roberts, that they were for Collins. If there was no such man, then the goods were for the consignors. It is true the swindler misled the plaintiffs into consigning the goods as they did, but the swindle did not convert Collins into Roberts, and the plaintiffs did not consign the goods to the swindler at all. In the case of Stephenson v. Hart, cited above, the plaintiff having been imposed upon by a swindler, consigned a box to J. West, 27 Great Winchester street, London. No such person resided there. The defendants, on learning that fact, held the box until they received a letter from the swindler or his confederate, signed “ J. West,” asking that the box should be sent to him at the “ Pea Hen,” a public house at St. Albans. The carriers sent the box as requested, and were held liable to the plaintiff for its value. In Duff v. Budd, ubi supra, the' plaintiff, on an order from a stranger, consigned goods to “ James Parker, High Street, Oxford.” There was no such man. But there was a W. Parker of High street. The defendants, who were common carriers, offered the goods to W. Parker. W. Parker said he expected no parcel. A person to whom the defendants had before delivered goods under the name of Parker called and claimed the parcel. It was delivered to him, and thus lost to the plaintiff. The value of the parcel was ¿689, and the defendants had given notice that they would be responsible for no more than ¿65 value, unless the value was marked on the package, whiclvwas not done in this case. The jury having given the plaintiffs a verdict against the carriers for the full value, it was held there was no error, Burroughs, J., remarking: •“ Carriers are constantly endeavoring to narrow their responsibility and creep out of their duties, and I am not singular in thinking that their endeavors ought not to be fa [708] vored. The question, here is whether there was gross negligence. I think there was, and I am of opinion that the case was properly left to the jury and that they have given a proper verdict.” The judgment of the county court is affirmed.