Chicago & Northwestern Railroad v. Sawyer

Mr. Justice McAllister delivered the opinion of the Court: This suit was brought by appellee against appellant to recover for 174 chests of tea, shipped by the former, in bond, from San Francisco, being part of an invoice of 354 chests, and received while in transit bv appellant at Omaha, to be transported for hire on its cars from thence to Chicago, and there, under the provisions of the act of Congress and regulations of the revenue department in that behalf, delivered into a bonded warehouse. The entire invoice arrived in Chicago, but in separate lots, on the 4th day of October, 1871. As to one lot, of 180 chests, appellant’s agents gave notice to the consignee, whose place of business was denoted by the way-bill, and, by his direction's to the collector, that lot was delivered at the Burlington bonded warehouse, with which appellant’s track connects, and was saved. There was where the consignee intended to have the whole invoice delivered, but appellant’s agents failed to give' him any notice of the arrival of the 174 chests in question, and failed likewise to give any written notice of their arrival at the collector’s office; but, relying upon mere personal knowledge of their arrival by an inspector of the collector’s department, these goods were permitted to remain in appellant’s cars from the 4th until the 8th and 9th of October, when they were burned in the cars. It is an established fact in the case, that, by the regulations of the collector’s office, all notices of the arrival of goods shipped in bond to that port were required to be in writing, and, inasmuch as it was a policy of the office to aid commerce, and there were several bonded warehouses in Chicago, the course of business was, to leave it to the consignee to designate which warehouse he would have the goods deposited in. From this policy sprang a custom of the carrier of goods in bond to notify the consignee of their arrival; and this, the evidence tends to show, was well known to the agents of appellant. But the carrier could secure a delivery by giving a written notice directly to the collector or his deputy. The deputy collector explained, in his evidence, the reason of requiring all notices to be given to the proper officers, and in writing. It was because they were required to keep a record of all their transactions. The carrier received these goods, to be transported for hire, knowing, at the time, that they were goods subject to duty to the government, and being shipped from one collection district to another, and that, by the law of Congress and the regulations of the revenue department, they could be delivered only into a bonded warehouse, to be reached in compliance only with certain specific regulations. When the carrier received the goods with this knowledge, it impliedly undertook that the goods should be safely delivered at the place of their destination, in the special manner required, and within a reasonable time. The liabilities of common carriers a.re for all losses, even inevitable accidents, except they arise from the act of God or-the public enemy. And by the act of God is meant something superhuman, or something in opposition to the act of man. In all cases, except of that description, the carriers warrant the safe delivery of the goods. Hale v. The New Jersey Steam Navigation Co. 15 Conn. 539; 2 Redf. Am. R’wy Cases, 3. In Elliott v. Rossell, 10 Johns. R. 1, Kent, Ch. J., said : “It has Ions: been settled that a common carrier warrants the safe delivery of goods in all but the excepted cases of the act of God and public enemies ; and there is no distinction between a carrier by land and a carrier by water.” And, in his Commentaries, the same learned jurist says: When the responsibility has begun, it continues until there has been a due delivery by him, or he has discharged himself of the custody of the goods in his character of common carrier.: There has been, he says, some doubt in the books as to what facts amounted to a delivery, so as to discharge a common-carrier. If it be the business of the carrier to deliver goods at the house to which they are directed, he is bound to do so,' and give notice to the consignee. The. actual-delivery to the person is generally conceded to be the duty of the carrier; 2 Kent’s Com. 604. This doctrine is fully recognized by this court in Baldwin v. Am. Ex. Co. 23 Ill. 197. .In Chicago and Nock I. N. R. Co. v. Warren et al. 16 IIL 505, this court held that the responsibility of the carrier does not end until that of the owner, consignee or warehouseman begins j that there must be an actual or legal constructive delivery to the owner or consignee, or to a warehouseman, for storage, in- order to discharge the carrier from liability as such. In Porter v. The Same, 20 Ill. 407, this court, adopting the views of the Supreme Court of Massachusetts, delivered by Chief Justice Shaw, in Norway Plains Co. v. The Boston and Maine R. R. Co. 1 Gray, 263, held, as to the ordinary business of railroads as common carriers, that they are responsible as common carriers until the goods are removed from the cars and placed upon the platform; and if, on account of their arrival in the night, or at any other time when, by the usage or course of business, the doors of the merchandise depot or warehouse are closed, or if, from any reason, the consignee is not there to receive them, it is the duty of the companv to store them safely, under the charge of competent and careful-servants, ready to be delivered, and actually deliver them when called for by the parties entitled to receive them. And-for the performance of these duties, after the goods are delivered from the cars, the com pan}7 is liable as warehouseman or keepers of goods for hire ; that notice to the consignee was not necessary to exonerate the railroad from its liability as common carrier. In adopting these views, the learned judge who prepared the opinion of the court cites the ease of Moses v. The Boston and Maine R. R. Co. 32 N. H. Rep. 523, as supporting the same doctrine. This was a clear misapprehension, for the court., in the last mentioned case, at the close of a very able opinion presenting the opposite view, refer to the case in Gray, and say: “The ground upon which the decision is based, would seem to be the propriety of establishing a rule of duty for this class of carriers, of a plain, precise and practical character, and of easy application, rather than of adhering to the rigorous principles of the common law. That the rule adopted in that case is of such a character, is not to be doubted; but, with all our respect for the eminent judge by whom the opinion was delivered, and for the learned court whose judgment he pronounced, we can not but think that by it the salutary and approved principles of the common law are sacrificed to considerations of convenience and expediencv, in the simplicity and precise and practical character of the rule which it establishes.” The rule was expressly repudiated by the Supreme Court of Vermont, in Blumenthal v. Brainard, 38 Vermt. R. 402, and by Chief Justice Redfield in his work on the Law of Railways, sec. 130, pl. 6, note 9 and pl. 9. It was, however, re-affirmed by this court in Chicago and Alton R. R. Co. v. Scott, 42 Ill. 132, but not without some suggestions against it by Justice Breese, who delivered the opinion of the court. Since that, it has been fully recognized, and has become the settled law of the court. Merchants’ Despatch Co. v. Hallock, 64 Ill. 284. But in Porter’s ease, above cited, while the court held that removing the goods from the car on their arrival at the place of destination, and, if not called for, they are placed in a suitable warehouse, amounted to a delivery, which terminated the liability of the carrier as such, the court held that conveying the goods to the terminus of the road, or at their destination upon the route of the road, without a delivery of them from the cars, couid not amount to such a delivery. The court said: “The goods are still as completely under the control of the carrier as before, and the owner or consignee would be as effectually precluded from exercising any control over them. He could do no act for their security or protection while locked up in the car, and none but the carrier and his agents and servants could even know they had arrived. We are strongly inclined to the belief that no decision can be found that such an act releases them from their liability of carriers, and that it should not without something further on their part.” When we go back to the Norway Plains Company case, 1st of Gray, it is seen that Chief Justice Shaw formulated the rule in this wise: “The court are of opinion that the duty assumed by the railroad corporation is—and this, being known to owners of goods forwarded, must, in the absence of proof to the contrary, be presumed to be assented to by them, so as to constitute the implied contract between them—that they will carry the goods safely to the place of destination, and there discharge them on the platform, and then and there deliver them to the consignee or party entitled to receive them, if he is there ready to take them forthwith, or if the consignee is not there ready to take them, then to place them securely and keep them safely a reasonable time, ready to be delivered when called for.” It is very apparent that no such implied contract could arise under the circumstances of the case in hand, nor is one implied that actual delivery would be made to the consignee in person, because these goods were received with the knowledge that they were- being shipped in bond, under the provisions of an act of Congress and the regulations of the treasury department in that behalf, and that, therefore, they could not be delivered upon the platform of the railroad, or otherwise, to either the consignee or owner or any general warehouseman; but were required to be delivered into a bonded warehouse; under the superintendence of the collector or some authorized officer in his department. Such a delivery was necessarily subject to-the regulations of the law and the revenue department of government. The contract on the part of the carrier implied by these circumstances was, therefore, to safely carry the goods to the place of their destination, and there safely deliver them into a bonded warehouse or into the custody of the collector of the district there, in compliance with the regulations and course of business of the collector’s office in that behalf. This the appellant did not do. There was no delivery of these goods out of the custody of the carrier, under any rule known to the law. Failing to give notice to the consignee, appellant’s duty required it to give the written notice at the collector’s office required by its regulations and course of business. Failing in this also, and retaining the goods in the cars until they were destroyed by the fire, which was not a loss arising from the act of God or the public enemy, appellant was liable as common carrier. The judgment of the court below must be affirmed. Judgment affirmed.