White v. Postal Telegraph & Cable Co.

Mr. Justice Duell delivered the opinion of the Court: In passing, it may be said that in all the larger cities there-are now companies engaged in this line of service, and undoubtedly they are in a certain sense and to a certain extent common carriers. They must serve all who require their services impartially, and undoubtedly they are liable upon proof of neg [368] .ligence, and under some circumstances, and always by special •contract, they may make themselves insurers. It is strenuously contended by counsel for appellee that the action is wrong in form; that the action is ex contractu; that it ¡should have been an action ex delicto. He cites Sanford v. American Dist. Teleg. Co. 13 Misc. 88, 34 N. Y. Supp. 114, and Hirsch v. American Dist. Teleg. Co., which we find re■ported in 90 N. T. Supp. 461. They bear out his contention, ■and the former case discusses the two forms of action at considerable length, and concludes that recovery could not be had in an action based on contract, but could, on proper proofs, be had in an action ea; delicto. Leave was given to go to the court of .appeals, but no appeal appears to have been taken. In the absence of a decision of a court of last resort, and still more because, in the absence of written pleadings and in view of the ■different and conflicting statements of counsel as to the grounds upon which the court directed a verdict, we do not deem it advisable to pass upon the question, but prefer to decide the appeal on other grounds. Conceding that appellee is a common ■carrier, we think it by no means follows that there was sufficient evidence to warrant or require the case to be submitted to the jury. The weight of authority is in favor of the proposition that there is no presumption that a carrier of the •class to which the appellee belongs assumes to act as a ■common carrier in the transportation of money, and that the as■sumption of that status must be affirmatively proved by the party alleging it. 6 Am. & Eng. Enc. Law, p. 258. In the case -at bar it appears that it is not the custom of the appellee to accept money for transportation. The company was not informed ■of the nature of the service required, and beyond this it appears that the service required was not one involving the delivery of currency. On the contrary, the letter intrusted to the messenger called for something else. It said, “Kindly send check by bearer.” Neither the appellee nor Douglass & Douglass authorized Gasch Brothers to send bank notes, or any other form •of money, by the messenger. We think it was negligence on their part to send money instead of a check, and, doubly so, [369] without notifying the boy that the envelope contained money. The messenger was the agent of the appellee, and his custody was the company’s custody, and his default the company’s. The converse is equally true. Absence of notice to him was lack of notice to the company. While the messenger doubtless had authority to accept whatever was intrusted to him, he was without express authority to contract for the carriage of money, and, doubly so, with a third party. To what extent Gasch Brothers made the messenger their agent to deliver the money to Douglass & Douglass, and thereby relieved the appellee of any claimed liability, is an interesting question, but one not necessary to be here decided. While there is more or less conflict as to the extent of liability of carriers of the class in question, we find a general line of cases which hold that, under the circumstances disclosed by this record, common carriers would not be liable. In Sewall v. Allen, 6 Wend. 335, it was held that a steamboat company which, by its act of incorporation, was made liable as a common carrier, was not a common carrier of bank bills unless it were shown that it had made the carriage of such packages a part of its ordinary business. In Chicago & A. R. Co. v. Thompson, 19 Ill. 578, it was held that the authority of an agent to receive packages and the like does not imply power to receive bank bills. To make a common carrier liable notice should be given that the package contains money. In Hayes v. Wells, F. & Co. 23 Cal. 185, common carriers of letters inclosed in envelopes were held not liable for articles of special value contained in them unless informed at the time of the receipt of the letter of the value of its contents. This seems to us a salutary rule as applied to these so-called, messenger companies. They employ lads, and when valuables are to be transported it is but fair that the employer should be informed of the nature of the service required, so that it may select one of tried integrity. It was because the nature of the service required was made known to the company that it was held liable in American Dist. Teleg. Co. v. Walker, 72 Md. [370] 454, 20 Am. St. Rep. 479, 20 Atl. 1, cited by appellant. The boy also in fairness should be notified, so that he may exercise necessary care. There is little force in appellant’s contention that by accepting 20 cents the appellee ratified the messenger’s act in undertaking to safely transmit the money in question. The record discloses that the charge was entered on Douglass & Douglass’s bill among other items, and presumably upon the date of the transaction, which was long before the loss was communicated to the company, and it would be a very harsh ruling that would predicate ratification on the fact that the bill was sent out without the cancelation of the item. In the light of what the record discloses we are not prepared to say that the trial judge erred in directing a verdict for the defendant. He was justified in construing the evidence in the most favorable light for the defendant, and we see no good reason for disturbing his ruling, and much to warrant it. The judgment appealed from should be affirmed, with costs, and.it is so ordered. Affirmed.