Stapleton v. Grand Trunk Railway Co.

Moore, J. This is an action to recover for the value of goods destroyed in a fire which burned the freighthouse of the defendant at Mt. Clemens, on Monday, the 30th day of April, 1900, at 3 o’clock in the afternoon. The plaintiff is the surviving partner of George Norris & Co., of Detroit, manufacturers and dealers in bottled drinks. This concern had been doing business in Mt. Clemens for — 188 — some 20 years, and in the course of business, on the 27th day of April, 1900, had shipped a quantity of goods to their agent, Patrick Bogue, at Mt. Clemens. A part of these goods reached there on Friday, April 27th,- and a part on Saturday, April 28th. Immediately thereafter the plaintiff’s agent receipted for the goods, and took some of them away. The rest he put into what was called the “jail,” where he had previously put goods by the permission of his son, who was in the employ of the defendant company. He took one load away Friday, a load on Saturday, and two more on Monday. A fire occurred at 3 o’clock Monday afternoon, and goods to the value of $144.92, as testified by plaintiff, were destroyed. There were also destroyed in this fire a number of empty bottles and cases belonging to the plaintiff, which the plaintiff claimed were of the value of $379.35. The jury rendered a verdict in favor of the plaintiff for both lots of goods. The case is brought here by writ of error. There is no claim the fire was due to the negligence of the defendant. In relation to the goods shipped from Detroit, the trial judge charged the jury, in part, as follows: “The consignee (that is, the receiver) has a reasonable time after the arrival of goods at their destination to remove the same. Pending their removal within such reasonable time, the liability of the railroad company is that of a common carrier, and not of a warehouseman. This reasonable time is to be judged by all the circumstances connected with the transaction, — former dealings between the parties, and the ability of the consignee to remove these goods; and, if the jury find'that the consignee used all reasonable diligence in removing the goods, the defendant is liable in this case, as a common carrier, for the value of the goods sent out, and your verdict should be for the plaintiff. That depends upon the testimony,— which side jmu believe.” We think this an incorrect statement of the law. In Hutch. Carr. (2d Ed.) p. 440 (§ 374), it is said: “In New York the law upon this subject is stated to be that, if the consignee is present upon the arrival of the — 189 — goods, he must take them without unreasonable delay; if he is not present, but lives at or in the immediate vicinity of the place of delivery, the carrier must notify him of the arrival of the goods, and then he must have a reasonable time to remove them; if he is absent, unknown, or cannot be found, the carrier may store them; and if, after notice of the arrival of the goods, the consignee has. had a reasonable opportunity to remove them, and does not, he cannot hold the carrier longer as an insurer. This view of the subject has also been taken by the courts of Minnesota and Michigan.” See cases cited in note. In the same authority, at page 445 (§§ 376, 377), it is said: “What length of time will be considered reasonable for the removal of the goods, at the expiration of which the carrier will be regarded as holding them as warehouseman, when such reasonable time is allowed the consignee, it is said, cannot be determined by any fixed or definite rule, but must depend in a great measure upon the circumstances' of each case. When the facts are agreed upon or undisputed, it becomes a question to be determined by the court as one of law, but, where they are disputed and unsettled, the question must be submitted to a jury. “It is said, however, that no indulgence will be given to the consignee by reason of the circumstances of his condition or situation, which may make delay in the removal of the goods unavoidable on his part; nor will the distance at which he may reside or have his place of business from the place of their deposit be taken into consideration, but he will be required to remove them with the same expedition as though he lived in the vicinity of the warehouse. In other words, the time within which the consignee is required to remove the goods will not be made to vary with his distance, convenience, or necessities, but only such time will be allowed as would enable him, if living in the vicinity of the place of delivery, to remove them in the oi’dinary course and in the usual hours of business. He must, moreover, proceed to remove the goods with diligence after he is informed of their arrival, and must provide himself with ample means for doing so. In Hedges v. Railroad Co., 49 N. Y. 223, goods arrived for the plaintiffs early in the morning. They received notice of — 190 — the fact an hour or two later on the same day, and gave directions to their carman to go for and bring them from the depot. The carman brought away one load, but during the balance of the day carted for the plaintiffs to other places or remained idle. No other directions were given, and no further effort was made to remove the goods. During the following night the goods were burned without the fault of the defendant. It was held that the loss must be borne by the plaintiffs, the defendant’s relation to the goods having become changed before they were burned by the delay of the plaintiffs in removing them. “ ‘The plaintiffs seek to hold the defendant,’ say the court, ‘to a strict liability as insurer of the goods. Asking that so rigid a rule be applied to the defendant, it is just that the plaintiffs in turn be held to prompt and diligent action. A consignee cannot, after he, has notice of the arrival for him of property, defer taking it away while he attends to his other affairs. He may not thus prolong the time during which the carrier shall remain liable as an insurer. That would be to make the carrier a mere convenience for the consignee, without consideration of any kind to the carrier, and yet resting under a great risk. So much time as the consignee, after notice, gives to his other business, to the neglect of taking charge of his property and removing it from the custody of the carrier, cannot be allowed to him in estimating what is a reasonable time for him in which, after notice of arrival, to take delivery of his goods. He is not to be compelled to leave all other business to take his goods from the hands of the carrier; he may attend first to whatsoever demand of his business he deems the most urgent or the most profitable; but he cannot do this at the hazard and expense of the carrier. It is the duty of the carrier to give notice of arrival. It is the duty of the consignee, at once and with diligence, to act upon this notice, and to seek delivery, and to continue until delivery is complete. Either may neglect this, his duty, but then the consequence of the neglect must be borne by him.’ ” This was not a large consignment of goods. Part of them arrived on Friday, and part on Saturday. The agent of plaintiff seems to have preferred to leave the goods where he did until it suited his convenience to remove them, instead of acting promptly. He had receipted for them, and himself placed them under lock and key. He had an abundance of time to remove them, but did not do so. Under the proofs, the circuit judge should have directed a verdict, as to these goods, in favor of — 191 — defendant. See Hasse v. Express Co., 94 Mich. 133 (53 N. W. 918, 34 Am. St. Rep. 328); Moses v. Railroad, 32 N. H., at page 541 (64 Am. Dec. 381). The other branch of the case is more difficult. Mr. Bogue was in the habit of gathering up empty bottles from plaintiff’s customers, and sending them back to Detroit in shipping cases. The bottles and cases in controversy had been deposited by him on one of the outside platforms of the freighthouse, preparatory to their shipment to Detroit. It was the claim of plaintiff that these goods were ready for shipment, and that the agent of defendant had been notified to ship them as soon as the company was ready. It was the claim of defendant that plaintiff was in the habit of bringing the bottles and cases to the platform and sorting them there, sometimes leaving them there for days, until he got tñem ready for shipment, and that when they were ready he notified the agent, and a bill of lading was made out for them; but that, upon this occasion, defendant had no notice the goods were ready for shipment, and that they were not in its possession as a common carrier. This raised a question of fact for the jury, under proper instructions. In Hutch. Carr. (2d Ed.) § 94, it is said: “The entire responsibility for the safety of the goods being shifted from the owner to the common carrier as soon as the delivery is made, it frequently becomes a question of the greatest importance and of great nicety to determine at what instant of time such delivery becomes complete; for, as we have seen, until the entire and exclusive custody of them has been given to the carrier, no responsibility rests upon him in that character. The most that'can be said generally upon this subject is that, a tender of the goods being made to the carrier, his liability for their safety as carrier arises eo inslanti with his acceptance of them. * * * To effect a delivery to the carrier, there must be, either actually or in legal effect, a complete surrender to him of possession and custody, and, as a consequence, all control over the goods must be abandoned by the owner until the purpose of the bailment has been accomplished; and, until this has been done, it cannot be — 192 — said that the carrier has assumed any responsibility for them as carrier.” See, also, Id. § 96; Meloche v. Railway Co., 116 Mich. 69 (74 N. W. 301). If in this case Mr. Bogue had done all he intended to do to the goods before the goods were shipped, and had notified the agent of the defendant they were ready for immediate shipment, and the agent agreed to forward them, that would be sufficient to make the company liable as a common carrier. 5 Am. & Eng. Enc. Law (2d Ed.), 180. If this had not been done, it would not have been so liable. Judgment is reversed, and a new trial ordered. The other Justices concurred.