Stowe v. United States Express Co.

Ostrander, J. (after stating the facts). We should feel justified, after examining the brief for appellant, in affirming the judgment without examination of the record. We have concluded, however, to treat the findings of fact' as presumably supported by testimony, and to consider the single exception that the facts found do not support the conclusions of law and judgment. We have no doubt that the plaintiff may maintain the action. Defendant did not make a proper delivery of the peaches. It made no delivery. Adrian Knitting Co. v. Railway Co., 145 Mich. 323 (108 N. W. 706); 4 Elliott on Railroads, §§ 1524, 1523; Bullard v. Express Co., 107 Mich. 695 (65 N. W. 551, 33 L. R. A. 66, 61 Am. St. Rep. 358). The question of most importance is whether, having still reasonable time to make delivery when plain-' tiff left the city, the fact that he did leave, and that during the interval before he returned the fruit perished, may be offered as an excuse which will relieve defendant from liability. as a common carrier. A single case, Hutchinson v. Express Co., 63 W. Va. 128 (59 S. E. 949, 14 L. R. A. [N. S.] 393), in which a .similar excuse was held to be available to the carrier, has been brought to our attention. In that case the carrier failed to send to the consignee written notice, by mail, of the receipt of goods. It appearing that the consignee would not have received the notice if one had been sent, and that the omission of duty resulted in no injury to him, a recovery was refused. Applying such a rule here, it may be said that plaintiff was not injured by the failure of defendant to deliver the peaches. It cannot be said that upon appearances defendant was not warranted in the attempt to [354] deliver the peaches at the private house. If the agent of defendant had learned at the house that plaintiff did not live there, and had then made inquiry at his office or apartments, he would have learned that he was out of the city. Delivery to plaintiff could not then have been made. Delivery to any one else would (have been at the peril of the defendant; there being no evidence of any custom or of any business or other arrangement of plaintiff’s which would have protected defendant in making a delivery to any other person. If it had then sent a notice to plaintiff, he would have received it probably on September 11th, which was the day he learned that the fruit had been sent to him, and had arrived. The effect of the decision in Hutchinson v. Express Co., supra, is to relax the rule of the carrier’s liability, a rule of public policy and convenience, “introduced to prevent ,the necessity of going into circumstances impossible to be unraveled.” 2 Kent’s Commentaries, p. 602. Plaintiff is relying here upon a strict enforcement of the rule, having in reality suffered no injury on account of its violation. The rule is rigorous; but it must be considered that a carrier may always, with certainty, even if with some inconvenience, discharge itself of its responsibility as carrier. We are of opinion that the rule should not be relaxed. The release referred to was conditional. The claim was presented to defendant, and not allowed. It is no bar to the action. It follows that the facts do not support the judgment, and that a judgment should have been entered for plaintiff for $1, and costs of suit. The record is remanded to the circuit court, with direction to enter a judgment for the plaintiff. Plain- . tiff will recover costs of both courts. McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.