J. Mosher & Co. v. Southern Express Co.

Warner, C. J.

This was an action brought by the plaintiffs against the defendant as a common carrier, for the loss of góods received by him for ti’ansportation from Augusta to Cartersville. On the trial of the case in the Court below, the jury found a verdict for the plaintiffs. The Court granted a new trial, which is now assigned for error here. The receipt given by the *40 agent of the Company ón the 4th of September, 1865, is in the following words: “Received of J. Mosher & Co., two bales yarns, valued at three hundred dollars, and for which amount charges are made by said company, marked C. A. Robinson, Cartersville, Ga.” There is also printed on the face of the receipt amongst other things, the following words, “whieh it is mutually agreed is to be forwarded to our agency nearest or most convenient to destination only, and there delivered to other parties, to complete the transportation.” It is insisted for the defendant that his line of transportation extended only to the city of Atlanta, and that inasmuch as the goods were lost beyond the terminus of his line, that he /was not legally liable for the loss of the goods, and that such was his spéeial contract as expressed in the receipt given for the goods. Two questions arise here r First, was the defendant liable under the law as a common carrier, to transport the goods ' received by him to Cartersville, the place of destination ? Second, if he was so liable as a common carrier, could- he limit his legal liability by the statement made on the face of the receipt given for the goods ? As to the legal liability of the defendant as a common carrier, for the loss of goods received by him to be transported beyond the terminus of his own line, the American authorities are conflicting. But the rule is well settled in England, that he is liable, and this rule as to his liability, in the language of Baron Rolfe, in Mus-champ vs. Lancaster Railway Company (4th Meeson & Weisby’? Rep. 424,) is not only consistent with law, but is the only one consistent with common sense, and the convenience of mankind.” In the case above cited, a parcel was delivered at Lancaster, to the Lancaster and Preston Junction Railway Company, directed to a person at a place in Derbyshire. The person who brought it to the station, offered to pay the carriage, but the book-keeper said it bad better be paid by the person to whom it was directed, on the receipt of it. The Lancaster and Preston Junction Railway Company were Jtnovm to be proprietors of the line, only so far as Preston, where the railway unites with the Forth Union line, and that afterwards with another, and so on into Derbyshire. The *41 parcel having been lost after it was forwarded from Preston, it was held that the Lancaster and Preston Eailway Company were liable for its loss. See Angel on the law of carriers, 100, section 95. Weed vs. Schenectady and Saratoga Bail-road, 19th Wendell’s Bep., 539. In the case now before us, the shipper of the goods did not hnoio that the defendant’s line of transportation did not extend beyond Atlanta, and nothing was said at the time the goods were received, about the defendant’s line stopping short of Cartersville, the place to which the goods were received by the defendant to be forwarded. The freight, too, was to he paid at Carters-ville. In our judgment, the only safe legal rule to be erA forced in such cases, is the one-recognized and enforced in the! case of Muschamp vs. the Lancaster Eailway Company, that) when a common-carrier receives goods to be transported! to a certain point of destination expressed upon the face of! his receipt therefor, that he undertakes to deliver the goods' so received, either by his own line of transportation, or that he will do so by his own competent agents for that purpose, and that it is not a good legal ground of defence, in ease of the loss of the goods, for the carrier to shew that his line of transportation stopped short of the place to which he undertook to carry the goods, and thereby, protect himself from liability, the more especially, when the fact, as to the extent of his line of transportation, was not known to- the shipper of the goods, nor communicated to- him by the defendant at the time of receiving the goods. The responsibility of the carrier of goods ceases with their delivery at destination according to the direction of the person sending, or according to the custom of the trade. Eevised- Code, 2044. By the 2054th section of the Eevised Code, railroad companies, in this State, are not liable, as common-carriers, for- the loss of goods beyond the terminus of their respective roads, provided the goods are delivered to the connecting road in good order; bat this provision of the Code, does not embrace express companies, who receive, and undertake to deliver small parcels of goods as common-carriers, for the benefit of the public, for certain rates of compensation charged therefor.

*42 Having shown that the defendant was liable, under the law, to deliver the plaintiffs’ goods at Cartersville, the place of destination, as expressed in the receipt given for the goods, could the defendant limit that legal liability, by the entry made on his receipt, in the following words: “ which it is mutually agreed, is to be forwarded to our agency nearest or most convenient to destination only, and there delivered to other parties, to complete the transportation ” ? By the 2042d section of the Revised Code, it is declared that, “ a common carrier cannot limit his legal liability, by any notice given, either by publication, or by entry on receipts given, or tickets sold. He may make an express contract, and will then be governed thereby.” This section of the Code was considered, and construed by this Court, at the last term, in two cases. Newby vs. Southern Express Company, 36 Ga. R., 635; and Purcell vs. the same, 37 Ga. R., 103. This provision of the Code is, in our judgment, a wise and salutary provision, intended to protect the public from imposition and surprise, in the hurried transaction of business with these express companies, in the forwarding- of small parcels, as well as 'valuable packages by all sorts of people, some of whom might not be able to read the printed stipulations annexed to the receipt given for the goods, and if they could read them, would not be able to comprehend the legal effect thereof. In the receipt now before the Court, it is stated, that it is “ mutually agreed,” etc., when the evidence in the record shews that the ship>per of the goods did not know that the defendant’s line of transportation stopped at Atlanta, and that fact was not communicated to him by the defendant, at the time of the reception of the goods, and yet, this Court is asked to decide that there was a mutual agreement between the defendant and the shipper, at the time of the reception of the goods to be forwarded to Cartersville, that the defendant was not to be liable for the loss of the goods beyond Atlanta. This case affords a practical illustration of the wisdom of that provision of the law which declares that the defendant, - as a common-carrier, shall not limit his legal liability by entry on his receipts given for the goods. If he desires to limit his *43 legal liability, as a common-carrier, let him make an express contract outside of, and independent of, his receipt given for the goods, and then there will be some mutuality in the agreement between the parties; at least, both parties will have a ■much better opportunity of understanding what is the mutual agreement between the shipper and the carrier.

Another ground of defence insisted .on by the defendant is, that the goods were taken out of his possession by legal process. If it be conceded that this would be a good defence for the common-carrier, under the law defining his legal liability, still, it-must fail in this case, according to the evidence contained in the record. It is not shewn what was the nature, or character of the legal process under which the goods are alleged to have been received, nor does it appear at whose instance, or against whom the legal process was sued out, by virtue of which, it is contended, the goods were seized. Whether the seizure of the goods was lawful or unlawful, whether the process was legal or illegal, whether it issued against the consignor or consignee of the goods, or against some third party, the record does not inform us. The burden of proof was upon the defendant to shew that it was, at least, a legal process, and that it issued against the proper parties, so as to make it available for his defence. The original legal process, or a duly certified copy thereof, would have furnished the best evidence of its nature and character, as well as who were the parties to it, in order that the Court might judge of the same. The bare statement that the goods were seized by legal process, and that fact communicated to the plaintiffs, without more, was not sufficient, in our judgment, to release the defendant from his legal liability as a common-carrier. In any view of which we have been able to take of the facts of this case, as presented by the record, it is the judgment of the majority of this Court, that the judgment of the Court below, granting a new trial, should be reversed.

Judgment reversed.

Walker, J., concurred, but wrote out no opinion.