Christenson v. American Express Co.

Berry, J".

By the Gowrt. The defendants are an express company engaged generally, and publicly, in the business of transmitting for hire, goods from place to place, and among others, from New York to Mankato. At different points to which their business extends, they establish local offices, at which an agent is stationed, whose duty it is to receive goods transmitted, and deliver the same to the consignee, as well as to receive goods for transmission. The defendants own no vehicles or other means of transportation, except such as are kept at their local offices, and used solely for the purpose of carrying goods to and from such offices to and from their customers, at the places where the offices are established. The practice of the company is to transmit goods by steamboats, railroads, coaches, &c., owned and controlled by other parties; and it receives to its own use the entire charges for transportation. A messenger in the company’s employ accompanies the goods as they are *279 being transmitted, to take general charge of the same, attend to their transhipment, and to their delivery to the local agent at the point of destination. A common carrier is defined to be “ one who undertakes for hire, to transport the goods of such as choose'to employ him, from place to place.” Dwight vs. Brewster, 1 Pick., 50, 53; 2 Parsons on Contracts, 163; 1 Smith L. Cases, 301.

In Buckland vs. Adams’ Express Co., 97 Mass., 124 , it is held, that one whose business is for hire to take goods from the custody of their owner, assume entire possession and control of them, transport them from place to place, and deliver them at a point of destination to consignees or agents, there authorized to receive them, is a common carrier, although he styles himself an express forwarder, and although he contracts with others to transport the goods in vehicles of which they are the owners, and the movements of which he himself does not manage or control. These'definitions are in our opinion correct, and the defendants, falling within them, must be regarded as common carriers. See- also Sweet vs. Barney, 23 N. Y., 335 ; Russell vs. Livingston, 19 Barbour, 346; 2 Redfield on Railways, 19, 30.

This action is brought to recover one hundred and fifty dollars, for two chests of tea belonging to the plaintiffs, the receipt of which by the defendants for transmission from New York to Mankato, and the total loss of which by the sinking of a steamboat, not owned or controlled by the defendants, but upon which the same were being transmitted, are admitted. It is also admitted that the boat sank in consequence of running upon a snag in the Minnesota river, but whether this was, or was not owing to negligence on the part of those managing the boat, is matter of dispute, as to which the testimony is conflicting. Suffice it to say, however, that there is evidence in the case reasonably tend *280 ing to sustain the finding of the referee, that the persons operating the boat were guilty of negligence in running upon the snag, so that there is no occasion to disturb the finding, on the ground that it is unsupported by the evidence in this respect. It is found by the referee that Bass & Clark, respondents’ consignors, delivered the tea to the defendants at New York, consigned to plaintiffs at Mankato, and at the time of such delivery took from defendants the following receipt:

“ American Express Company, express forwarders and foreign and domestic agents. Principal office Nos. 57, 59 and 61 Hudson street. Branch offices, 124 Broadway and 542 Broadway.

New York, April 29, 1867.

Bass and Clark delivered to us two chests tea marked Christenson & Bro., Mankato, Minn., which we are to forward to our agency nearest or most convenient to <destination, only perils of navigation and transportation excepted, and it is hereby expressly agreed, and is part of the consideration of this contract, that the American Express Company are not to be held liable for any loss or damage, except as forwarders only, nor for any loss or damage of any box, package or thing, for over one hundred and fifty dollars, unless the just and true value thereof is herein stated, nor for any loss or damage by fire, the acts of G-od, or of the enemies of the government, the restraint of government, mobs, riots, insurrections, pirates, or from any of the dangers incident to a time of war, nor upon any property or thing, unless properly packed and secured for transportation, nor upon any fragile article consisting of, or contained in glass.

Eor the Company, Spence.”

At common law, a common carrier is an insurer of the *281 goods intrusted to him, and he is responsible for all losses of the same, save such as are occasioned by the act of God, or the public enemy. Angell on Carriers §§ 67, 148, 153., New Jersey Steam Nav. Co. vs. Merchants' Bank, 6 Howard, 381 .

After much controversy, it may now be taken as settled by the great preponderance of authority, that it is competent for a common carrier to modify, or limit his common law liability by special agreement with the owner of the goods. York Co. vs. Central R. R., 3 Wallace, 112. Judson vs. W. R. R. Co., 6 Allen, 489 . Dorr vs. N. J. Steam Nav. Co., 11 N. Y., 491 . 2 Redfield on Railways, 93. 2 Parson's Contracts, 233-237, notes and cases cited.

"While there is some conflict of opinion among courts and text writers as to the extent to which the carrier may be permitted to modify or limit his common law liability as an insurer, we think the better and wiser opinion is that he shall not be permitted to exonerate himself from liability for his own negligence,- or the negligence of the agents whom he employs to perform the transportation. The undertaking is to carry the goods, and to relieve the carrier from liability for loss or damage arising from negligence in performing his contract, is to ignore the contract itself. It is to say that he shall not be liable for neglecting to do that which he agreed to do, for which alone the goods were delivered to him, and for which alone he has received, or is to receive compensation. This construction would not only be repugnant to the contract, but it would be contrary to' the whole spirit and policy of our laws, which make a person who undertakes to do a particular thing, answerable in damages if, through his own fault or negligence, he fails to do it, or does it improperly. York Co. vs. Central R. R., 3 Wallace, 112. Laing vs. Colder, 8 Barr, 479. New Jersey Steam Nav. *282 Co. vs. Merchants' Bank, 6 Howard, 382 . 2 Redfield on Railways, 98-108. Wyld vs. Pickford, 8 Meeson & Welsby, 443. 2 Parson's Con., 247, note. Sayer vs. Portsmouth R. R. Co., 31 Me., 228. Farnham vs. R. R. Co., 55 Penna. St., 53. Angell on Carriers, §§ 265, 267. And he is responsible, notwithstanding the special agreement, for ordinary neglect; that is'to say, for 4he want of ordinary diligence. Wyld vs. Pickford, supra. Angell on Carriers §§ 54, 268. 2 Parson's Contracts, 5th ed., 243, note.

The special agreement may be in the form of a special acceptance of the goods by the carrier, as by a unilateral bill of lading, or receipt. Dorr vs. N. J. Steam Nav. Co. 11 N. Y. 491 . Bowman vs. Am. Express Co. 21, Wis. 152. 2 Bedfield on Railways, 28. Prentice vs. Decker, 49 Barbour, 30. Farnham vs. R. R. Co. 55 Penn. St. 53. Angell on Carriers § § 54, 220.

But to bind the shipper by the terms of the special acceptance, he must expressly assent to it, or it must be brought home to him under circumstances from which his assent is to be implied. Judson vs. W. R. R. Co. 6 Allen. 489. New Jersey Steam Nav. Co. vs. Merchants’ Bk. 6 Howard, supra. 2 Redfield on Railways, 22, 93.

In this case it appears that simultaneously with the delivery of the goods to the defendants, the receipt above recited was delivered to the plaintiffs’ consignors, and it was produced in evidence by the plaintiffs upon the trial. In Ihe absence of evidence to the contrary, it is to be presumed that the consignors were the plaintiffs’ agents to contract for the transportation of the goods; and the delivery of the receipt to the consignors must be held to be ecjuivalent to a delivery to the plaintiffs, to whose possession it appears to have come. And as there is nothing tending- to show that any objection was made to the terms of the receipt, or that *283 they escaped attention, the assent of the consignors — the plaintiffs’ agents, and of the plaintiffs through their agents— to such terms, is also to be presumed. Gould vs. Hill, 2 Hill, 623 . 2 Parson's Contracts, 234. 2 Redfield on Railways, 22, 28. Bowman vs. Am. Express Co., 21 Wis., 158 . King vs. Woodbridge, 34 Vt., 571 . Shaw vs. Railway Co., 13 Ad., & El., N. S., 347. Palmer vs. Grand Junction R. W. Co., 4 M. &. W., 749. Dorr vs. N. J. S.eam Nav. Co., 1 Kernan, 491. "We are not, however, to be understood as determining that the circumstances under which receipts of this character are delivered may not sometimes be such as to repel any presumption of assent to their terms arising from the simple fact of taking such recepts. And this brings us to the most difficult question in the case, via : what is the fair construction of the receipt ?

The defendants style themselves “ express forwarders,” and they agree to “ forward” the goods. But this language does not necessarily give them the character of simple forwarders, nor prevent them from being treated as common carriers. Buckland vs. Adams Exp. Co. supra. Read vs. Spaulding, 5 Bosworth, 404.

Then they agree to forward “ only perils of navigation and transportation excepted;” but while this exception embraces more than the “ act of God,” it goes no farther than to exempt the carrier from liability for such perils as could not be foreseen, or avoided, in the exercise of care and prudence. The exception does not excuse the carrier for negligently running into perils of the kind mentioned. The proper construction is analagous to that which is put upon the words, “perils of the sea,” or “dangers of the lake,” jn bills of lading. Fairchild vs. Slocum, 19 Wend. 332 ; S. C. 7 Hill, 292 ; Whitesides vs. Tharlheld, 12 Smedes & Marshall, 599; Hayes vs. Kennedy, 41 Penn. State, 378; Ed *284 wards on Bailments, 492-496, and cases cited; Angell on Garriers, §§ 166-174. While then it would seem very proper to hold that a snag in one of our western rivers is a peril of navigation, as appears to have been done in Tennessee, (see cases cited in Edwards’ Bailments, 492,) if a vessel is wrecked upon one through the negligence of. the carriel’, or of those whom he employs, as the - referee finds in the case at bar, the carrier is not absolved. Under such circumstances, the loss is properly attributed to the agency of man, not to the peril of navigation. Having undertaken to carry the goods, the carrier shall not be heard to set up his own negligence to excuse him from responsibility.

The receipt goes on to say, “and it is hereby expressly agreed, and is part of the consideration of this contract, that the American Express Company are not to be held liable for any loss or damage, except as forwarders only.” By this clause it is contended that the responsibility of the defendants is limited to that of forwarders pure and simple, that pro hac vice they are forwarders to all intents and purposes. Now a mere forwarder is absolved from liability upon showing that he used ordinary diligence in sending on the goods, by careful, suitable and responsible carriers. Edwards on Bailments, 293; Roberts vs. Turner, 12 Johns. 233 ; Brown vs. Dennison, 2 Wend. 594 ; Johnson vs. N. Y. Centnral R. R. Co. 33 N. Y. 611 . And the defendants insist that the boat, by the sinking of which the loss in this case was occasioned, being staunch and strong, properly manned and equipped, and run by a responsible company, they, the defendants, have done all that was required of them, and are therefore not liable. But looking at the whole scope of the receipt, and at the mode in which the defendants transact their business, we think the construction contended for by the defendants cannot be allowed. The *285 defendants do not agree to simply forward the goods as mere forwarders do, by delivering them to a carrier. In such cases, if the forwarder has exercised due .diligence in selecting the carrier (when no particular carrier is designated by the owner of the goods) his duty is discharged; his connection with and responsibility for the goods ceases; he has no interest in the freight, nor anything to do with their ultimate delivery to the consignee at the point of destination. Put in this case the defendants not only agree to for-' ward the goods, but to forward them to their own agent. As the defendants state in their answer, such agent is, according to their usual course of business, to deliver the goods to the owner personally, and he receives the entire charges.

A messenger in the employ of the defendants accompanies the goods as they are being transported, to take general charge of tlie same, and attend to their transhipment and delivery to the proper local agent. The defendants are not simply agents for the shipper to contract for the transportation of the goods. There is no contract between the owner of the goods and the owners of the vehicles, or vessels, which the defendants employ, in conducting their business. The goods are delivered in the first instance to the defendants; the defendants through their messenger have charge of them during their transmission ; the defendants employ the vehicles and vessels used in transportation for themselves, not for the shipper; the goods when they reach the point of destination are passed over by the messenger to the defendants’ local agent, and by him delivered to the consignee. As remarked in a former part of this opinion, the defendants must, under this state of facts, be regarded as common carriers. Their contract is to carry the goods, and having entered into this contract, they are not to be permitted to *286 say that they shall not be responsible for the negligence of themselves, or of the agencies employed by them in its performance, though they may, by special agreement, modify and limit their common law liability as insurers of the goods.

From the very nature of their business, and of the service which they undertake to render to the plaintiffs, the defendants are hot forwarders, but carriers, and when they assume to restrict their liability to that of forwarders, it is as much as to say that they will not be responsible to the owners of the goods according to their true character, and to the actual relation which they sustain to them. In our opinion, then, the effect claimed for this clause of the receipt by the defendants is inconsistent with, and repugnant to the scope and intent of the receipt, viewed as a whole, and in connection with the facts'showing the defendants’ real character and mode of doing business. And although the defendants’ liability at common law, as a common carrier and insurer of the goods, is modified by other provisions of the receipt, as well as possibly in some respecté by the clause under consideration, it is not so far modified by either as to exempt the defendants from responsibility for their own negligence, or the negligence of the agents employed by them in the transmission of the goods. In fact, so far as the simple duty of carrying is concerned, this clause would seem to have no bearing or application. In Hooper vs. Wells, Fargo & Co., 27 Cal., 11 , where an express receipt contained a stipulation that the express company were “ not to be responsible except as forwarders, ” it was held to mean that the “liability” shall be governed by the principles of law applicable to forwarders; that is, that they shall only be liable for losses arising from a want of ordinary care on the part of themselves, and in the agencies made use of by them in the exercise of their ordinary business of car *287 riers. But though the view thus taken by the supreme court qf California would in the case at bar lead to the same conclusion to which we arrive, the construction strikes us to be somewhat forced. We think the view which we take is the more rational, and it is substantially the same suggested by Mr, Bedfield in his note to the case cited, 2 Redfield on Railways, 4th Ed., 25.

In the case at bar,- then, the receipt, and for the purposes of this action, the value of the goods, and the loss by the sinking of the boat being undisputed, and the fact being found by the referee that the loss was occasioned by the negligence of those who were running the boat, judgment was properly rendered against the defendants. We have not adverted to the finding, that the express messenger was also guilty of negligence, because that finding is not necessary to support the judgment, as well as because we have great doubt whether it is supported by the evidence in the case.

Judgment affirmed.