Southern Express Co. v. Hess , 53 Ala. 19 ( 1875 )

BRICKELL, C. J.

1. The appellee, who was plaintiff in the court below, was examined as a witness on interrogatories. The second interrogatory required him, if he had an invoice of the goods shipped, to append it to his answer, and to state the part of the goods received, and the part not received, with their value. He answers, appending the invoice; enumerates the articles not received, and the value of each, and then states — “the values attached to each article are the invoice prices, and the total value of the missing articles is one hundred and sixty-three and 25-100 dollars. An objection was made to this last statement, because the invoice was not produced, and because the witness was not testifying of his own knowledge of the value of the missing articles, but only as to the value assigned them in the invoice. The objection does not seem to us well taken. The invoice is appended and the fair construction of the answer is, that the witness is stating the cost or the price charged the consignee for the ai’ticles, which he affirms their value at the place of shipment. An invoice is a list of goods sold, and the prices charged for them, or of goods consigned axxd the value at which the consignee is to receive them. The value affixed to the missing articles by the invoice is stated by the witness to be their value. The evidence may or may not have been subject to criticism because the witness does not disclose that he ever saw or examined the articles, or how he derived a knowledge of their value. Such considerations do not affect .the competency of the evidence, whatever importance a jury .-might attach to them in determining its weight.

2. It must now be regarded as settled upon principle and authority, that express companies are, in every just sense of that term, common carriers, subjected to all the responsibilities the law attaches to those who pursue the business of common carriers. Southern Express Co. v. Crook, 44 Ala. 468. In eases of ordinary bailment the general rule is, that the bailee is chargeable not by the delivery of goods, but by reason of negligence. Hence in an action against the bailee, not only the delivery, but negligence must be proved. As to carriers the rule is otherwise. The law casts upon him the onus probandi, if he claims exemption from liability. Proof of delivery to him, and his failure to re-deliver upon demand is sufficient to charge him, unless by proof it appears that the failure was occasioned by some of the exceptions which relieve him from liability. Steele & Burgess v. Townsend, 37 Ala. 254; M. & W. P. R. R. Co. v. Moore, June term, 1874; Edwards on Bail, 565-70.

3. A package of jewelry consigned to the appellee at Selma, in this State, was delivered for transportation to the Adams Express, at Louisville, Kentucky. That company gave the consignor a receipt or bill of lading, stipulating for the transportation of the package along its line to the point nearest the destination, and its delivery there for further transportation to a connecting line, and restricting its liability as a common carrier to its own line. The evidence as to the true relation existing between the Adams Express and the appellant, is very meagre. It appears only the two companies connected at a point from which the one received goods destined for points on the line of the other. How freight was paid or what arrangement existed between them about freight, its collection and division, does not appear. They did not pro-rate freights is the only evidence. What is intended by the expression we are left to conjecture. Whether it was intended that each charged and collected its own freight, or that they did not apportion the freight according to the distance goods were carried by the one or the other, but that each company made its own charges, and received them without any liability for them resting on the company delivering the goods at their destination, cannot be determined. It does appear the course of business between the two companies was that the one received from the other at the point of connection goods destined for places on its own line of transportation. This fact of itself constituted the one company, the agent of the other, as to such freight, and its consignor and the consignee. When the goods are delivered to the consignee at the place of destination, freight not having been paid, and he pays it to the company, delivering them, no liability would rest upon him to the other company for the freight over its line. The company delivering would, have the right to receive such freight, and to retain the goods until it is paid. Regarding each company as the agent for the other, the bill- of lading or receipt given by the one is evidence against the other for the purpose of showing the goods delivered, their condition at the time of delivery and the terms of shipment. If the company finally delivering the goods does not deliver them in the condition in which they were received by its agent, then it must account for the injury. The onus probandi rests upon it to show that the injury occurred without its fault or neglect. To the extent of involving it in the liability of a common carrier after the goods shall come to its custody, the company receiving the goods had authority. (The liability certainly attaches when the goods are delivered by the connecting company. As we have said in all cases of loss or injury, the onus probcmdi is on the carrier to exempt himself from liability, for the law imposes the obligation of safety upon him. Story on Bailments, § 529. The failure to deliver charges him prima facia, he having received the goods. It appears the goods were received by the Adams Express standing to the appellant in the relation of agent, contracting for the appellant for transportation along its line, and delivery at the place of destination. There is but a partial delivery of the goods. Has the appellant delivered all it received from its agent ? How did it obtain a part and not the whole ? The answer to these inquiries lies peculiarly within the knowledge of the appellant, and until by proof it shows a delivery of all it received, the presumption must attach that the loss occurred by its default. If, as the appellant insists, it is liable only for losses or injuries on its own line, when a loss is shown, and a loss which could have occurred while it had custody of the goods, and there is evidence the goods were delivered to it, it must account for the loss. The loss is a fact resting peculiarly within its knowledge. Here, how easy for the appellant to have shown it delivered the package in the condition in which it was received, and thus on its own theory of the character and extent of its liability have discharged itself? The consignor or consignee cannot be expected to accompany tbe goods over the whole line of transportation, watch over them, and be prepared to prove when a loss occurred and which of the carriers is liable. The one delivering the goods must show he has done his duty, safely delivered in the condition in which he received them, or he must answer for the loss or injury which has occurred. The rulings of the circuit court conform to these views, and its judgment is affirmed.