Southern Express Co. v. Shea , 38 Ga. 519 ( 1868 )

Warner, J.

The error assigned to the judgment of the Court below, in this case is, the refusal of the Court to grant a new trial upon the several grounds specified in the motion therefor. We shall not consider the various grounds embraced in the motion for a new trial, separately, but confine our judgment to the main question made by the record, which must control the case.

■It appears from the evidence, that there were two companies, the Adams Express Company, incorporated in the State of New York, and the Southern Express Company, incorporated in the State of Georgia. The action to recover the loss of the goods, is brought by the plaintiff against the Southern Express Company as a common carrier, upon their implied contract, and not as tort fe-asork^ The contract for the transportation of the goods, was made by the plaintiff with the Adams Express Company in New York, as appears by the receipt given for the goods, to be transported to Macon, Georgia, the point of destination. The goods were lost while in possession of the Southern Express Company, en route from New York to'Macon, and the question is, which company is liable to the plaintiff as a common carrier, upon the contract for the receipt and safe delivery of the goods at the point of destination. In the case of Mosher & Co., vs. The Southern Express Company, (ante 37) it was held, that when a common carrier received and receipted for goods, to be carried to a point of destination, beyond his own line, he thereby undertook to safely transport the goods to that point, either by himself or competent agents, and that, if the goods were lost beyond his own line of carriage, he was liable therefor. The contract in this case was made by the plaintiff with the Adams Express Company in New York, whereby they undertook, as common carriers, safely to deliver thé goods at Macon, Georgia, either by themselves or competent agents. If, therefore, the goods were lost enroute to the place of destination, either whilst in their possession, or that of their authorized agents to complete the transportation, they are liable to the plaintiff therefor on their contract of bailment. This ruling is in accordance with the fundamental principles of the law. “ Bailment, to deliver, is a delivery of goods in trust, upon a contract expressed, or implied, that the trust shall be faithfully executed on the part of the bailee. If money or goods be delivered to a common carrier, to carry from Oxford to London, he is under a contract in law to pay, or cany them, to the person appointed 2nd Bl. Com. 451—2; 3rd Bl. Com. 163. As the decisions of the Courts in this country are conflicting as to the liability of the carrier beyond the terminus of his own route, this Court, in Mosher & Co., vs. the Southern Express Company, adopted the English rule upon that question,* as being the better, and sounder rule upon principle, as well as practical convenience to the public.

In the cases of the Southern Express Company vs. Purcell, 37th Ga. R., 103; and Southern Express Company vs. Newby, 36th Ga. R., 635, this Court held, that under the existing law of this State, a common carrier is liable for the safe delivery of goods entrusted to his care as such, and that in case of the loss of the goods, no excuse will avail him unless the loss was occasioned by the act of God, or of the public enemies of the State; that he cannot limit his legal liability by any notice given, either by publications or by entry on receipts given for the goods, or tickets sold, but that he may make an express contract independent of his receipt and will then be governed thereby. There was no contract between the plaintiff and the Southern Express Company, either express or implied, to transport his goods from New York to Macon, or from any other place to Macon ; indeed, there is no privity of contract for the transportation of the plaintiff’s goods between himself and the Southern Express Company whatever, but there was an express contract made between the plaintiff, by his agent in New York, with the Adams Express Company, to transport his goods safely from that point to Macon, the place of destination. The plaintiff entrusted his goods for transportation from New York to Macon, to the Adams Express Company by his contract of bailment, and not to the Southern Express Company, and although the goods may have been lost whilst in the possession of the Southern Express Company, as the agents of the Adams Express Company, to complete the transportation to the point of destination, the plaintiff’s right of action to recover damages for the loss of the goods is against the company with which he made the contract, the company to which he entrusted the goods for safe carriage and delivery as a common carrier, to the point of destination.

In view of the facts of this casé as presented by the record, we think the Court below erred in its charge to the jury, “ that the defendant, the Southern Express Company, was liable to the plaintiff in this case, as a common carrier, and that said company was liable to the plaintiff, no matter how they received said goods at Savannah, even if they had, as common carriers, picked them up in the streets.”

Let the judgment of the Court below be reversed.

Brown, C. J.

The Adams Express Company had the right to limit its liability to the extent of its territorial limits, or otherwise by “ express contract.” This may be done, in my opinion, by an express stipulation, to that effect, in the body of the receipt given by the company, and accepted by the shipper. Such express stipulation in the body of the receipt is not the “ notice given, either by publication, or by entry on receipts, or tickets sold,” which is insufficient, but is one form of “ express contract,” which is authorized by the Code.

Taking this view of the rights of a common carrier, I think I should hold that the contract contained in this receipt -was complied with by the Adams Express Company, on the delivery of the goods at Savannah, which was, at the time, the extent of their territorial limits as stipulated in the receipt, were it not for the former decision of this Court, ruling, that the liability of a common carrier can not be limited in this way. As I am bound, under the Code, by these “ unanimous decisions” till changed by the Legislature or by this Court, in the manner directed by the statute, I concur in the judgment rendered in this case.

McCay, J.

I concur in the judgment of the Court, but I am not satisfied with the ground on which it is put by the majority of the Court.

It is true, that under the decision of this Court in Southern Express Company vs. Purcell, 37th Ga. R., 110, Shea has a right of action against the Adams Express Company on his implied contract with it. But it strikes me that he has also, if he so elects, a right of action against the Southern Express Company. The Adams Express Company was his agent. It may be true that the Adams Express Company had no right, under its contract with Shea, to-wit: under its duties as a common carrier, to turn the goods over for transportation to the Southern Express Company. But the fact is that it did do so. It made a contract with the Southern Express Company to transport the goods from Savannah to Macon— and it did this as the agent of Shea, without authority, it is true. But it is a general rule that a person may adopt, ex post facto, acts done in his name by another acting without authority. He is not bound to do so. He may sue the actor. But, if he so elect, he may adopt his act and sue on the contract. 13 East., 274; 2 M. and S. 485; 1 Bing. N. C., 198; 2 Strange, 859; 1 Atk., 128; 7 B. and C., 310; 3 B. and Adl., 680 ; Smith’s Mer. Law, 113 ; Bateman Com. Law, section 455.

It is true, if he do adopt the contract he must take it as he finds it. He cannot separate it into parts. He must repudiate it altogether, or ratify it. 2 Strange, 859. And in this case the rule will perhaps be of no benefit to Shea, as the contract of the Adams with the Southern was a special one. But I deem it important that, the principle be preserved. The Express companies are now huge enterprises, and I am not disposed to send our people out of the State for redress, unless that be clearly the law of the case. The practice of these companies is to turn goods over to each other, under contracts which they profess to make as the agents of the owner. Perhaps two-thirds of the goods carried by the Southern Express Company, in this State, have been received and are carried, under such contracts. In my judgment, the owner, though he may have a right to sue the person with whom he made the contract, has also a right, if he so elect, to adopt and ratify the act of his agent and sue the Southern Express Company, not, it is true, on his (the owner’s) contract with the Adams, but on the contract which the Adams (his agent) has made with the Southern Express Company. I think, therefore, Shea had a right to sue the Southern Express Company. But the charge of the Court and the verdict are wrong, because the Southern Express Company, in this view of it, was acting under a special contract and is only bound by its terms.