Shenk v. Philadelphia Steam Propeller Co.

The opinion of the court was delivered, by

Sharswood, J.

— It is unnecessary to consider whether the plaintiffs in error would have been liable for the loss of the cotton for which the action was brought, if their undertaking had been to forward it from the terminus of their own route to some other ultimate point of destination.

By the bills of lading the place of delivery was expressed to be “ at their office in Philadelphia.” The words inserted “ to Bitner & Bro., Lancaster, Pa., care of B. Bro., 1015 Market St., Philada.,” as in the bill of November 8th 1865, or “to Bitner & Bro., Lancaster, Pa.,” as in the two other bills, can only he regarded as a designation of the consignees to whom or to whose agent the delivery was to be made.

When the responsibility of a common carrier of freight ends, has been the subject of much discussion and some contrariety of opinion. Judge Story states the rule to be clear that carriers are bound to give notice of the arrival of goods to the persons to whom they are directed and within a reasonable time: Story on Bailments, § 543. The American cases are not very harmonious, but perhaps the current of them sustains him. There are some qualifications of the rule growing out of the different kinds of carriage which are beginning to be generally recognised. A highly respectable court in New Jersey states, as the result of all the cases, that “ the obligation of common carriers by railway is simply to transport the goods to the place of destination, to deposit them without delay and without additional charge in their warehouse until the owner or consignee has a reasonable time to remove them. They are not required, as carriers by wagon, to deliver at the door or place of business of the owner or consignees, nor as carrier by water to give notice of tbeir arrival. Their route being confined to the track of their road renders the first impracticable without the use of wagons, which is not part of the contract, and the usual certainty of the arrival of the trains renders the latter unnecessary, and by the usage of business it is not required:” Morris and Essex Railroad Company v. Ayres et al., 5 Dutcher 393. These distinctions seem founded in reason, and may perhaps reconcile the apparent conflict of authorities, and settle down at last as the true expression of the rule on this important subject. The responsibility of the carrier ought, it would seem, to last either until delivery to the owners or consignees, or until that of some other party begins. Transporters of merchandise may be both carriers and warehousemen, and they cease to be the former when they have placed the goods they have carried in a depot of their own or any other safe warehouse. Their responsibility, as warehousemen, is however only for ordinary neglect: Chicago Railroad Company v. Warren, 16 Illinois 502; Illinois Central Railroad Company v. Alexander, 20 Id. 23.

The New York Civil Code lays down a much more stringent rule, for it provides, sect. 1105, that “ if, for any reason, a carrier does not deliver freight to the consignee or his agent personally, he must give notice to the consignee at its arrival, and keep the same in safety, upon his responsibility as a carrier, until the consignees have had a reasonable time to remove it.”

We are not without decisions of this court which illustrate the subject. In Cope v. Cordova, 1 Rawle 203, it was held in the case of a vessel arriving from a foreign port, that the liability of the shipowner ceases when the goods are landed at the usual wharf; but the reasons adduced in support of it do not apply to the internal or coasting trade, and the court expressly disclaim such an application. Accordingly it was decided in Hemphill v. Chenie, 6 W. & S. 62, that the responsibility of a carrier on the Ohio river does not cease upon the delivery of goods on the wharf. In this case, as.well as in Eagle v. White, 6 Whart. 505, it does not appear to have been considered that even notice to the consignee would relieve the carrier, but that there must be a tender made “ at a proper time, in a proper manner and at a proper place. If the tender is wanting in any of these essential requisites, his responsibility as carrier still continues.” To the same effect is Hill v. Humphreys, 5 W. & S. 123. In conformity to the qualification which I have before adverted to as recognised in some of our sister states, this court has also determined, in McCarty v. The New York and Erie Railroad Company, 6 Casey 247, that when goods have been carried to their place of destination, and then deposited in the carriers’ warehouse, to await the owner’s convenience in taking them away, the carriers are only subject in respect to such goods to the responsibilities of warehousemen, not to those of common carriers. The subject was also considered in Tanner v. Oil Creek Railroad Company, 3 P. F. Smith 411, and the opinion expressed that it is the duty of the carrier to give notice whenever the consignee is known.

In the case before us, indeed, the transporters clearly recognise this to be their duty; .for they expressly declare in the endorsement on the bill of lading, that “ the goods must be taken by the consignee immediately after notice of the landing of the same on the wharves, or the company will not be responsible for any loss or damage that may happen to them.” However it might be if there was no such stipulation, it is very plain that in their own view their responsibility as carriers did not terminate until notice.

It is not pretended that they deposited the goods on their arrival' in any warehouse either of their own or any other person, or that they gave notice to the consignees or owners, but instead of that they delivered them to a master drayman, who employed subordinates to carry them to 1015 Market street, the place named as the store of the consignees. Nine of the bales were never delivered, as the verdict settled.

The learned judge below left it to the jury to say whether the master drayman was the agent of the consignees, and they have found that he was not. Whatever doubt may hang over other questions as to the termination of a carrier’s or other bailee’s responsibility, there is one point which is indisputable, that he must take care at his peril that the goods are delivered to the right person, for a delivery to a wrong person renders him. clearly responsible: Story on Bailments, § 543; Garrett v. Willan, 5 B. & Ald. 53; though innocently and by mistake, as when it is made upon a forged order: Lubbock v. Inglis, 1 Stark. (83), 104; Powell v. Myers, 26 Wend. 591. Such a wrongful delivery has been held in many cases to amount to a conversion, and that trover may be maintained: Stephenson v. Hart, 4 Bing. 476; Syeds v. Hay, 4 T. R. 260; Devreux v. Barclay, 2 B. & Ald. 702; Youl v. Harbottle, Peake N. P. Cases 149; Stephens Nisi Prius 981. The carrier must show that the person to whom the goods were delivered as agent was duly authorized as such by the owner or consignee to receive them, for if he delivers to any but the owner, consignee or agent, he does so at his peril: Adams v. Blankenstein, 2 California 413. Either then the master drayman was a mere stranger, voluntarily assuming to accept and carry the goods to the consignee, in which case delivery to him was wrongful; or he was the agent of the carriers, and they assumed the same duty, and must be considered as'undertaking to carry them from their wharf and deliver them to the agents of the consignee: Smith v. Nashua and Lowell Railway Company, 7 Foster 80. Admitting, which is the most favorable view which can be taken of their case, that their responsibility as common carriers ceased when the goods were landed at their office, they would still be liable as bailees, unless they proved that the goods had been lost without negligence on their part or that of their agents or servants; for it has been held by this court in Verner v. Sweitzer, 8 Casey 208, that a private carrier or ordinary bailee for hire, in case of the nondelivery of goods intrusted to him, is liable therefor in the absence of proof of ordinary diligence, and that the fact of a non-delivery is primd facie evidence of want of ordinary care, and throws the burden of proof on the bailee. These principles show that the plaintiffs in error have no good reason to complain of the charge of the court below.

The refusal to answer as requested in their 1st point forms the subject of the 1st and 2d assignment of error. The 1st was, “ If the jury believe that the employment of Farmer to deliver goods at Atchinson’s warehouse had been heretofore, and was in this instance acquiesced in by Atchinson, the delivery by the defendants to Farmer was a delivery to the plaintiffs.”

Certainly the acceptance by one man of goods from a drayman or porter, is no evidence to constitute the porter or drayman his agent so as to charge him with goods which the porter or dray-man received to deliver but lost- on the way. In Ostrander v. Brown, 15 Johns. 39, it was held that when goods were taken away from the wharf, on which they had been deposited by the carrier, by a cartman usually or always employed by the consignee, but without his orders in this instance, it was no evidence of the delivery of a part alleged to be lost, though then as here the largest part was received.

- The answer to the second point forms the subject of the 3d and 4th assignments of error. It was, “ If the jury believe the 126 bales of cotton arrived at Philadelphia, the contract between the plaintiffs and the company has been fulfilled, and the plaintiffs cannot recover.” As we have seen under the law and the special terms of the contract, the mere arrival of the goods at the office in Philadelphia did not discharge the carriers, and the learned judge might have directly negatived the point. His answer which affirmed it, but left to the jury to say whether the carriers had not assumed to transport and deliver the goods to the agent of the consignees was more favorable to the plaintiffs in error than they had a right to ask. There remain to be considered the 5th and 6th errors assigned, which relate to the answer to the 3d point, which was, “ If the jury believe the plaintiffs or their agents did not notify the company of the deficiency in the numbers of bales received by them until two or three weeks after it was known to them, the plaintiffs cannot recover.” The point was very rightly declined, for certainly the endorsement on the bill of lading, “ no damage allowed, without being notified on receipt of the goods,” by no interpretation can be extended to the case of goods not delivered at all, and so far as delay in making a formal demand bore on the question of fact submitted to the jury, it was very properly commented on by the learned judge.

Judgment affirmed.