American Express Co. v. Second National Bank

69 Pa. 394 | Pa. | 1872

The opinion of the court was delivered, January 9th 1872, by

Sharswood, J.

A fundamental error runs through and infects the whole charge and the answers of the learned judge below to the points presented, which renders it unnecessary to discuss the assignments in detail. He instructed the jury more than once that the express company had agreed to carry or send the package in question safely to Lancaster and' deliver it to Mr. Funk, to whom it was directed. He entirely put aside, as of no validity, the special contract contained in the receipt, actually filled up.by the bank, and accepted by them, undoubtedly with full knowledge of its stipulations. Pie put this, it would seem, on two grounds, both of which are unquestionably true, but have no application to the case, viz.: first, that common carriers cannot so limit their liability, by special notice or contract, as to exempt themselves from the consequences of their own or their servants’ negligence; and second, that if property is received by a common carrier, and he fails to deliver it safely at its place of destination, the burden is on him to prove that it was not lost or injured while in his custody; and in general, the only way in which he can do this satisfactorily, is by proving when, where, and how the loss did actually occur. There was, however, in this case, no attempt to relieve the common carrier from the necessity of proving to the satisfaction of the jury that the package, after its delivery to the express company, was not broken open and rifled of part of its contents while in the possession and custody of any of their officers or agents. The learned judge thought, and so charged, that it was incumbent on them to prove affirmatively where, when, and by whose negligence, or otherwise, the loss had actually happened. We think, however, that this rule is not applicable to the case. By the express terms of the contract contained in the receipt, the express company undertook only to forward to the nearest point of destination reached by them, and upon this, among other conditions, that they were not to be liable for any default or negligence of any person or corporation to whom they might deliver it at any point off their own established route or line. If they were carriers at all, it was only to the nearest point of destination ; beyond that they were forwarders only. There was nothing unreasonable, unusual or unlawful in such a contract. It is very well settled that forwarders are not insurers as common carriers. They are liable only as ordinary bailees to carry for hire. “A person,” says Mr. Justice Story, “who receives and forwards goods, taking upon himself the expenses of transportation, for which he receives a compensation from the owners, but who has no concern in the vessels or wagons by which they are transported, and no interest in the freight, is not to be deemed a common carrier, but a mere warehouseman or agent: ” Story on Bailees, § 502; Chitty on Carriers 18; Hoop v. Wells, 5 Am. Law Reg., N. S., 16; Jenneson v. The Camden and Amboy Railroad Co., 4 Am. Law Reg. 234; Camden and Amboy Railroad Co. v. Forsyth, 11 P. F. Smith 81.

To hold that a forwarder merely is bound not merely to clear his own skirts of negligence, but to prove when, where and how the loss occurred, would be to impose upon him an obligation which attaches only to a carrier, and not to an ordinary bailee for hire. A carrier, who is bound at all events to deliver safely, must bring himself, by positive evidence, within the exceptions, the act of Grod, or public enemies. Not so an ordinary bailee. It is enough for him to satisfy a jury, by the best evidence in his power, that he has performed his duty with care and fidelity, and that the loss has not arisen from any default of himself or his servants. The jury then should have been instructed that if the evidence satisfied them that the loss had not occurred between Titusville and Corry, either in going or returning, but on some other part of the route, and that in the performance of their duties as forwarders they had used all usual and reasonable care and diligence in the selection of proper carriers, their verdict should be for the defendants.

Judgment reversed, and venire facias de novo awarded.