136 Ky. 379 | Ky. Ct. App. | 1910
Opinion of the Court by
— Affirming.
- Sarah J. Hall.by her .agent delivered to tlxe appellant company at Kenova, AY. Va., a trunk to be shipped by it to Harold, Ky. She paid 50 cents in advance for the transportation by freight of the trunk. There were no marks on the outside of the trank to ■indicate who owned it, bnt the agent at Kenova attached to the handle of the trank a metal check, and delivered to the agent of the appellee a duplicate. At the time the trank was shipped, and when it was received at Harold, it was securely locked and in sound condition. The trank contained a lot of clothing, and also $687.50 in money. After the trank had been at Harold a few days, and before it was called for, the
There is no contradiction in the evidence that, when the trunk reached Harold, it was securely locked- and in sound condition and contained the money sued for. Nor is there any denial of the fact that the trunk was broken open by the agent. The agent did not testify in the case, and there is no direct evidence that he abstracted the money, but many circumstances not necessary to detail points to him as the guilty person, and there was sufficient evidence to warrant the jury in so finding.
The court instructed the jury that if they believed from the evidence that the trunk contained the money, and that it was taken from the trunk by the agent of the company while the trunk was in his charge as such agent, they should find for Mrs. Hall, and refused upon the request of the company to instruct the jury, first, that if they believed from the evidence £ £ the trunk was such as is generally used to contain things of ordinary personal apparel and of apparently small value, and plaintiff failed to disclose to the defendant company, its officers and agents, the real value of the contents of the trunk, and' that the same contained money, they should find for the company;” and, second, “that if they'believed
Passing for the present the question that the carrier is not liable because it did not have notice that the trunk contained money, we hold that it will not be permitted to escape liability upon the ground that its agent in breaking open the trunk and abstracting the money committed a crime or acted outside the line of his duty or the scope of his employment. When the carrier accepted the trunk, it assumed the obligation of delivering it to the owner in the condition in which it was when received. In other words, it became an insurer against any loss or damage to the trunk except that caused by the act of God or the public enemy. To hold that a common carrier may be exonerated for loss occasioned to freight, if the loss is caused by the wrongdoing of one of its servants in charge of the freight, would be to establish a rule entirely at variance with all the law on the subject of the duties and liabilities of common carriers, and to announce a doctrine that would leave the shipper defenseless from the acts of the very person into whose absolute care he had intrusted his goods. The shipper has no voice in the selection of these agents, and no control whatever over their habits or conduct. They are selected by the carrier, employed and discharged by it at pleasure, and it owes a duty to the public to see to it that they are honest and faithful in the performance of the services for which they are employed. If they are not, the carrier is answerable in damages for their wrongdoing or misconduct, whether it amounts to a crime or not. The fact that the act is criminal in itself, and subjects the
The next question presented is that the carrier is not liable because it had no notice that the trunk contained the money. No inquiry as to its contents was made by the agent to whom the trunk was delivered for shipment, nor can it be said that any intentional concealment of its contents was made by the consignor. The failure of the consignor to inform the agent of the carrier that the trunk contained money was not due to any purpose on his part to practice a deception or obtain a lower rate than would be
If, therefore, the agent of the carrier had made inquiry of the shipper, and had been informed that the trunk did not contain money, or if there had been any intentional concealment or fraud practiced by the shipper for the purpose of deceiving or misleading the carrier as to the value of the goods, there would be no difficulty in determining that the carrier was not liable. But, in the absence of evidence of this character, the case comes down to the narrow question whether or not the failure of the consignor to notify the carrier that the trunk contained money relieves the carrier from liability. It may be con
Lee v. Burgess and Graham, 9 Bush, 652, was an action to recover from a common carrier the value of money received by'it for shipment and lost. In considering the case the court said: “It is not pre- • tended in. this case' that the carrying of money is within the ordinary and usual business of a steamboat, and, therefore, it will not do to say that because goods, wares, merchandise, and passengers are carried on this boat therefore the bwners are
In line with these cases, it is generally ruled that a common carrier of passengers that permits them to carry personal baggage is not liable for the loss of an unusual amount of money carried in a trunk or package as baggage, or for more than might be needed to defray the usual personal and traveling expenses of the passengers. Hutchings v. Western & Atlantic R. Co., 25 Ga. 61, 71 Am. Dec. 156; Jordan v. Falls River R. Co., 5 Cush. (Mass.) 69, 51 Am. Dec. 44; Hawkins v. Hoffman, 6 Hill (N. Y.) 586, 41 Am. Dec. 767; Orange County Bank v. Brown, 9 Wend. (N. Y.) 85, 24 Am. Dec. 129; Illinois Central R. Co. v. Matthews, 114 Ky. 973, 72 S. W. 302, 24 Ky. Law Rep. 1766, 6 L. R. A. 846, 102 Am. St. Rep., 316.
We might further add that in these days there would be little reason for holding that a railway common carrier should be required to accept money to be shipped as freight, because there is operated in
In reaching this conclusion, we have not overlooked the fact that the Constitution declares that the common-law liability of a carrier shall not be limited. We have no intention of doing this, but we have found no authority holding that at common law, in
But the point is further made that, although the reasons stated are sound and would be applicable if Hie trunk had been lost by negligence or the money ,;fcolen by a stranger, as it was taken by an agent of the carrier, it can not claim exemption. The argument in support of this proposition is that the agent represented the carrier and in the eye of the law was the carrier, and hence as the money was taken by the agent to whose care the goods were committed; it can not excuse itself on the ground that it had no notice of the contents of'the trunk, as it did have such notice when the money was taken, and must be held liable for its own individual wrong. If the carrier or its agent into whose custody the trunk came did not have notice of the fact that it contained money, the carrier will not be liable. But here the agent of the carrier in whose immediate care the trunk was placed did have notice that there was money in the trunk, and after such notice did abstract it. We, therefore, think that the commission of the theft by its agent is sufficient .to hold the carrier, although it would not have been liable if the money had been taken by a stranger or had been lost by its negligence or other cause. When the agent took the money, it was the carrier itself taking it. When the agent discovered that there was money in the trunk,
Nor can his wrongdoing be excused upon the ground that the shipper himself was guilty of the first wrong. Whatever wrong the shipper is chargeable with can not save the carrier from the tort of its own agent after he had notice of the fact that there was money in the trunk. It is upon this ground alone that we hold the carrier liable.
Wherefore, the judgment of the lower court is affirmed.