6 Whart. 505 | Pa. | 1841
The opinion of the court was delivered by
This is an action of assumpsit against the defendants as common carriers. The material facts were these: Eagle & Co. purchased goods from Eagle, Westcott & Cambless, which were packed, marked, and taken to the defendants’ store, who undertook to deliver them to the plaintiffs, merchants living in Columbia, Lancaster county. The plaintiffs gave in evidence the receipt of White & Co., and the bill of lading of the goods: and also proved, that when the cars came to be unloaded at Columbia, one of the trunks, No. 445, mentioned in the receipt and bill of lading, was rifled of its contents. There is no room for doubt that the goods never came to the possession or' custody of the owners; but it is clear they were lost after the defendants took charge, and before they were actually delivered. It was also proved, that the cars which contained the goods were sent on Haldcman’s sideling, by the direction, and at the request of the plaintiffs, on the evening ofSaturday, the 12thofMarch.
The defence taken at the trial was, that the goods were delivered, or if not delivered, that the delivery was prevented by the interference of the plaintiffs, who took charge of the goods before they arrived at their ultimate place of destination.
A common carrier undertakes generally, and -for all people indifferently, to convey goods and deliver them at a place appointed for him, and with or without a special agreement as to price. He is in the nature of an insurer, and is answerable for accidents and thefts, and even for a loss by robbery. He is answerable for all losses which do not fall within the excepted cases of the act of God, or inevitable accident, without the intervention of man and and public enemies. This, as Chancellor Kent remarks in his Commentaries, title Bailment, has been the settled law for ages; and the rule is intended as a guard against fraud and collusion, and is founded on the broad principles of public policy and convenience. It
The court very properly charged the jury that it was the duty of the defendants, as common carriers, to cause the goods to be actually delivered to the plaintiffs. And that they were not so delivered, scarcely admits of doubt. The cars arrived at the head of the inclined plane on the afternoon of Saturday, and in pursuance of directions from one of the plaintiffs, were placed on Haldeman’s sideling, about sundown of that day. The testimony of two- witnesses, Plaines and Moss, shows, that so far from the goods being delivered, the plaintiffs refused to receive them, on the allegation that they were engaged, and that it was too late to unload the cars. It also appears that the key of the cars and the manifest were retained by the carriers, and that there was no tender or offer to deliver them to the plaintiffs. It must be remarked, as in Ostrander v. Brown, (15 John. R. 48,) the question is not as to the place of delivery, on which I give no opinion, but whether there was any delivery at all. Common carriers are ordinarily bound to carry goods entrusted to their conveyance to the residence or place of business of the consignee; but whether this rule can be conveniently applied to the business usually transacted by canal or railroad, may admit of doubt. M‘Clelland & Younge’s R. 129. Stone v. Cowly, (5 T. R. 394.) It cannot be pretended that there was an actual delivery. But was there any thing proved which is equivalent to an actual delivery ? And if there was, it must be in the alleged tender, or because the delivery was prevented by the interference of the plaintiffs.
In Stone v. Cowly, above cited, it is taken as a general rule, that a carrier, having once tendered a delivery, has discharged himself from his obligation as carrier; because, otherwise, says Alexander, C. B., where is his liability to cease 1 Where is the line to be drawn, ■if not there 'Í To construe his undertaking in any other way would be attended with the greatest inconvenience: and I would therefore hold the rule to be as stated in ordinary cases. I take no' exception to the rule when confined to his extraordinary responsibility as carrier, and with the qualification that the tender must be made at a proper time, in a proper manner and at the proper place. If the tender is wanting in any one of these essential requisites, his responsibility as carrier still continues. If this point was made at the time,
The court gives an affirmative answer to the several propositions of the plaintiffs, but always with a qualification of which the plaintiffs complain. To the first point, they say, “But the defence taken here renders it necessary for me to add, that if the usual and proper steps towards an actual delivery were prevented by the interference and conduct of one of the plaintiffs, the rule is not applicable; and the jury will decide the facts. The consignee may take charge of the goods before they arrive at their ultimate place of delivery, and the carrier’s risk will then terminate.” And again, to the second point, the court, after instructing the jury that placing the cars on Iialdeman’s sideling was no delivery to the plaintiffs, add, “ But if they were so placed by the plaintiffs’ direction, and an actual delivery was thereby prevented, such delivery could not be required.” In this, I understand the court to instruct the jury explicitly, that if they believe the cars were put at the place directed by one of the plaintiffs, the carrier’s risk terminated; which was in fact equivalent to instructing them to find for the defendant. They put the case entirely on the interference and conduct of the plaintiffs, whereby an actual delivery was prevented, and on the consignee taking charge of the goods before they arrived at the ultimate place of destination. I have looked through the testimony in vain for any evidence on which the court could submit such a point to the jury, and find nothing on which it can be raised except the direction that the cars should be put upon,, Haldeman’s sideling. On this part of the case, I throw out of view the point that the plaintiffs began to unload the cars before the arrival of the agent, on Monday, because that is only material as bearing on the question, if it be one, whether
This suit was instituted to recover the value of á box of merchandise delivered by the plaintiffs, to be carried to Columbia, in this state, and there delivered to the plaintiffs.
And first, it appears that when the property arrived at Columbia, the carrier was not to deliver it at the door of the owners. The rail- ■ road did not in any way approach nearer than thirty or forty yards of the plaintiffs’ store, and the plaintiffs employed the drays or wagons tt> receive it from the cars an'd carry it to their store. They did not allegé that the defendants were to do this. Three cars were loaded with goods belonging to the plaintiffs, or consigned to them. " It appears that after arriving in Columbia, there is a sideling, i. e., a side track, which approaches nearer to the plaintiffs’ store than the main track of the state. This is the private track of Mr. Ilaldeman. Stephen
This is the amount of the testimony. Certain points of law were propounded to the c'ourt, and each of them answered. The first was, “ It was the duty of the defendants as common earners to cause the goods to be actually delivered to the plaintiffs.” The court said, “this is true; but the defence here renders it necessary for me to add, that if the usual and proper steps towards the actual delivery were prevented by the interference and conduct of one of the plaintiffs, the rule is not applicable, and the jury will decide the facts. The consignee may take charge of the goods before they have arrived at - the ultimate place of destination, and the carrier’s risk will then terminate.”
I refer to the statement of the case for the other points and answers, which are all in substance the same, and all present the same question, viz., whether any substantial interference by the owner such as directing a different route or a different place of leaving the goods overnight, does not discharge the carrier, so far as relates to what occurred on that route or at that place, without any fault of the carrier. I am not disposed to alter the general liability of carriers; but one exception has been made, and I would adhere to it; I mean in cases in which the owner takes the direction and management from the carrier. The carrier is answerable for every- accident and misfortune to the goods, arising from any cause other than the act of God or a public enemy; among other reasons, because he has the exclusive direction of the route and place of deposit at night; but if the owner can interfere and change these, the -carrier is to answer to the owner for the acts of the owner; that is, he is to answer not only for himself, but to another, for what that other did. •
Judgment reversed; and a venire de novo awarded.