63 W. Va. 128 | W. Va. | 1907
In an action pending in the circuit court of Braxton county, on appeal from a judgment of a justice’s court, in which H. B. Hutchinson was plaintiff and 'the United States Express Company defendant, for the recovery of $128.60, the value of a package of furs, stolen from the express company, a demurrer to the evidence was sustained and judgment rendered for the defendant, of which Hutchinson complains here.
Hutchinson, a dealer in furs for a number of years, residing in the vicinity of Cogar, a town in Braxton county, frequently, if not generally, sent out through the country one or more buyers who bought furs at such prices as could be agreed upon and turned them over to him at certain fixed prices, retaining the difference as compensation for the service. These buyers graded the pelts according to quality and shipped them by express to him at Cogar, and if the packages so shipped were small and of little value, he took them from the express office, but if they were of considerable size, he regraded and repacked them for the market and consigned them to a dealer in New York, without removing them from the express office premises. Deliveries were never made to him by the express company, but it was the practice to notify him by mail of the arrival of packages. The furs for the value of which this action was brought had been collected by B. F. Blake, who resided on Hutchinson’s farm,' and by him delivered to the express messenger on the train at a place called Carl Siding, on Saturday, February 4, 1905, consigned to Hutchinson at Cogar. Blake took passage on the same train for the same place, and, on alighting from the train at Cogar, saw the package of furs. This was after 4 o’clock, P. M., of that day. No notice of the
Whether, at the time the package was taken, it was in the hands of the express company as common carrier, or merely as warehouseman, is a question of the gravest importance. A common carrier is exempted from liability for loss of goods, entrusted to it for carriage, in only a few instances, and, subject to these exceptions, it is an insurer of them to the extent of their value. Ordinarily, it can be relieved only on the ground of loss or damage by act of God, vis major or inevitable accident. These are things against which prudence and care cannot avail, and, for that reason, the-law exonerates common carriers from liability for loss attributable to them. Moore on Common Carriers pp. 219, 224, inclusive; Hutchinson on Carriers section 265; 6 Cyc. 316, 377; o Am. & Eng. Ency. Law 233. The exceptions are classified by Hutchinson as follows: (l) Those arising from what is known as the act of God; (2) those caused by the public enemy; (3) those arising from the act of the public authority; (4) those arising from the act of the shipper; and (5) those arising from the inherent nature of the goods. Loss by theft or robbery is not within any of these exceptions. “The common law liability of a com-
By the general rule of law, express companies are required to deliver the goods to the consignee in person, or his authorized agent, at ’his residence -or place of business. The duty of carriage is not terminated on their arrival at the point of destination, that is, at the station or agency to which they are directed. The duty of carriage and the liability as carrier continue beyond this point to the residence or place of business of the consignee. 12 Am. & Eng. Ency. Law 550; 6 Cyc. 454; Hutchinson on Carriers, section 716. In this respect, express companies differ from other public carriers. But this rule is subject to some qualifications. If a diligent and honest effort to find the consignee or any person authorized to receive the goods has proved unavailing, failure to make actual delivery is excused, and the company may then deposit the goods in a reasonably safe warehouse. From the time of such deposit, its liability as carrier ceases and it holds the property in the capacity of warehouseman. 12 Am. & Eng. Ency. Law 551; 6 Cyc. 454; Van Zile, Bailments & Carriers, section 567; Hasse v. Express Co., 94 Mich. 133. Of course the commencement and termination of liability as carrier may be limited and controlled to some extent by special contract. How far this may be dune, it is unnecessary here to inquire. The general rule of law is also relaxed, varied or set aside by usage or custom established by the company and recognized and acquiesced in by the public. The maintenance of delivery messengers and vehicles involves an expense wholly out of proportion to the business transacted at small way stations, and, at such places, a custom or usage generally obtains under which deliveries are not made elsewhere than at the express company office. The consignee, is expected to call at the office for his package after having been notified of its arrival. Even in cities, delivery districts are sometimes established, beyond the limits of which deliveries are not made. Hutchinson on Carriers, sections 7l7, 718; 12 Am. & Eng. Ency. Law 553. The duty to give notice,
But the heavy burden of insurance, incident to the contract of carriage, is not extended farther than is necessary to enforce good faith on the part of the carrier and secure reasonable safety or transportation. While in transit, property is wholly in the hands of the carrier and beyond the personal control of the owner, who can neither know to what perils the carrier subjects it, nor take any measures for its safety, and the opportunities of the carriage contract for imposition by fraud and collusion are very great. These and other considerations form the basis of the insurance feature of the contract, and when these reasons for its continuation have ceased, by the completion of the contract of carriage, the liability of insurer terminates. From its exceptional and arbitrary character, it necessarily follows that
As no notice of the arrival of the package was given, in this instance, it is insisted, in the argument for plaintiff in error, in view of the principles stated, that liability as carrier had not ceased, and the demurrer should have been overruled. But there is another principle which must not be overlooked. The omission of duty, relied upon as fixing upon the carrier liability for the loss, must have been the proximate cause thereof. In Berry v. Railroad Co. this principle was applied against the carrier so as to hold it for the loss. The consignee having called upon the agent for the goods was told, contrary to the fact, that they had not arrived. But for this false statement, they, would have been removed and saved from loss by fire. The false statement by the agent continued or extended the liability of the railroad company as carrier and insurer of the property. Had he truthfully informed the consignee that they had arrived, and they had then been left in the warehouse of the defendant, liability as a carrier would have ceased and the loss would have fallen upon the consignee. Application of the same principle here would exonerate the express company, for, though no notice was given, the result would have been the same, if it had been. The plaintiff himself testifies that if a postal card addressed to him, notifying him of the arrival of the package, had been placed in the postoffice, he would not have received it earlier than Monday evening, the time at which he had actual notice from another source. Hence, he would not have called for the package until the next day. To excuse a carrier from liability on the ground that the cause of the loss was the act of God or the like, it must appear that such act was the proximate, not the remote, cause of the loss. 6 Cyc. 382. Conversely, if the proximate cause is an act of God, the carrier is relieved, although, preceding the loss he had been negligent and but for that negligence, the goods would not have been exposed to the
Lack of sufficient evidence to establish the usage, above mentioned, relieving from the duty to make actual delivery, is suggested but it seems to have been regarded as a con-cesmm. The plaintiff says such deliveries were never made to him. He was simply notified by postal card, and as he was a patron of the office, his testimony lays ample ground for the inference that such was the practice or custom as to all patrons thereof; for discrimination is not to be presumed and none is proven. The inference so raised is not contradicted in any way.
Effort is made to hold the company liable on the ground of the character of the place of deposit. Just what sort of a building it was, the evidence does not disclose, but it seems to have contained at least three rooms, a waiting room, a freight room and an office room, and there may have been another, used as a special place of deposit for express packages. It was entered by breaking a window and prying the hinges of an inner door loose. . The package was left in the freight room. No law requires the maintenance of a burglar proof building and it must be obvious that the ordinary railway station constructed of wood, brick or stone, and having glass windows unprotected by iron shutters, as practically all such buildings have, may be easily entered by any one who wills to do so. The protection upon which the citizen relies for the safety of his property is not so much in the burglar proof character or buildings and other places of deposit, as the honesty of the masses of the people and the wholesome fear which the comparatively few criminals have of the penalties of ciiminal law. This building was not left open nor unlocked and the entry was made with force and violence. There is nothing in the evidence relating to its character or condition which would have warranted a jury in finding a verdict against the defendant on the ground of failure to deposit the goods in a safe place. The evidence wholly fails to show any fact or circumstance tending to prove that the building was not reasonably safe. Nor could a vórdict stand upon the failure to place the package in the express room instead of the freight room.
The views and conclusions just expressed result in an af-firmance of the judgment.
Affirmed.