11 N.Y.S. 871 | N.Y. Sup. Ct. | 1890
Upon the trial of this case, it appeared that the trunk of plaintiff reached the office of the defendant company at Watertown on Saturday, October 26, 1889. The following Monday, in the forenoon, the plaintiff, who lived a short distance out of town, called at the office, and found there his trunk. He testifies that on that occasion he said to the agent of the company there in charge of the office that he wanted to take some things out that belonged to one Smith, and then leave the trunk there till the following day, or the next, to enable him to have it taken to his place by some teams drawing brick, and the agent replied that, if the plaintiff paid the charges and signed the receipt book, he could take the things out and leave the trunk, and it would be all right; that he then paid the charges and signed the receipt, opened the trunk, and took out some things, then locked it and left it there. Upon the following Wednesday he went again to the office, and was informed by the agent that the trunk had been delivered to other parties the day before, upon the supposition that the plaintiff sent for it. The plaintiff further testified that he never authorized any one to go and get the trunk, and had never received it. As to the delivery, the agent testified that two men with a team called at the office, asked for the Oderkirk trunk, said that the charges were paid, and that it was receipted for, and that he then pointed out to them the trunk; and they took it, and that he did not ask them for any order, or whether they had any authority from Oderkirk to send for it, and he did not know who the men were. The claim of the defendant is that upon the plaintiff’s evidence there was a complete delivery to the plaintiff, and the company ceased to be liable in any capacity, and that any agreement with the agent that the trunk might remain did not bind the defendant. The court adopted this view and granted a nonsuit. The plaintiff asked to go to the jury upon the question whether there was such a delivery by defendant and acceptance by plaintiff as terminated the obligation of the defendant as a common carrier; also on the question whether the delivery of the property by defendant’s agent to a third party was such negligence as rendered the defendant liable as warehouseman; also as to whether the defendant did not assume the obligation of gratuitous bailee, and was not guilty of such gross negligence in the misdelivery of the property as made it liable. The court denied each of these requests, and the plaintiff excepted.
The property was allowed to remain at the express office for the convenience solely of the plaintiff. This, according to the doctrine laid down in Fenner v. Railroad Co., 44 N. Y. 505, would relieve the defendant from liability as a common carrier. In that case, the goods, after the freight was paid and the receipt signed, were, for the convenience of both parties, allowed to remain overnight in the freight-house of tfie defendant, and during the night the freight-house and goods were burned up without any fault or negligence of defendant. It was held that defendant could not be held as an insurer. It does not, however, follow that, because liability as a common carrier had ceased, there was no liability at all. In Tarbell v. Shipping Co., 110 N. Y. 170, 17 N. E. Rep. 721, it is said “that in many cases a carrier’s whole duty, in respect to goods carried by him, is not discharged by a constructive delivery, terminating his strict responsibility as a carrier. Although a consignee may neglect to accept or receive the goods, the carrier is not thereby justified in abandoning them, or in negligently exposing them to injury. So