100 N.Y.S. 385 | N.Y. App. Div. | 1906
Lead Opinion
The learned trial court held that the property was lost by reason of the defendant’s negligence. This conclusion was based on the assumption that Clum’s Express was the agent of the defendánt, and hence that the defendant was liable for the negligence of its agent or servant. The relationship, however, of principal and agent between the defendant and Clnm’s Express cannot be predicated on the facts which have been made to appear.
Clum’s Express is conceded to have been a common carrier. The evidence shows that it delivered much merchandise for different parties to the steamboat company. This was a matter of daily occurrence. A few months prior to the transaction in question the defendant had received from the plaintiffs other bristle under a precisely similar contract. On that ■occasion the property was transported by the plaintiffs to the defendant through the medium of the Citizens’ Steamboat Company and Clnm’s Express,
The plaintiffs as bailors had the burden of proof to show negligence on the part of the defendant, their bailee. “ As a general rule when a bailee fails on demand to deliver to the bailor property
It may yierliaps be inferred from the evidence that it was a part of the contract obligation assumed by the defendant to redeliver the property to the plaintiffs, but it cannot be inferred that such redelivery was to be made at the plaintiffs’ place of business in the city of New York or even at the steamboat dock in the city of Troy. One of the plaintiffs testified: “ There wasn’t any understanding in relation to that at all; nothing said whatever by me as to how they were to be shipped or by what line they were to be shipped. The only transaction in relation to bleaching the bristle or finishing it for ns was through letters merely notifying him of our shipment to him of certain bristles that we would like to have him finish.” When the defendant redelivered the property to the same common carrier which the plaintiffs had adopted in making the delivery to the defendant the latter had fulfilled his contract obligation, and his liability in respect to the property terminated. He did not disregard any instructions given by the plaintiffs. Nor did he assume to act on his own responsibility in selecting a method of reconveying the property to the plaintiffs. He used the same instrumentalities which the plaintiffs had used for the purposes of transportation. He selected their common carriers. On another trial a different state of facts may be developed, but on the evidence before us we can discover no negligence, or disregard of duty, or breach of contract.
The judgment must be reversed on the law and the facts and a new ti'ial granted, with costs to the appellant to abide the event.
All concurred.
Concurrence Opinion
I concur in the reversal of this judgment upon the ground that the defendant’s liability must rest upon negligence which lias not been proven. His contract to redeliver the goods was not absolute, but was to use reasonable diligence to safely redeliver. The evidence is not as complete as might be wished, though I think it sufficiently appears that Glum’s Express was a common carrier which was generally engaged and trusted fo'r the delivery of goods between Troy and Lansingburg. A delivery, therefore, to Clum’s Express should be deemed an act of reasonable diligence as a step in the redelivery to plaintiffs of their goods. It does not appear that this express was in any discredit or that there was any fact which would lead the defendant to distrust this agency. Recognizing that a failure to redeliver by bailee is prima facie evidence of negligence, I still think that upon all the evidence defendant has shown full execution of a bailee’s duty to exercise reasonable care to redeliver to the bailor.
Judgment reversed on the law and facts, and a new trial granted, with costs to appellant to abide event.