196 A.D. 838 | N.Y. App. Div. | 1921
The plaintiff delivered to the American Express Company, at Newton Center, Mass., on January 2, 1918, a pasteboard box, securely wrapped, containing a fur- neckpiece and muff of the value of $125, to be shipped by express to Pemberton, N. J. • The American Express Company did not have an office at Pemberton and the furs were delivered by it to the. Adams Express Company, which company delivered the box on January sixteenth. At the time it was delivered there was a hole in it and the furs were gone.
This action was brought by the plaintiff against the Adams Express Company, the terminal carrier, to recover the value of the furs, alleging in the complaint that the furs were lost in transit through the negligence of the defendant. The answer is substantially a general denial. The plaintiff proved the delivery of the furs to the American Express Company and offered evidence as to the condition which they were in and the manner in which they were packed, the uniform express receipt, that the goods were not in the box when it was delivered and the value of the goods. At the close of the plaintiff’s evidence the defendant made a motion for a nonsuit which was denied. The defendant then rested and the plaintiff moved for a directed verdict. The defendant’s counsel said that he did not desire to have any question submitted to the jury. A verdict was directed for the plaintiff.
Upon this appeal the appellant urges three points: First, that the package was so insecure that the plaintiff was guilty of contributory negligence in sending it. There is no force in such contention, as there is no evidence to sustain it. Second, the appellant urges that there is no evidence that the furs
Appellant’s third point is that the action could not be maintained against the terminal carrier but that it should have been brought against the initial carrier as the shipment was an interstate commerce shipment and controlled by the Carmack Amendment to the Hepburn Bill, amending the Interstate Commerce Act. (See 34 U. S. Stat. at Large, 593, 595, § 7, amdg. 24 id. 386, § 20. See, also, 34 id. 838, Res. No. 47, and First and Second Cummins Amendments, being 38 U. S. Stat. at Large, 1196, 1197, chap. 176, and 39 id. 441, 442, chap. 301.) Under the common law, in an action against a carrier for loss or damage to goods - shipped, in case the goods passed over the lines of more than one carrier the plaintiff took the chance of suing the right carrier and only the carrier who was negligent was liable for the damage. That resulted in great expense, confusion and hardship, as it was difficult in the case of loss or damage to goods shipped over the lines of several carriers to locate the carrier who was at fault, and even if that were possible that carrier might reside in a jurisdiction different from that of the person suffering the loss. To correct this -unsatisfactory condition the Carmack Amendment was passed which provided in substance that in a case"
There is no force in the appellant’s argument that the right reserved by the Carmack Amendment of any remedy or right of action existing before the passage of that amendment related only to causes of action then in being. It was clearly the intent of the statute to reserve the right to the common-law action, whether existing at the time of the amendment or that might arise thereafter, and the authorities above cited clearly establish that proposition.
I can find no error in the case requiring a reversal. I recommend, therefore, that the judgment be affirmed, with costs.
All concur.
Judgment affirmed, with costs.
