121 A. 344 | Conn. | 1923
To support this action against the defendant, a common carrier of goods, the plaintiff must have established (1) the delivery of the goods to the carrier; (2) the undertaking on its part to transport them to the named consignee; and (3) the breach of its contract by the defendant through its failure to deliver the goods to the consignee. The finding fails to show the fact of the delivery of the goods to the defendant; all that it shows is the delivery to the defendant of a box purporting to contain shirts. "The law is well settled that until the goods to be carried are delivered for immediate transportation, the receiver does not hold them in the capacity of common carrier. His liability in that capacity commences upon the complete delivery of the goods for immediate transportation." Turner Co. v. New York,N. H. H.R. Co.,
The plaintiff relies upon the bill of lading as prima facie evidence of the receipt of the goods. Unexplained or uncontradicted, that proof would be sufficient to establish delivery, if the bill of lading delivered by the defendant to the plaintiff recited an absolute delivery without qualification as to quantity, condition or contents of box. "It is nowhere questioned that a bill of lading is prima facie evidence of the receipt *132
of the goods by the carrier. . . . But such recitals are not conclusive, and it may be shown by parol evidence that none of the goods, or only a part of the goods, described in the bill of lading were in fact received." 10 Corpus Juris, p. 199; Pittsburg, C., C. St. L. Ry. Co. v. American Tobacco Co.,
But this bill of lading does qualify the receipt of the box by its recital, "The property described below [1 box shirts] in apparent good order, except as noted (contents and condition of contents of packages unknown)." This constituted an express limitation upon the contract of carriage to the goods actually received.St. Louis, I. M. S. Ry. Co. v. Knight, supra; Miller
v. Hannibal St. J. R. Co.,
The point was conclusively determined in Mears
v. New York, N. H. H.R. Co.,
Chief Justice Shaw expressed the opinion of the court in Shepherd v. Naylor, 71 Mass. (5 Gray) 591, 592, in this manner: "In general, the interior condition of the goods, packed as usual, and necessarily so, for shipping, cannot be known to the shipmaster receiving them for carriage, and therefore the words `in good order and condition' must be limited to their apparently good order and external condition."
The appearance of the box when the defendant delivered it to the plaintiff and he in turn delivered it back to the defendant, and when it was received by the railroad in Philadelphia, indicated that it was "securely and tightly closed." From this fact and the character of the package, the court would have been justified in concluding that the box when delivered to the defendant by the plaintiff was in the same condition as when delivered by Sweet, Orr and Company to the railroad in Philadelphia. It was therefore necessary for the plaintiff, since he had no means of proving the contents of the box at the time of delivery to the defendant, to show its contents at the time of delivery to the railroad at Philadelphia. No facts are found by the trial court as to the contents of this box at the time of the delivery of the box to the defendant, or its delivery to the railroad at Philadelphia, and no facts are found from which an inference might be drawn as to *134
the contents of this box. Failing to prove the contents of the box when delivered to the defendant, or to the railroad at Philadelphia, the plaintiff might have relied upon proof of the contents of the box when it left the possession of Sweet, Orr and Company, and supplemented this by proof that the condition of the box remained the same when it was delivered to the railroad at Philadelphia, and of the fact that thereafter its condition did not change. In either of these ways the plaintiff could have met its burden of proving the delivery of the goods to the defendant, for whose loss he sues. Michellod v. Oregon-Washington R. N. Co.,
The finding of the trial court does not support the court's conclusion that there had been adequate proof of the contents of the box when delivered to the defendant, and hence the judgment is erroneous.
There is error and a new trial is ordered.
In this opinion the other judges concurred.