Trowbridge v. Chapin

| Conn. | Jul 15, 1855

Hinman, J.

We think the verdict, in this case, so clearly against the weight of evidence, that a new trial must be granted on that ground. We are not called upon to determine any point of law in the case, because the parties claim, or admit the law to be, that, in order to charge a common carrier with the loss of goods, it must be shown that they were delivered to, and received by, • him or his agent, to be carried; and it is further claimed by the defendant, and admitted by the plaintiff, that the ordinary hands, or in other words, the crew of a vessel are not, generally, agents of the owners, for the purpose of receiving them. The business of the crew is to navigate the vessel, under the direction of the master; and the master, or some officer under him, should receive and discharge freight, as well as superintend the navigation of the vessel; and all the difficulty there is, in the case, is in the application of these familiar principles to the facts proved. It was proved, by the defendant, that the clerk of the boat was the only person whose duty it was to receive, take an account of, and give receipts for freight. This was the uniform mode in which freight was received for transportation. But the plaintiff did not prove a delivery to this officer, nor to the master, nor to any one acting in the behalf of either of them, so far as the evidence shows. The trunks were carried on board by Swain, a porter, and he says that he saw only one man there, who was engaged in sweeping, or washing out, the boat. He thought, from his appearance, he had been washing the decks. Swain merely informed him, that he had a couple of trunks for New Haven, and asked where he should put them. The man, pointing to a spot, told him to put them there, which he did, and left the vessel without any enquiry as to this man’s name, or business, or whether he belonged to the vessel, or had any authority to receive freight, or whether there was any one on board who had such authority; and he made no examination himself, to see whether there were other persons on board, or not. Now, it is very probable that the man on board belonged to the boat; still it is quite possible that he might have been a mere dock laborer, employed only to wash the decks, or to cleanse the boat. But whether he belonged there, or not, his employment and appearance, as described by the plaintiff’s witnesses, indicate that he was an ordinary hand, or common laborer, rather than any officer of the boat. Under such circumstances, it appears to us, that it was the obvious duty of Swain to have made further examination and enquiry, before he left the trunks. Had he gone to the office, very probably he might have found the clerk; and it is quite clear that many others, beside the man he saw, might have been on board at the time, without his seeing them. We presume, from the defendant’s testimony, that other persons were there, but whether so, or not, it was gross carelessness in the porter to leave the trunks as he did, and we do not see how the jury could have found that they were properly delivered, and received, by the defendant, for transportation. It was said that, as the boat was at the dock for the purpose of receiving freight, the porter had a right to infer that the man on board was authorized to receive it. How this would be, had it been shown that he was the only person there, it is not necessary to determine. But without any evidence of this sort, we see no ground for any such inference. For these reasons, we advise the superior court to grant a new trial of the cause.

In this opinion Ellsworth, and Sanford, J. J., concurred.

Waite, C. J.

I see no reason for disturbing the verdict in the present case. The defendant was the owner of the steamboat Traveller, running between New York, and New Hallen, and as such, a common carrier, and responsible for all goods delivered to him, for transportation, between those places. And this he does not deny.

His defence is, that the goods in question were never delivered to him. But does not the evidence most clearly prove' such a delivery, as makes him chargeable with the possession ?

Two witnesses were introduced, on the part of the plaintiff, whose characters were unimpeached, and who testified that they carried the goods on board the boat, and placed them, as directed by a man they found at work there. There was, indeed, testimony, on the part of the defendant, tending in some slight degree to invalidate their testimony; but, in my judgment, altogether insufficient for that purpose, and so the jury must have thought, as appears by their verdict. Indeed, it has hardly been contended, on the part of the defendant, that a delivery, as stated by the witnesses, was not sufficiently proved.

The main question in the case, is, whether such a delivery is sufficient to bind the defendant.

The testimony is, that the tranks were carried on board the defendant’s boat, on the day of her sailing for New Haven, and during the time when it was customary to receive freight, and when, according to the testimony of his own witnesses, it was usual and customary for him to keep persons there, duly authorized to receive freight and baggage.

The persons who carried the trunks, finding no person on board, or on the deck, but a single man at work, evidently in the employment of the defendant, informed him what the freight was, and where it was to be carried, and left it on board, as he directed. And had they not a right to presume, from the circumstance, that they could find no other person to receive the freight, that he was left in charge, during, at least, a temporary absence of the proper officers of the boat ?

Suppose a quantity of freight had been shipped by the boat from New Haven to a merchant in New York, and a carman had taken it and carried it to the merchant’s store, which he found open, and no one in, or about it, except a man at work in the store, would not the carman be justified in leaving the goods, deposited in the store, in the manner directed by the man at work ?

Would it be his duty to leave his team, and go in search of the merchant, and, in case he could not find him, carry the goods back to the boat ? It seems to me that this could hardly be required.

Were the merchant to say, I am not answerable for the goods,—the man found in my store was but a porter, having no power to bind me by a receipt of goods, even in my own store, the obvious answer would be, then you should not have left him in your store, in a situation to induce the belief that he had power to do an act of that kind, at least during the temporary absence of his superiors.

The rule, that where one of two persons must suffer by the fraud of another, the loss shall fall upon him who placed that person in a situation to commit the fraud, applies in the present case.

If the defendant did not intend that the only person, found on board of his boat, should receive freight, he should not have left his boat, with no other person in charge, during the proper hours for receiving freight. Having done so, the loss ought to fall upon him, rather than upon the men who delivered it. The latter have done all that ought reasonably to be required of them.

It was the duty of the defendant to keep proper men to receive all freight, delivered on board of his boat, during the regular business hours.

And if a loss has accrued, in consequence of his neglect of that duty, the fault was his, and he should bear the loss.

And this is in conformity with the principle, by this court recognized, in a very recent case. Merriam v. The Hartford & New Haven Railroad Co., 20 Conn. R., 354. It was there holden, that a delivery of goods, on the private dock of common carriers, in their exclusive use, and in the usual and accustomed manner, in which they received goods for transportation, was good, and sufficient to charge them with a loss, although neither the carriers, nor their agents, were notified of the delivery. And surely a delivery on board the defendant’s steam boat, with notice to the only person in their employment, found on board, ought to be as effectual as a delivery on their private dock, without notice to any person.

For these reasons, I am of the opinion that no sufficient reason is shown for setting aside the verdict.

Tn this opinion, Storrs, J., concurred.

New trial to be granted.