Harrison v. Weir — 69 N.Y.S. 957

Majority

p. 957

(34 Misc. Rep. 519.)

HARRISON v. WEIR.

(Supreme Court, Appellate Term.

April 22, 1901.)

Headnote

1. Common Carriers—Loss of Animals—Breach of Contract.

Where defendant contracted to ship five dogs for plaintiff on a particular train, and by reason of their being shipped on an earlier train, and the consequent failure of plaintiff to be present to receive them, one of them died from the long confinement, defendant was liable for the loss.

3. Same—Duty of Shipper—Question—Materiality.

Plaintiff contracted with defendant to ship certain dogs by a certain train, and delivered them to defendant in a crate, and thereafter took the crate containing them to the place at which they were to be left. Defendant shipped them by an earlier train, and, no one being present to receive them, they were returned to the place of shipment. The crate was locked, and plaintiff telephoned to the place of shipment to have them forwarded. One of them died from excessive confinement. Held, that defendant was liable for breach of contract to ship on a particular train.

Appeal from municipal court, borough of Manhattan, Second- district.

p. 958

Action by- Roger G-. Harrison against Levi C. Weir, as president of the Adams Express Company. From a judgment in favor of plaintiff, defendant appeals. •

Affirmed.

Argued before BISCHOFF, 3?. J., and CLARKE and LEVF/N-TRITT, JJ.

R. R. Rogers, for appellant.

H. Hoffman Browne, for respondent.

Plaintiff delivered a crate containing five dogs to the defendant’s company for carriage to Danbury, Conn., the agreement being that the animals should be forwarded by a particular train, in order that the plaintiff might give his personal attention to them during the journey. The company failed to perform its agreement. and forwarded the crate upon an earlier train, with the result that it was finally returned to the plaintiff’s address in this city, after he had arrived at Danbury. Learning of this at a time when no train was available, he communicated, by telephone, with one of his neighbors, and instructed him to deliver the crate to the company again for immediate delivery, and it finally reached Danbury, but, as an incident of the long confinement in the crate, one of the dogs died. The amount of the judgment is well within the evidence as to the value of this dog, and there is no ground for the assumption that any improper items of damage, claimed by the plaintiff, were included. The only question which the record presents, and the sole point taken upon this appeal, relates to the award of damages for the loss of the dog, and in our view the case was properly decided. Granting that a common carrier’s liability as an insurer does not extend to the carriage of animals, the plaintiff’s right to a recovery in this case is still unaffected. His case is not rested upon the mere fact that the dog died, but upon the company’s breach of its contract to transport the animal by a particular train, and the question of the general liability of the carrier under an ordinary contract of carriage does not arise. The carrier having made the agreement for a special transportation, the plaintiff was under no obligation to explain the precise consequences which would follow its breach. Assumedly, there would be peculiar consequences; otherwise, the special mode of carriage was unnecessary. It is quite clearly disclosed by the record that the cause of the dog’s death was an overstrained bladder, which, because of its training, it could not relieve during confinement; and that excessive confinement was due to the defendant company’s breach of its contract can hardly be disputed. Upon discovering the defendant’s failure to perform, the plaintiff did all he could to save himself from loss. He could not return to the city to reship the dogs, because there was no train; the crate could not be opened by others, because he had the key; and he certainly was not required to keep an agent in Hew York for the sole purpose of attending to the forwarding of these dogs in his absence, in anticipation of the defendant’s failure to perform the contract which had been made. By enlisting the services of his neighbor, the plaintiff did all that was to be done, and whether the neighbor used all possible dispatch or not is immaterial, as we view the case. The loss of the dog was the approximate result of the defendant company’s

p. 959

breach of its express contract, and to absolve it from liability upon the facts disclosed would be an injustice to the plaintiff, which no principle of law would serve to uphold.

The judgment should be affirmed, with costs. All concur.