Majority
p. 434THE GORHAM MANUFACTURING COMPANY, Plaintiff, v. WILLIAM G. FARGO, President of the American Merchants Union Express Company, Defendant. Before Monell and Freedman, JJ. Decided April 5, 1873.
Headnote
I. Common Gabbier of Merchandise. —When not excused for Loss.1. Ffon-information by the shipper of the contents and value of a valuable package (he not being interrogated on the subject) will not relieve the carrier from liability for its loss.
2. Fraud, imposition, unfair concealment, or disguise of the package will relieve the carrier. .
But
the delivery of a box seven or eight inches long, by five or six high and wide, made of § or •£ inch boards, wrapped in heavy brown paper, tied with heavy twine, and sealed with sealing-wax at every crossing of the twine and on the knot where ib was tied, addressed to a well-known silver-manufacturing company, and weighing about twenty pounds, without any statement made as to its value or contents, no questions being asked on those subjects, the box in fact containing silver coin, does not constitute fraud, imposition, unfair concealment, or disguise.
Non
will the facts that such a box was transmitted to the carrier through an expressman, who knew that the carrier had in his place of business two counters, one for ordinary merchandise, and the other for money packages ; that he delivered the box at the counter for ordinary merchandise; that he did not know the contents or value of the box; that he made no statement on the subject, and no questions were asked; and that the sum he charged for the box was less than he ordinarily charged for valuable packages, constitute fraud, imposition, unfaw concealment, or disguise.
Exceptions ordered to be heard at General Term.
The action was brought for the loss of a package of silver coin, received by the American Merchants Union Express Company, for carriage.
The evidence on the trial established the following facts:
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In June, 1869, plaintiff’s agent purchased for account of the plaintiff, from one Elliot in Newbury port, Mass., a lot of Haytien silver coin, worth $339.90 in U. S. currency, which price the company paid him therefor. -Elliot was directed to forward the coin by express to plaintiff at Providence, R I.
He packed the coin in a wooden box about seven to eight inches long and about five or six inches high and wide. The box was made of f or § inch boards. The coin weighed nearly 19 lbs., and with the box about 20 lbs. The box was rolled up in heavy brown paper, tied with heavy twine and sealed with green sealing-wax at every crossing of the twine, and on the knot where it was tied, and stamped with a $10 gold piece; it was directed to plaintiff, Providence, Rhode Island, and delivered by Elliot to Grillett & Co., proprietors of the Neivburyport and Boston Express.
Nothing was said as to the charges on the box. Grillett fixed the charge at what he thought proper and collected it from the defendant. He charged twenty-five cents, which was the ordinary charge for merchandise,, and less than the ordinary charge for coin. Elliot testified that he told Grillett that the box was a valuable one, and that it contained silver ; but Grillett denied it, and also denied any knowledge as to its contents. Gillett & Co.’s driver delivered the package at Boston to the receiving clerk -of the defendant, who paid the driver Grillett & Co.’s charge, and the driver delivered it to the defendant in the same manner in which he was accustomed to deliver ordinary merchandise. The driver had not been informed by Grillett, and did not know what the package contained, or that it was valuable, and did not state what it contained, nor was he asked any questions.
Defendant’s office in Boston contains two counters or departments about thirty feet apart, one intended for money or valuable packages, the other for ordinary
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merchandise. The merchandise department is nearest the door, and the clerk at that counter is accustomed to ask the value of packages brought to him, and to send persons bringing money packages to the other counter. He did not ask the value of this package, because the person who brought it was an expressman. He inferred that it was merchandise from the sum which the previous carrier had charged.
The package left defendant’s Boston office about a quarter to three on that day, and was never heard of after that time. Search was made, but it was never traced, and defendant was never able to find it. Defendant also proved the custom of Ms company to take special care of money packages, and to charge a greater compensation therefor than for ordinary merchandise, that by the act of the previous carrier in delivering it at the wrong counter his company was led to believe, and did believe, that the package was not a valuable one, and was thereby led and induced to treat and care for the said package as ordinary merchandise, and not as a package of money, coin, or valuables.
At the close of the testimony on both sides, the court held that there was no question for the jury to pass upon, and directed the jury to find a verdict for the plaintiff for to which ruling and direction
defendant’s counsel excepted.
The jury rendered a verdict as directed, and the court ordered the entry of judgment to be suspended and the exceptions to be heard in the first instance at General Term.
C. N. Bangs, attorney, and Thomas M. North, of counsel for plaintiff,
urged: 1. It is admitted that any “false statement, or unfair concealment, or malicious suppression of facts, whereby the carrier is misled, will exempt Mm from the responsibility of a common carrier” (A ngel on Carriers, sec. 258; Story on Bailments,
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sec. 565; 2 Kent's Com.. 603, 604; Redfield on Railways, 299, and cases there cited).
The proposition is sound, but not applicable to the facts in this case.
The owner of property does not lose his rights against a carrier by a merely unskilful mode of packing his goods, or by mere silence. There must be fraudulent deception by some misstatement or artifice, with intent to defraud the carrier of a compensation proportionate to the risk he assumes, and the amount of care required of him.
There is not the slightest evidence of any fraudulent intent on anybody’s part in this case.
2. The rule does not require a consignor to volunteer any information to the carrier, or make any statement whatever, unless he is asked by the carrier.
“The carrier is bound to make the inquiry as to the value of the box, or the articles delivered to him, and the owner must answer at his peril; and if such inquiries are not made, and it is received for such price for transportation as is asked with reference to its bulk, weight, or external appearance, the carrier is responsible for the loss, whatever may be its value ’ ’ (Orange Co. Bank v. Brown, 9 Wend. 115 ; Walker v. Jackson, 10 M. & W. 168; Angell on Carriers, § 264; Story on Bailments, § 567; 2 Kent's Com. 603, 604; Sewall v. Allen, 6 Wend. 335 at page 349; Hollister v. Nowlen, 19 Id. 234 at page 245; Cole v. Goodwin, 3 9 Id. 251 at page 265; 8 Pick. 182 ; Brooke v. Pickwick, 4 Bing. 218; Sleat v. Fogg, 5 B. & A. 342; Batson v. Donovan, 4 Id. 21).
Beardsley & Cole, attorneys, and of counsel for defendant,
urged : 1. The question of the liability of the defendants in this case must rest upon che principles of the common law. There was no special contract in the case, and no notice was shown. It is submitted that under the common law the plaintiff cannot recover.
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2. The common law imposes extraordinary obligations upon the common carrier, and in proportion to the rigor of the liability it gives the carrier the right to demand compensation proportionate to the risk, and gives him a summary mode of enforcing payment. It is a fundamental proposition that the common carrier is liable in respect to his reward, and that the compensation should be in proportion to the risk.
3. There was an unfair concealment and material suppression of facts when the package in question was delivered to the defendants, and they were misled thereby. They made a less charge for the carriage of the package than they would have made, and have been entitled to, had they known its value, and they also took less care of the same; the package was placed on the floor with ordinary merchandise, when, had its contents or value been known to the defendants, it would have been placed in a safe for transportation.
Unless, then, fraud or negligence on the part of the defendants be shown, the plaintiff cannot recover (Angell ón Carriers, §§ 258-262; 2 Kent's Com. 603, 604; Story on Bailments, § 565; Edwards v. Sherratt, 1 East. 604; Batson v. Donovan, 4 B. & Ald. 21 ; Orange Co. Bk. v. Brown, 9 Wend. 116 ; Purcell v. Drew, 25 Wend. 85 ; Warner v. West. Trans. Co., 5 Robt. 390, and cases there cited).
4. Even though it be held that it is the carrier’s duty to inquire as to the value of packages delivered to him, in this case it would have been unavailing, because the person delivering it could have given no information concerning it.
Besides, it is submitted that the fact that the package in question was delivered by an expressman who was known to be acquainted with and to observe the requirements of the defendant in respect to the delivery of packages, excused the defendants from making inquiries
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as to the value of the package. The delivery of the package in the manner stated was a clear representation that it was but an ordinary package. A statement in words to that effect could not have been plainer. The defendant was then justified in treating it as an ordinary package, and it was subject to the risks and casualties incident to that class of merchandise.
The American Merchants Union Express Company was, in respect to the package in question, a common carrier. The package was addressed to well-known manufacturers of silver. There was no fraud, imposition, unfair concealment, or disguise of the package, so as to entitle the defendant to claim the benefit of the rule laid down in Warner v. Western Transportation Company, 5 Robt. 490. The external appearance of the package was in harmony with its contents, and in connection with the size and weight of the package, indicated clearly that the latter was not one containing ordinary merchandise. Mo proof was adduced that coin is not commonly packed as this was, and there is no claim that any verbal misstatement was made by any one, or to any one, in the matter. In such case the rule is that a consignor is not bound to volunteer any information to the carrier, or to make any statement whatever, unless he is asked by the carrier.
The carrier is bound to make the inquiry as to the value of the box, or the articles delivered to him, and the owner must answer at his peril; and if such inquiries are not made, and it is received for such price for transportation as is asked with reference to its bulk, weight, or external appearance, the carrier is responsible for the loss, whatever may be its value.
Defendant’s receiving clerk testified that it was the general rule to ask the question, “What is the value of this package?” and if information was refused, not to
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decline carrying, as the company lawfully might, "but to receive the package and to place on the receipt, “value asked, not given.” But in this case, he asked no questions and undertook to use his own judgment. And finally, it should "be pointed out that the defendant did not show under what circumstances the package was lost, or show that its loss resulted from the difference in care which the company was accustomed to exercise towards merchandise and valuable packages.
From this it follows, that, being a common carrier and having received the package without a special contract in limitation of the common law liability, and the same having been lost while in the carrier’s possession, but not through the act of G-od or of the public enemy, the company is liable for its value within the general rule as to the responsibility of common carriers; and as no request was made for the submission of the case, or of any particular question of fact involved therein, to the jury, a veidict was properly directed in favor of the plaintiff (Schroff v. Bauer, 42 How. 348 ).
Defendant’s exception should be overruled and judgment absolute ordered for plaintiff on the verdict with costs.
Monell, J., concurred.
Cases cited
- Sewall v. Allen 6 Wend. 335 p. 437