Gibson v. American Merchants' Union Express Co.

Headnote

Common carriers — limitation of liability by provision in receipt—notice—loss beyond lines of .contracting carrier—refusal of consignee to receive goods “ C. O. B.”

Plaintiff’s clerk delivered to defendant, an express company, a box of goods for transportation to a point beyond defendant’s lines, and upon the lines of another express company. The box was directed to “ S. F. D.” and the company was directed to collect on delivery, of the consignee, $45. At the time the box was delivered to defendant, a receipt filled out by plaintiffs clerk was given by defendant, in which it was stated that defendant only undertook to carry the box to the point on its own lines nearest the point of destination, to there deliver it to the other company, that defendant should be Hable only as forwarder and not for loss by fire, and that it should not be liable for loss at a point not on its own lines. The box was delivered by defendant to the other company at a point on defendant’s lines nearest the destination of the box, and was by that company tendered to the consignee, who refused to pay the charges. It was then taken to the storehouse of that company, in the same place, and while there destroyed by fire. Held, (1) that plaintiff had legal knowledge of the contents of the receipt; (2) that under its provisions defendant was not liable for loss after delivering the box to the next carrier in the usual course of business, and the direction to collect on delivery did not change the character of the shipment so as to make defendant liable. Held, also, that in this case, after tender to the consignee and refusal to accept, the carrier became liable only as warehouseman, and only for a loss occurring from negligence.

Appeal from a judgment of the county court of Montgomery affirming a judgment in favor of the plaintiff, DeWitt 0. Gibson, in a justice’s court.

On the 20th day of February, 1871, the plaintiff delivered to defendant at Fort Plain, ÍT. Y., a box containing a light double har

ness worth $45, marked “S. E. Dana, Malden, West Virginia, G. 0. D. $45.” From blank receipts left by defendant with plaintiff, his son and clerk drew np a receipt for this box which was signed by defendant’s agent and returned to plaintiff. By the terms of that receipt defendant undertook to forward the box to the nearest point of destination reached by defendant, but was not to be liable for any loss or damage, except as forwarder only, nor for loss by fire, nor any default or negligence of any company to which the property might be delivered for transportation, etc., off the route of defendant, nor was such other company to be deemed the defendant’s agent, but on the contrary, it was to be taken as plaintiff’s agent as to this property. The defendant took the box and transported it to Columbus, Ohio, the nearest point on its route to West Virginia, and at Columbus on the 22d day of February, defendant delivered said box in good order to Adams Express Company. By this last company the box was transported to Malden, West Virginia. When it reached Malden does not appear. The evidence tended to show that the package was tendered to S. F. Dana, the consignee, who refused to receive or pay the charges and collection thereon. When this was does not appear. Upon the 2d day of March, 1871, the box still being in the possession of Adams Express Company at Malden, the express office was burned, and with it this box and its contents. The cause of the fire does not appear. After the burning of the box the plaintiff at Fort Plain demanded the amount to be collected by defendant, or a return of the property. Upon a failure to do either, this action was brought, and plaintiff recovered $45 damages. The judgment of the justice was affirmed by the county court and an appeal is now taken to this court.