American Express Co. v. Duncan

• Decision Date: 27 January 1917
• Docket Number: (No. 8511.)
• Citation: 193 S.W. 411
• Parties: AMERICAN EXPRESS CO. v. DUNCAN.
• Court: Texas Court of Appeals

193 S.W. 411

AMERICAN EXPRESS CO. v. DUNCAN.

(No. 8511.)

Court of Civil Appeals of Texas. Ft. Worth.

January 27, 1917.

On Motion for Rehearing, March 5, 1917.

Appeal from Shackelford County Court; J. A. King, Judge.

Action by Claud Duncan against the American Express Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

A. A. Clarke, of Albany, for appellant. S. C. Coffee, of Albany, for appellee.

CONNER, C. J.

The appellee, Claud Duncan, instituted this suit against the appellant, the American Express Company, to recover the sum of $350 alleged to be the value of certain personal effects, of which an itemized statement was made, which had been shipped from Littlefield, Tex., to Albany, Tex., on or about April 1, 1915, and which were never delivered to the plaintiff.

The goods in question were shipped by appellee in person at Littlefield and consigned to himself at Albany. The shipment was made on or about the 26th day of March, 1915, and it arrived at Albany in good condition on the 27th day of March, 1915. Appellant's evidence tended to show that upon arrival at Albany the goods were carefully stored in the building used by appellant as a warehouse, and that on the 29th day of March appellant, by its agent, duly addressed and mailed a notice of the arrival of said goods to the appellee, the notice being directed to him at Albany, Tex. The goods remained in the depot until the night of the 5th of April, 1915, when the warehouse and all of its contents was destroyed by fire, and appellant pleaded its liability to be that of a warehouseman only, and that it had been free from all negligence. The trial, however, resulted in a verdict for appellee in the sum of $200, and the appellant has appealed.

Appellee was an unmarried man, who, when at home, resided with his parents some 12 miles distant from Albany, Tex. Upon the delivery of his goods to the appellant company for transportation he traveled on horseback from Littlefield to his father's home, where he arrived on Sunday evening. April 4, 1915. He made no inquiry of the appellant company that evening, but the next day about noon he did so, and was then informed over the telephone that his goods had arrived and were there in the depot. Appellee testified that it was 12 miles to the depot, that he could have gone after his goods and returned within two or three hours, but that he did not do so on the day of April 5th for the reason that it was not convenient, his father having some other use for his team.

A material question involved in the case is whether the appellant company, under the circumstances, was absolutely liable for the value of appellee's goods as a common carrier, or whether its liability was that of a warehouseman, to wit, only liable for the loss of the goods by fire in the event of negligence on its part. Generally speaking, the rule is not uniform in all of the states, but all authorities seem to agree that a loss by fire, unless it is caused by lightning, does not come within the exception of the act of God, and accordingly is chargeable against a common carrier. The obligation of the carrier includes the obligation of a safe delivery to the consignee, and its responsibility as a carrier continues until it has made actual delivery, or done that which may be considered an equivalent to or the substitute for such delivery, and the mere arrival of goods at their destination is not sufficient to reduce the liability of a carrier to that of a warehouseman. See H. & T. C. Ry. Co. v. Adams, 49 Tex. 748, 30 Am. Rep. 116. On this subject our statutes provide that the duties and liabilities of carriers in this state shall be the same as are prescribed by the common law, except where otherwise provided (Vernon's Sayles' Texas Civil Statutes, art. 707), but further provide (see article 711) that:

"Railroad companies and other common carriers having depots and warehouses for storing goods, shall be liable as warehousemen are at common law for goods and the care of the same stored in such depots or warehouses before the commencement of the trip or voyage on which said goods are to be transported, but shall be liable as common carriers from the commencement of the trip or voyage until the goods are delivered to the consignee at the point of destination."

The next article, 712, qualifies the liability thus imposed in article 711 by further providing that:

"If the carrier at the point of destination shall use due diligence to notify the consignee, and the goods are not taken by the consignee, and have in consequence to be stored in the depots or warehouses of the common carriers, they shall thereafter only be liable as warehousemen."

Appellant insists that the undisputed evidence shows that it used due diligence to notify appellee of the arrival of his goods by post card, and that therefore its liability undisputedly was that of a warehouseman and that the court erred in submitting the issue of negligence in this respect. We hardly feel prepared, however, to uphold this contention. It is true that under article 712, which we have quoted, it was only necessary, in order to reduce appellant's liability to that of a warehouseman, to "use due diligence to notify the consignee" of the arrival of his goods, and if it was admitted that the postal notification was duly addressed and mailed, as testified to, it might be that it should be held due diligence on appellant's part under the circumstances, inasmuch as it further appeared that between the date of the shipment of the goods appellee for several days was traveling over land over the country and admittedly made no call for his mail, and admittedly would not and could not have received the notice until shortly before the fire, but there was further evidence on the part of appellee to the effect that his mail was received by him together with that of his father's family, and the father testified specifically that they had not received any such postal card, and upon cross-examination of the witness who testified to the mailing of the notice he did not exclude a possibility that he may have lost it between the time of writing the notice and the time that he testified that the notice was deposited in the post office. If in fact the notice had been mailed, as related by the witness, the natural inference would be that in due course it would have been received by members of appellee's family, and their failure to so receive, together with the possibility suggested by the cross-examination of the witness, rendered, as it seems to us, the fact of mailing vel non issuable and one for the jury.

Appellant further insists, however, that regardless of the issue of due diligence to notify appellee by mail of the arrival of his goods, such actual notice was shown by the evidence as had the effect of establishing appellant's status of that of a warehouseman rather than that of a common carrier, and, as presented to us, we find no satisfactory answer to the contention. The appellee testified on this subject that the shipment from Littlefield was, as he thought, on March 29th, and that he was some six or seven days on the road from Littlefield to Albany; that the goods left Littlefield a day before he did, and that he reached his home at Albany late in the evening of Sunday, April 4th; that the place he spoke of as being his home is the residence of his father; that he did not know when he reached home whether or not the goods had yet arrived at Albany, and —

"that it was on Monday, April 5th, when he first knew that the goods had arrived; that he so found out by telephoning the agent; that he had not prior to or after that time received any notice to the effect that the goods shipped had arrived; * * * that when he telephoned to the office of the American Express Company he talked with Mr. Finley, and that Mr. Finley told him the goods were there; * * * that he did not make any inquiry regarding the shipment until Monday, when he phoned the agent; * * * that there was telephone connection between the depot and his father's house, but that he did not communicate with Mr. Finley at all on Sunday; that the depot burned on Monday night, and that he knew on Monday the goods were on hand at the depot; that at the time he talked with Mr. Finley over...