American Ry. Express Co. v. Rhody

• Citation: 143 N.E. 640,84 Ind.App. 283
• Decision Date: 23 April 1924
• Docket Number: No. 11829.,11829.
• Parties: AMERICAN RY. EXPRESS CO. v. RHODY et al.
• Court: Court of Appeals of Indiana

84 Ind.App. 283

143 N.E. 640

AMERICAN RY. EXPRESS CO.

v.RHODY et al.

No. 11829.^*

Appellate Court of Indiana, Division No. 2.

April 23, 1924.

Appeal from Circuit Court, Cass County; Paul M. Souder, Judge.

Action by Harrison Rhody and others against the American Railway Express Company. Judgment for plaintiffs, and defendant appeals. Reversed, with directions.Rabb, Mahoney & Fansler, of Logansport, for appellant.

Long & Yarlott, of Logansport, for appellees.

McMAHAN, J.

Appellees recovered a judgment against appellant for the value of certain meat which appellees had shipped from Royal Center, Ind., and consigned to Fred Pegel, Jr., at Lansing, Ill.

The facts were found specially and are, in substance, as follows:

On March 24, 1920, appellees were partners doing business at Royal Center, Ind. Appellees on said day delivered to appellant, a common carrier for hire, a number of carcasses of veal to be shipped to Fred Pegel, Jr., at Lansing, Ill. There was a shipping bill or bill of lading signed by both parties giving the name and address of the consignee and stating that the meat was to be transported to Lansing. This shipment reached Lansing 9:50 a. m. of said day, was unloaded by appellant and placed in the storage room at the railroad depot at Lansing, which was used by appellant for storage purposes. Mr. Pegel lived and had his place of business in Chicago, at a point about 30 miles from Lansing, which is a town of about 1,800 inhabitants, about 10 miles south from the southern limits of Chicago, and about 4 miles west of Hammond, Ind. There was at that time a concrete pavement from Lansing to the business district of Chicago.

Said meat was shipped to Pegel on consignment and was at all times the property of appellees, who had made at least two other shipments in March, 1920, to Mr. Pegel at Lansing. Appellant knew the consignee would receive this shipment of veal at Lansing and take it to Chicago by truck. About noon of said day appellant's agent at Lansing mailed a postal card to Mr. Pegel notifying him of the receipt of the veal. About the time this postal card was mailed and before it was received by Mr. Pegel, he called appellant's agent at Lansing by telephone and was informed of the arrival of the shipment, at which time he told appellant's agent he would call for it some time during that day. Appellant's office and storage room at Lansing remained open in charge of an agent until after 7:25 p. m. of said day.

A truck driver and agent of Mr. Pegel took a truck load of some character from Chicago to Hammond that afternoon and after unloading at Hammond went to Lansing for the purpose of receiving said meat. This truck driver with his truck arrived at Lansing for the purpose of receiving this meat, and could have received it that day, but did not ask for it or receive it that day, but left for Chicago at 7:25 p. m.

Part of this meat was stolen from appellant's storeroom that night without any fault of appellant. The next day said truck driver “returned by rail” and with his truck called for and received from appellant all of said meat, except that which had been stolen. The value of the part stolen was $107.46. On each of the prior shipments from appellees to Mr. Pegel, at Lansing, the latter or his men appeared at appellant's office and received such shipments on their arrival or soon thereafter without any notice from appellant. It was also found that Mr. Pegel did not have a reasonable time after he received notice of the arrival of the meat at Lansing within which to receive and remove it before the night of March 24.

Upon these facts the court concluded as a matter of law that appellees were entitled to recover the value of the meat with interest, and judgment was rendered accordingly.

Appellant contends that, having safely transported the meat to its destination, and having placed it in a place of reasonable safety for delivery to the consignee, its duty as a carrier terminated, and that thereafter it was liable only as a warehouseman. Appellees contend that appellant's obligation as a common carrier had not ceased, for the reason that the consignee did not have a reasonable time in which to remove the meat before it was stolen. The question for our determination is whether under the facts found appellant had fully discharged its duty as a carrier and was simply acting as warehouseman when the meat was stolen.

[1] Under the Interstate Commerce Act of February 4, 1887 (24 Stat. at L. p. 379, c. 104, § 10, as amended by Act June 18, 1910 (36 Stat. at L. 539, c. 309 [U. S. Comp. St. § 8574]), the term “carrier” is defined as including express companies. United States v. Adams Exp. Co., 229 U. S. 381, 33 Sup. Ct. 878, 57 L. Ed. 1237;American Exp. Co. v. United States, 212 U. S. 522, 29 Sup. Ct. 315, 53 L. Ed. 635;State ex rel. v. Adams Exp. Co., 171 Ind. 138, 85 N. E. 337, 966, 19 L. R. A. (N. S.) 93;Adams Exp. Co. v. Cook, 162 Ky. 592, 172 S. W. 1096. The shipment in question being an interstate shipment, the question as to when, if at all, appellant ceased to be a common carrier is a federal question. Barrett v. New York, 232 U. S. 14, 34 Sup. Ct. 203, 58 L. Ed. 483;Southern Ry. Co. v. Prescott, 240 U. S. 632, 36 Sup. Ct. 469, 60 L. Ed. 636;Adams Exp. Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Roberts, Federal Liability of Carriers, §§ 109, 311.

In President, etc., Bank v. Adams Exp. Co., 93 U. S. 174, 23 L. Ed. 872, it is said:

“The duty of a common carrier is to transport and deliver safely. He is made, by law, an insurer against all failure to perform this duty, except such failure as may be caused by the public enemy, or by what is denominated the act of God.”

The nature of a common carrier's liability, when it has transported property and deposited it in a warehouse to await delivery to the consignee, is a question on which three distinct views have been taken by the courts of this country: First. When the transit is ended and the carrier has placed the goods in its warehouse to await delivery to the consignee its liability as carrier is ended, though no notice is given to the consignee, and the carrier is thereafter liable as warehouseman only. This doctrine is what is known as the Massachusetts rule. Second. Merely placing the goods in the warehouse does not discharge the carrier, but it remains liable as a carrier until the consignee has had reasonable time to take them away in the ordinary course of business. This rule is known as the New Hampshire rule. Third. The liability of a carrier as such continues after the consignee has been notified of the receipt of the goods and has had a reasonable time in the common course of business to take them away after receiving notice. This rule differs from the second in that notice to the consignee is required and is known as the New York rule.

The Massachusetts rule has been adopted and followed in Indiana and applied to carriers by railroads. Chicago, etc., R. Co. v. Reyman, 166 Ind. 278, 76 N. E. 970;Merchants Dispatch, etc., Co. v. Merriam, 111 Ind. 5, 11 N. E. 954;Pittsburgh, etc., R. Co. v. Nash, 43 Ind. 423;Cincinnati, etc., R. Co. v. McCool, 26 Ind. 140;Bansemer v. Toledo, etc., R. Co., 25 Ind. 434, 87 Am. Dec. 367. Some of these cases involved interstate shipments, while others relate to intrastate shipments. They were all decided before Congress assumed control over interstate commerce, and therefore are not ruling precedents which we are required to follow in a case involving interstate commerce. If we were dealing with an intrastate shipment made by a railroad, the decisions of the Supreme Court of this state heretofore cited would be binding on this court.

This court, however, refused to apply the Massachusetts rule in an action by a passenger for the loss of his baggage, and held that the railroad was not relieved from its liability as to a passenger's baggage until after the expiration of a reasonable time after reaching its destination. Toledo, etc., R. Co. v. Tapp, 6 Ind. App. 304, 33 N. E. 462;Pennsylvania Co. v. Liverright, 14 Ind. App. 518, 41 N. E. 350, 43 N. E. 162.

The exemption of carriers by water and carriers by railroads from making personal delivery to the consignee does not ordinarily extend to express companies. With the introduction of railroads, express companies were established for the purpose of extending to the public the advantages of personal delivery, the same as had theretofore been performed by carriers by land. Witbeck v. Holland, 45 N. Y. 13, 6 Am. Rep. 23. The rule requiring personal delivery became the rule as to express companies. Such carriers, however, may be relieved from making personal delivery, by agreement of the parties or by proof of a usage so established and well known as to be the equivalent of an agreement. American Express Co. v. Hockett, 30 Ind. 250, 95 Am. Dec. 691.

[2][3] The duty of an express company with respect to property which has reached its destination and is awaiting delivery is that of either a common carrier or a warehouseman. As its liability as a common carrier is that of an insurer, while as a warehouseman it has to exercise only reasonable care, it is a matter of importance to determine whether appellant's liability for the loss of the meat shall be tested by its duty as carrier or warehouseman. The determination of this question depends upon ascertaining the time when its duty as a carrier ceased, if at all, and that of a warehouseman began. It is clear that until it performed all it duties as a carrier it remained liable as an insurer. Generally the duty of an express company is to deliver goods transported by it to the consignee at his residence or place of business, and until such delivery is made or waived by the consignee, or the express company is absolved from the performance of this duty by rule, usage, or custom, its liability as a carrier will continue.

[4] While the special finding discloses...