Bennett v. Am. Express Co.

• Decision Date: 24 March 1891
• Citation: 83 Me. 236,22 A. 159
• Parties: BENNETT v. AMERICAN EXPRESS CO.
• Court: Maine Supreme Court

22 A. 159

83 Me. 236

BENNETT

v. AMERICAN EXPRESS CO.

Supreme Judicial Court of Maine.

March 24, 1891.

(Official.)

Reserved case from supreme judicial court, Penobscot county.

This was an action on the case to recover the value of the saddles of three deer. Plea, general issue.

F. J. Whiting; for plaintiff.

Barker, Vose & Barker, for defendants.

FOSTER, J. It is undisputed that the plaintiff was lawfully possessed and the owner of the saddles of three deer, which were legally killed under the laws of this state; that the same were closely boxed in good condition for shipment, and delivered by the plaintiff onto the platform of the Maine Central Railroad Company at Newport station, plainly marked to the consignees in Boston. The defendants' agent was notified that the box was left for transportation, and thereupon he delivered it into the defendants' car, on the arrival of the train, but no receipt or bill of lading was ever given to the plaintiff. Upon the arrival of the train at Augusta, the saddles were seized by a game-warden, and by him removed from the defendants' car, without any search-warrant or other legal process, and without objections from the defendant company or their agents, and have never since been delivered either to the consignees or the express company.

Upon the facts thus stated, the defendants' liability is fully established. The plaintiff's ownership of the property, its delivery to the defendants for transportation, and their acceptance for that purpose, and its non-delivery to the consignees, are prima facie evidence of negligence. The burden is therefore upon the defendants to show facts exempting them from liability Little v. Railroad Co., 66 Me. 241.

The property of the plaintiff while in the hands of the defendants as common carriers, in transitu, was seized by an officer without any warrant or other legal process. Nor does it appear that any was ever obtained. The officer was therefore a mere trespasser, and the defendants were liable, under the rule of the common law, in the same manner as if they had allowed any other trespasser to take the property out of their custody. Edwards v. Transit Co., 104 Mass. 163. As against the plaintiff, the seizure was of no more validity than a trespass by an unofficial person. There has never been any adjudication from any tribunal that the property seized was contraband, or other than the lawful property of the plaintiff. The common carrier is not relieved from the fulfillment of his contract, or his liability as such carrier, any more than if the loss had occurred from fire, theft, robbery, or accident. He stands in the relation of insurer, where, as in this case, no special contract is shown, and upon grounds of public policy is liable for all losses resulting from accident, trespass, theft, or any kind of unlawful disposition of the property intrusted to him to carry, excepting only such as arise by the act of God or public enemies. Adams v. Scott, 104 Mass. 166; Kiff v. Railway Co., 117 Mass. 593; Fillebrown v. Rail way Co., 55 Me. 462.

In the case of Edwards v. Transit Co., supra, it was held that, while the carrier was not liable in trover for conversion of the property, he was nevertheless liable on his contract or obligations as common carrier, where the officer seizing the property was a trespasser. "The owner may, it is true," say the court, "maintain trover against the officer who took the property from the carrier; but he is not obliged to resort to him for his remedy. He may proceed directly against the carrier upon his contract, and leave the carrier to pursue the property in the hands of those who have wrongfully taken it from him."

But the defendants claim exemption from liability in this action on the ground that the property was put into their possession fraudulently; that having had in their possession, and transported during the year, after the 1st day October, and before the time when this property was delivered to them, three deer from Newport station, to places beyond the limits of the state, they directed their agents not to receive for transportation any deer or parts thereof, and. that this fact was known by report to the plaintiff before he delivered the box to the defendants' agent.

Notwithstanding these facts may all be true, they constitute no defense to this action. The statute invoked by the defendants (Rev.St. c. 30, § 12) is as follows: "Whoever kills, destroys, or has in possession between the first days of October and January more than one moose, two caribou, or three deer forfeits one hundred dollars for every moose, and forty dollars for every caribou or deer, killed, destroyed, or in possession in excess of said number; and all such moose, caribou, or deer, or the carcasses or parts thereof, are forfeited to the prosecutor. Whoever has in possession, except alive more than the aforesaid number of moose, deer, or caribou, or parts thereof, shall be deemed to have killed or destroyed them in violation of law."

The defendants claim that under this statute they could not lawfully take any more deer, or parts thereof, into their possession for transportation before the following January.

But we cannot adopt such a construction of this statute as would make it apply to common carriers. Such construction as claimed by the defendants would make it unlawful for the carrier to transport, between the 1st days...