Chesapeake & Ohio Ry. Co. v. Hall

• Decision Date: 13 January 1910
• Citation: Chesapeake & Ohio Ry. Co. v. Hall, 136 Ky. 379, 124 S.W. 372 (Ky. Ct. App. 1910)
• Parties: Chesapeake & Ohio Ry. Co. v. Hall
• Court: Kentucky Court of Appeals

Page 379

136 Ky. 379

Chesapeake & Ohio Ry. Co. v. Hall

Court of Appeals of Kentucky.

January 13, 1910.

Appeal from Floyd Circuit Court.

D. W. GARDNER, Circuit Judge.

Judgment for plaintiff, defendant appeals. — Affirmed.

WORTHINGTON, COCHRAN & BROWNING, F. T. D. WALLACE, WALTER S. HARKINS and JOSEPH D. HARKINS for appellant.

MAY & MAY and JAMES GOBLE for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Affirming.

Sarah J. Hall by her agent delivered to the appellant company at Kenova, W. Va., a trunk to be shipped by it to Harold, Ky. She paid 50 cents in advance for the transportation by freight of the trunk. There were no marks on the outside of the trunk to indicate who owned it, but the agent at Kenova attached to the handle of the trunk a metal check, and delivered to the agent of the appellee a duplicate. At the time the trunk was shipped, and when it was received at Harold, it was securely locked and in sound condition. The trunk contained a lot of clothing, and also $687.50 in money. After the trunk had been at Harold a few days, and before it was called for, the agent of the company at that place, under the pretense that he wanted to know who was the owner of the trunk, broke open the lock in the presence of some persons who happened to be present, and ascertained from letters in the trunk the name and address of Mrs. Hall, the owner. Some time afterwards, Mrs. Hall got possession of the trunk, and discovered that the money was missing. Whereupon she brought suit against the company to recover the value of the money. A trial resulted in a judgment in her favor, and the company appeals.

There is no contradiction in the evidence that, when the trunk reached Harold, it was securely locked and in sound condition and contained the money sued for. Nor is there any denial of the fact that the trunk was broken open by the agent. The agent did not testify in the case, and there is no direct evidence that he abstracted the money, but many circumstances not necessary to detail points to him as the guilty person, and there was sufficient evidence to warrant the jury in so finding.

The court instructed the jury that if they believed from the evidence that the trunk contained the money, and that it was taken from the trunk by the agent of the company while the trunk was in his charge as such agent, they should find for Mrs. Hall, and refused upon the request of the company to instruct the jury, first, that if they believed from the evidence "the trunk was such as is generally used to contain things of ordinary personal apparel and of apparently small value, and plaintiff failed to disclose to the defendant company, its officers and agents, the real value of the contents of the trunk, and that the same contained money, they should find for the company;" and, second, "that if they believed from the evidence that the money was willfully and voluntarily taken from the trunk by the agent, and appropriated by him to his own use, that the company was not liable for his wrongful acts."

Passing for the present the question that the carrier is not liable because it did not have notice that the trunk contained money, we hold that it will not be permitted to escape liability upon the ground that its agent in breaking open the trunk and abstracting the money committed a crime or acted outside the line of his duty or the scope of his employment. When the carrier accepted the trunk, it assumed the obligation of delivering it to the owner in the condition in which it was when received. In other words, it became an insurer against any loss or damage to the trunk except that caused by the act of God or the public enemy. To hold that a common carrier may be exonerated for loss occasioned to freight, if the loss is caused by the wrongdoing of one of its servants in charge of the freight, would be to establish a rule entirely at variance with all the law on the subject of the duties and liabilities of common carriers, and to announce a doctrine that would leave the shipper defenseless from the acts of the very person into whose absolute care he had intrusted his goods. The shipper has no voice in the selection of these agents, and no control whatever over their habits or conduct. They are selected by the carrier, employed and discharged by it at pleasure, and it owes a duty to the public to see to it that they are honest and faithful in the performance of the services for which they are employed. If they are not, the carrier is answerable in damages for their wrongdoing or misconduct, whether it amounts to a crime or not. The fact that the act is criminal in itself, and subjects the agent to prosecution, can not lessen the liability of the carrier. It employed and placed him in a position of trust, and the public dealing with it had the right to assume that he was honest. If the trunk while in the custody of the carrier had been broken into by a stranger, and the contents injured or carried away, the carrier as an insurer would undoubtedly be liable, although the act of breaking into the trunk and carrying away the property may have been criminal. As the carrier is liable for the acts of a stranger in injuring or misappropriating goods, we can see no reason why it should escape because the wrong is committed by one of its agents. Its responsibility and liability is the same in the one instance as in the other. In coming to this conclusion we do not find it necessary to inquire into the torts or wrongful acts of the servant that the master will generally not be held liable for, if they are committed by the servant outside the line of his duty or the scope of his employment. The law usually applicable in cases where it is sought to hold the master for the acts of his servant has no place in the consideration of the question we are considering, as the liability of common carriers for loss of property has a separate, distinct, and well-fixed place in the law.

The next question presented is that the carrier is not liable because it had no notice that the trunk contained the money. No inquiry as to its contents was made by the agent to whom the trunk was delivered for shipment, nor can it be said that any intentional concealment of its contents was made by the consignor. The failure of the consignor to inform the agent of the carrier that the trunk contained money was not due to any purpose on his part to practice a deception or obtain a lower rate than would be charged if its contents had been known. In fact, the consignor seems to have been entirely innocent of any purpose to deceive or defraud. He did not know that the trunk contained anything like the amount of money that was in it, although he did know that there was some money in it. Mrs. Hall, the owner, was in another state at the time the trunk was shipped, and merely gave directions to her agent to have it shipped to Harold, without telling him how to ship it or informing him that it contained a large amount of money. The fact, however, that the trunk was shipped by the agent to Mrs. Hall does not place her in any better position than if it had been shipped by her in person as she is bound by what her agent did or failed to do, and the case must be treated as if the shipment had been directly made by her. It would not do at all to say that if the agent or person actually attending to the shipment of an article was ignorant of its contents and innocent of any intention to deceive or defraud, or to conceal the value of the goods, that the carrier would be liable when it would not be if the goods were shipped by the owner or a person who did know the nature and value of the contents. We think this proposition too plain to need further elaboration. So that, if the shipper was under any duty to inform the agent of the carrier that there was money in the trunk, and did not impart this information to the agent, his failure to do so must defeat the right of Mrs. Hall to recover, unless it is saved by the fact that the money was taken by an...