Christenson v. American Express Co.

• Decision Date: 01 January 1870
• Citation: 15 Minn. 208
• Parties: C. S. C. CHRISTENSON and others v. AMERICAN EXPRESS CO.
• Court: Minnesota Supreme Court

Page 208

15 Minn. 208

C. S. C. CHRISTENSON and others

v. AMERICAN EXPRESS CO.

Supreme Court of Minnesota.

Appeal by defendant from a judgment of the district court, Blue Earth county.

W. P. Warner, for appellant.

Wolfolk & Brown, for respondent.

BERRY, J.

The defendants are an express company, engaged generally and publicly in the business of transmitting for hire goods from place to place, and among others, from New York to Mankato. At different points to which their business extends, they establish local offices, at which an agent is stationed, whose duty it is to receive goods transmitted, and deliver the same to the consignee, as well as to receive goods for transmission. The defendants own no vehicles or other means of transportation except such as are kept at their local offices, and used solely for the purpose of carrying goods to and from such offices to and from their customers, at the places where the offices are established. The practice of the company is to transmit goods by steam-boats, railroads, coaches, etc., owned and controlled by other parties; and it receives to its own use the entire charges for transportation. A messenger in the company's employ accompanies the goods as they are being transmitted, to take general charge of the same, attend to their transhipment, and to their delivery to the local agent at the point of destination.

A common carrier is defined to be "one who undertakes for hire to transport the goods of such as choose to employ him, from place to place." Dwight v. Brewster, 1 Pick. 50, 53; 2 Parsons, Cont. 163; 1 Smith, Lead. Cas. 301.

In Buckland v. Adams Ex. Co. 97 Mass. 124, it is held that one whose business is for hire to take goods from the custody of their owner, assume entire possession and control of them, transport them from place to place, and deliver them at a point of destination to consignees or agents there authorized to receive them, is a common carrier, although he styles himself an express forwarder, and although he contracts with others to transport the goods in vehicles of which they are the owners, and the movements of which he himself does not manage or control. These definitions are in our opinion correct, and the defendants, falling within them, must be regarded as a common carrier. See, also, Sweet v. Barney, 23 N. Y. 335; Russell v. Livingston, 19 Barb. 346; 2 Redfield, Railw. 19, 30.

This action is brought to recover $150 for two chests of tea belonging to the plaintiffs, the receipt of which by the defendants for transmission from New York to Mankato, and the total loss of which by the sinking of a steam-boat, not owned or controlled by the defendants, but upon which the same were being transmitted, are admitted. It is also admitted that the boat sank in consequence of running upon a snag in the Minnesota river; but whether this was or was not owing to negligence on the part of those managing the boat is matter of dispute, as to which the testimony is conflicting. Suffice it to say, however, that there is evidence in the case, reasonably tending to sustain the finding of the referee, that the persons operating the boat were guilty of negligence in running upon the snag, so that there is no occasion to disturb the finding on the ground that it is unsupported by the evidence in this respect. It is found by the referee that Bass & Clark, respondents' consignors, delivered the tea to the defendants at New York, consigned to plaintiffs at Mankato, and at the time of such delivery took from defendants the following receipt:

"American Express Company, express forwarders and foreign and domestic agents. Principal office, Nos. 57, 59, and 61 Hudson street. Branch offices, 124 Broadway and 542 Broadway.

                                         "NEW YORK, April 29, 1867
                

"Bass & Clark delivered to us two chests tea, marked Christenson & Bro., Mankato, Minnesota, which we are to forward to our agency nearest or most convenient to destination, only perils of navigation and transportation excepted; and it is hereby expressly agreed, and is part of the consideration of this contract, that the American Express Company are not to be held liable for any loss or damage except as forwarders only, nor for any loss or damage of any box, package, or thing for over $150, unless the just and true value thereof is herein stated; nor for any loss or damage by fire, the acts of God, or of the enemies of the government, the restraint of government, mobs, riots, insurrections, pirates, or from any of the dangers incident to a time of war; nor upon any property or thing unless properly packed and secured for transportation; nor upon any fragile article consisting of or contained in glass.

                   "For the Company,                           SPENCE."
                

At common law, a common carrier is an insurer of the goods intrusted to him, and he is responsible for all losses of the same, save such as are occasioned by the act of God or the public enemy. Ang. Carr. §§ 67, 148, 153; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. 381.

After much controversy, it may now be taken as settled by the great preponderance of authority that it is competent for a common carrier to modify or limit his common-law liability by special agreement with the owner of the goods. York County v. Central R. R. 3 Wall. 112; Judson v. W. R. Co. 6 Allen, 489; Dorr v. N. J. Steam Nav. Co. 11 N. Y. 491; 2 Redfield, Railw. 93; 2 Parsons, Cont. 233-237, notes, and cases cited.

While there is some conflict of opinion among courts and text writers as to the extent to which the carrier may be permitted to modify or limit his common-law liability as an insurer, we think the better and wiser opinion is that he shall not be permitted to exonerate himself from liability for his own negligence, or the negligence of the agents whom he employs to perform the transportation. The undertaking is to carry the goods, and to relieve the carrier from liability for loss or damage arising from negligence in performing his contract, is to ignore the contract itself. It is to say that he shall not be liable for neglecting to do that which he agreed to do, for which alone the goods were delivered to him, and for which alone he has received or is to receive compensation. This construction would not only be repugnant to the contract, but it would be contrary to the whole spirit and policy of our laws, which make a person who undertakes to do a particular thing answerable in damages if, through his own fault or negligence, he fails to do it, or does it improperly. York County v. Central R. R. 3 Wall. 112; Laing v. Colder, 8 Pa. St. 479; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. 382; 2 Redfield, Railw. 98-108; Wyld v. Pickford, 8 Mees. & W. 443; 2 Parsons, Cont. 247, note; Sayer v. Portsmouth R. Co. 31 Me. 228; Farnham v. Railroad Co. 55 Pa. St. 53; Ang. Carr. §§ 265, 267. And he is responsible, notwithstanding the special agreement, for ordinary neglect; that is to say, for the want of ordinary diligence. Wyld v. Pickford, supra; Ang. Carr. §§ 54, 268; 2 Parsons, Cont. (5th Ed.) 243, note.

The special agreement may be in the form of a special acceptance of the goods by the carrier, as by a unilateral bill of lading or receipt. Dorr v. N. J. Steam Nav. Co. 11 N. Y. 491; Bowman v. Am. Ex. Co. 21 Wis. 152; 2 Redfield, Railw. 28; Prentice v. Decker, 49 Barb. 30; Farnham v. Railroad Co. 55 Pa. St. 53; Ang. Carr. §§ 54, 220.

But to bind the shipper by the terms of the special acceptance he must expressly assent to it, or it must be brought home to him under circumstances from which his assent is to be implied. Judson v. W. R. Co. 6 Allen, 489; N. J. Steam Nav. Co. v. Merchants' Bank, supra; 2 Redfield, Railw. 22, 93.

In this case it appears that, simultaneously with the delivery of the goods to the defendants, the receipt above recited was delivered to the plaintiffs' consignors, and it was produced in evidence by the plaintiffs upon the trial. In the absence of evidence to the contrary, it is to be presumed that the consignors were the plaintiffs' agents to contract for the transportation of the goods; and the delivery of the receipt to the consignors must be held to be equivalent to a delivery to the plaintiffs, to whose possession it appears to have come. And as there is nothing tending to show that any objection was made to the terms of the receipt, or that they escaped attention, the assent of the consignors — the plaintiffs' agents, and of the plaintiffs, through their agents — to such terms is also to be presumed. Gould v. Hill, 2 Hill, 623; 2 Parsons, Cont. 234; 2 Redfield, Railw. 22, 28; Boorman v. Am. Ex. Co. 21 Wis. 158; King v. Woodbridge, 34 Vt. 571; Shaw v. Ry. Co. 13 Q. B. 347; Palmer v. Grand Junction Ry. Co. 4 Mees. & W. 749; Dorr v. N. J. Steam Nav. Co. 11 N. Y. 491. We are not, however, to be understood as determining that the circumstances under which receipts of this character are delivered may not sometimes be such as to repel any presumption of assent to their terms arising from the simple fact of taking such receipts. And this brings us to the most difficult question in the case, viz., what is the fair construction of the receipt?

The defendants style themselves "expressforwarders," and they agree to "forward" the goods. But this language does not necessarily give them the character of simple forwarders, nor prevent them from being treated as common carriers. Buckland v. Adams Ex. Co. supra; Read v. Spaulding, 5 Bosw. 404.

Then they agree to forward, "only perils of navigation and transportation excepted;" but while this exception embraces more...