Dionne v. Am. Express Co.

• Decision Date: 02 July 1917
• Citation: 101 A. 209,91 Vt. 521
• Parties: DIONNE v. AMERICAN EXPRESS CO.
• Court: Vermont Supreme Court

101 A. 209

91 Vt. 521

DIONNE

v. AMERICAN EXPRESS CO.

Supreme Court of Vermont. Caledonia.

July 2, 1917.

Exceptions from Caledonia County Court; Zed S. Stanton, Judge.

Action on the case by Theresa M. Dionne against the American Express Company, with plea of general issue. Verdict for plaintiff, and defendant brings exceptions. Affirmed.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

Porter, Witters & Harvey, of St. Johnsbury. for plaintiff. Simonds, Searles & Graves, of St. Johnsbury, for defendant

MUNSON, C. J. The plaintiff seeks to recover the value of a box of merchandise which was destroyed by the fire which burned the railroad station at Sheldon Junction in the night of the 7th of September, 1914. The box was left on the station platform in the afternoon of that day, for shipment to Plattsburg, N. Y., shortly before the arrival of the 3:18 train for St. Albans. Another train carrying express left for St. Albans at 8:25 p. m. The evidence was conflicting as to what passed between the plaintiff and defendant's agent regarding the shipment. No receipt or bill of lading or other memorandum of contract was issued by the agent. The defendant moved unsuccessfully for the direction of a verdict on several grounds, of which the only one argued is the want of a receipt or bill of lading.

The Hepburn Act, so called, enacted Tune 29, 1906, in amendment of the Interstate Commerce Act of February 4, 1887, provides:

"That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it. * * *"

Section 10 of the act of 1887 provides for the punishment by fine of any common carrier, and in the case of a corporation, of any officer, agent or person acting for such corporation, who shall willfully do or permit anything in this act prohibited or declared to be unlawful, or "shall willfully omit or fail to do any act, matter, or thing in this act required to be done. * * * The defendant claims that these provisions require that any acceptance of goods for transportation without the issuance of a receipt or bill of lading be treated as the act of the carrier's servant, and not as the act of the carrier, and cites in support of this view the statement in section 11 of Story on Agency that:

"Although a person may do an unlawful act, it is clear that he cannot delegate authority to another person to do it."

The enactment which includes this provision is a regulation of the interstate business of common carriers, and penalties are imposed on the carrier to secure its compliance with the law. The general purpose of the statute is the protection of the public. No duty is imposed on the shipper in connection with the shipment of his goods. The acceptance of the goods for transportation without issuing a receipt or bill of lading therefor is illegal only as to one of the parties. The transportation of goods upon tendering to the carrier its proper charges is, as regards its own line, a service which the shipper is entitled to as of right, and not a matter depending upon negotiation and agreement in assuming the extended liability for shipments over connecting lines under the provisions of this statute, the nature of the carrier's relation to the public remains the same. The rules which determine the legality of ordinary contract undertakings are not applicable.

The effect of this statute was considered in Morrison Grain Co. v. Mo. Pac. R. R. Co., 182 Mo. App. 339, 170 S. W. 404, and there it was said:

"If the carrier chose to accept and begin the transportation of goods without issuing a bill of lading, it would be violating the act referred to, but the relation of shipper and carrier would exist none the less."

In International Watch Co. v. Delaware, etc., R. Co., 80 N. J. Law, 553, 78 An. 49, it was claimed that this provision did not impose a liability upon the initial carrier unless such carrier should issue a receipt or bill of lading for the property received, and the court characterized the claim in this language:

"This contention in substance is that, although the defendant upon receipt of these goods for shipment failed in its duty to issue a receipt or bill of lading therefor, it, by reason of such failure, escaped the liability which would have rested upon it had it performed its statutory duty."

We think it cannot be said that there can be no acceptance for shipment by the agent binding upon the company unless a receipt or bill of lading is given. So it will be necessary to examine the evidence bearing upon this point.

A truckman testified that he took a box for the plaintiff from the fair ground to the station, and left it on the station platform. The plaintiff testified that the box containing the goods sued for was about ten feet long and eight feet wide; that she put tags on an end and side containing the direction "Plattsburg, N. Y., sent by American Express"; that the box was on a truck at the station when she got there shortly before 3 o'clock; that the express agent was standing near it, and she spoke to him about it, and he said he would attend to it; that" he told her he did not have time to get it off on that train, and she asked him if he would change the address if she should phone him to do it when she got to St. Albans, and he said he would; that she did not so phone; that the agent did not ask her to pay charges, and she did not ask for a receipt. The express agent testified that the plaintiff came to the station that afternoon and told him she would have a shipment, going either to Plattsburg or St. Johnsbury, and that she would give him instructions the following day, by telephone or letter, which place she would ship to, and said nothing else; that he told her he could not do anything for her at that time; that he did not see her box, and she did not tell him where it was; that she did not...