Green v. Boston & Lowell Railroad Co.

• Citation: 128 Mass. 221
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 24 January 1880
• Parties: Henry H. Green v. Boston & Lowell Railroad Company

128 Mass. 221

Henry H. Green v. Boston & Lowell Railroad Company

Supreme Court of Massachusetts

January 24, 1880

Argued November 6, 1879 [Syllabus Material] [Syllabus Material]

Essex. Contract against a common carrier to recover the value of an oil painting, the portrait of the plaintiff's father. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions in substance as follows:

The portrait was delivered by the plaintiff to the defendant at Lawrence, boxed in a rough board case, to be carried with a large amount of household furniture over the defendant's road, and other roads connecting with it, to Providence Rhode Island.

The plaintiff put in evidence the written contract of transportation with the defendant, dated September 17, 1875 which enumerated the goods received from the plaintiff, marked "H. H. Green, Philadelphia, Penn., via Clyde Line from Providence," agreed to deliver them to the plaintiff, or order, at the defendant's depot in Providence, and contained the following provision: "No responsibility will be admitted, under any circumstances, to a greater amount upon any single article of freight than $ 200, unless upon notice of such amount, and a special agreement therefor. Specie, drafts, bank-bills and other articles of great intrinsic or representative value, will only be taken upon a representation of their value, and by a special agreement assented to by the superintendent." No notice of the contents of the case was ever given to the defendant, and the defendant had no knowledge of its contents until a claim was made for its loss, and no special agreement other than the above contract was made.

The plaintiff testified that he had never received the portrait; that, about two months after the goods were delivered to the defendant, he had a conversation with Abiel Rolfe, the defendant's freight-agent at Lawrence, who said that the defendant had been trying to find the missing case, but so far was unable to do so; that "we or the Clyde Line will have to pay for it," and "we have delivered it to the Clyde Line." This conversation was admitted, against the defendant's objection. The plaintiff also testified, against the defendant's objection, that he had no other portrait of his father.

One Tabor testified, for the plaintiff, that he had charge of the railroad freight of the Clyde Line in Providence in 1875; that he unloaded the cars containing the plaintiff's goods on September 23, 1875, on the wharf of the Clyde Line at Providence; that he could not now remember how long the cars had been on the wharf before he unloaded them; that he did not know whether, when he went to unload them, the doors of the cars were fastened or not; that the case described by the plaintiff was not in the cars with the other goods of the plaintiff, and he never saw the case; that the wharf of the Clyde Line was about two hundred feet long by sixty feet wide; that it was enclosed by a high board fence, and the gate was securely locked at night; and that a watchman was at all times upon the wharf.

Abiel Rolfe testified, for the plaintiff, that he was the freight agent of the defendant at Lawrence; that he had no doubt he signed the contract of shipment; that he attended personally to the loading of the plaintiff's goods, which were put into two cars; that he remembered the case described by the plaintiff; that the car doors were closed and secured by nailing strips of board behind them, so that they could not be opened without removing the strips; that the cars went over the defendant's road to Ayer Junction, thence over the Nashua & Worcester Railroad to Worcester, and thence over the Providence & Worcester road to their depot in Providence; and that the defendant had no depot in Providence. He was then asked, by the defendant, if he had any authority to take such goods as this case contained. This question was objected to by the plaintiff, and excluded.

The plaintiff also put in evidence two letters to him, one from Rolfe, and the other from J. S. Lincoln, the general freight agent of the defendant. The letter from Rolfe, dated January 10, 1875, stated that the cars were not opened until they arrived in Providence; and that the writer was convinced that the case was somewhere between Providence and Philadelphia, or in Philadelphia. It also contained this sentence: "We, of course, have to account for the case, but would ask you to delay a short time longer, in order to give further opportunity to look for it." The letter from Lincoln, dated January 28, 1876, was as follows: "Your favor of 6th and 18th, relative to loss of a box from the shipment of your household goods, from Lawrence, Sept. 17th, is received. I have traced the line of roads from Lawrence to Providence, for this missing box, and am well satisfied it was delivered with the other goods to the Clyde Line at Providence; this freight left Lawrence 3.20 P. M. on the 17th of Sept., and was delivered to Clyde Line at 3 P. M. on the 18th, in season for the boat of that date, which was Saturday, and the goods were not forwarded until the next Wednesday, or the 22d, they remaining in the cars on the track, from the afternoon of the 18th, notwithstanding the tracer is indorsed by them 'no delay at Providence,' and I must respectfully refer you, for the adjustment of your claim, to the agent of the Clyde Line."

The defendant put in evidence tending to show that the cars were not opened between Lawrence and Worcester, or between Providence and the wharf of the Clyde Line at that place; but there was no evidence from any one who accompanied the cars from Worcester to Providence. The plaintiff made no claim to recover an amount exceeding $ 200.

The defendant asked the judge to rule as follows: "1. No notice or representation of the contents of the box claimed to be lost, nor any representation of the value of the oil painting contained in said box having been given to the defendant, and no special agreement for its transportation having been made, the defendant is not liable under the contract produced by the plaintiff. 2. Under the contract put in by the plaintiff, he cannot recover for the oil painting unless he made representation of its value, and without a special agreement assented to by the superintendent. 3. By the contract shown by the plaintiff, the defendant was not bound to deliver any of the goods mentioned in said contract...