Grindle v. Eastern Express Co.

• Decision Date: 28 December 1877
• Citation: 67 Me. 317
• Parties: JAMES GRINDLE, administrator, v. EASTERN EXPRESS COMPANY.
• Court: Maine Supreme Court

67 Me. 317

JAMES GRINDLE, administrator, v. EASTERN EXPRESS COMPANY.

Supreme Judicial Court of Maine.

December 28, 1877

CASE for negligence, brought by the plaintiff as administrator of the estate of Emery R. Wardwell against the defendant company for negligence in forwarding the sum of $24.90 which was delivered to one Charles W. Tilden, agent of the defendants at Castine, May 8, 1873, to be forwarded to F. H. Beale at Belfast, Maine, agent of the Continental Life Insurance Company of the city of New York. The said sum of $24.90 was for the semiannual premium due April 15, 1873, to be paid according to the regulations of the said company within thirty days of that date. It is alleged by the plaintiff:

That said sum of $24.90 was not forwarded and delivered to the said F. H. Beale, but was delayed by the defendants from May 8, 1873, until September 8, 1874, and in consequence of said delay, said life insurance policy lapsed and became void.

That said policy was dated and sealed April 15, 1870, by which said insurance company " do assure the life of Emery R Wardwell of Penobscot, in the county of Hancock, state of Maine, for the sole use of Emery R. Wardwell in the amount of one thousand dollars, for the term of sixteen years from the date of this policy or until his decease, in case of his death before that time. And the said company do hereby covenant and agree to and with said assured, well and truly to pay or cause to be paid the said sum insured to the said assured within ninety days after the said Emery R. Wardwell shall have been insured for sixteen years as aforesaid, or in case he should die before that time, then to Edna N. Wardwell (wife) if living, otherwise to the legal representatives of the said assured, within ninety days after due notice and satisfactory evidence of his death."

That August 22, 1874, the said Emery R. Wardwell lost his life by drowning, whereby as the plaintiff alleges, the said Continental Life Insurance Company would have been liable to pay and would have paid said sum of $1000, to the estate of said Emery R. Wardwell, if said policy had not lapsed and become void by nonpayment to said company of said semi-annual premium due within thirty days from said 15th day of April 1873.

The following is a copy of the receipt given by the agent of the defendant company at the time the money was delivered:

" Eastern Express Company. Castine, May 8, 1873. Received of E. R. Wardwell, twenty four 90-100 dollars directed F. H. Beale, agent, Belfast, which the Eastern Express Company agree to forward and deliver at destination if within their route, and if not, to the connecting express, stage or other means of conveyance, at the most convenient point, and to be responsible for such delivery to the amount of fifty dollars only, unless value is stated above. It is further agreed that they shall not be held responsible for any loss occasioned by fire or the dangers of railroad, steam or river navigation, or for the breakage of glass or other fragile goods, or for money put inside of a box or bundle. For the Eastern Express Co. (Signed) C. W. Tilden."

The plaintiff claims that at the time the money was delivered to Tilden, Tilden was informed and knew for what purpose it was sent to Beale. This claim the defendants deny and they also claim that on the next day after receipt of the money they delivered the same to the usual means of conveyance between Castine and Belfast for transportation to Belfast.

The following questions are submitted for the consideration of the court.

1st. Is an action on the case for negligence the proper form of action?

2nd. Should the action have been brought in the name of the administrator of Emery R. Wardwell's estate, or in the name of Edna N. Wardwell, the widow?

3d. If case is the proper remedy, and the action is correctly brought in the name of the administrator and the action is maintainable on the facts as claimed by the plaintiff, what would be the measure of damages against the express company?

4th. If the money was on the next day after its receipt delivered to the usual means of conveyance, and was afterwards lost or missing, can the defendants be held in any form of action?

If the action is not maintainable by reason of form of said action or by reason of its being brought in the name of the administrator and no amendment can be allowed, then a nonsuit is to be entered. Otherwise the action shall stand for trial.

A. Wiswell & A. P. Wiswell, for the plaintiff.

F. A. Wilson & C. F. Woodard, for the defendants.

VIRGIN J.

On April 15, 1870, the Continental Life Insurance Company assured the life of the plaintiff's intestate for his sole use, in the sum of one thousand dollars, for the term of sixteen years or until his decease in case of his death before that time; and the company, by their policy under seal, of that date, did covenant with the assured, to pay him the sum insured within ninety days after he shall have been insured the term mentioned, or in case he should die before that time, then to his wife Edna, if living, otherwise to the legal representatives of the assured.

Being an endowment policy for sixteen years, it was primarily intended to be for the benefit of the assured himself. And being a covenant under seal, no one but the assured or his legal representative could maintain an action upon it, he being the only party in whom the legal interest was vested. Hinkley v. Fowler, 15 Me. 285. Flynn v. North Am. L. Ins. Co., 115 Mass. 449.

This is not an action against the insurance company for a breach of any covenant contained in the policy; but an action on the case against the defendants as common carriers of goods, for an alleged violation of their duty in failing to seasonably deliver to one Beale, of Belfast, agent of the insurance company, a certain sum of money sent through them by the plaintiff's intestate on May 8, 1873, for the purpose of paying his semi-annual premium due on his policy May 15, 1873.

The defendants do not deny their receipt of the money in the capacity mentioned. Being such carriers, and their general obligation depending upon their public profession ( Johnson v. Midland Railway Co., 4 Exch. 367,) they were bound, in the absence of any special agreement, to receive the money and carry and deliver it, within a reasonable time, at whatever place directed within the route which they hold out to the public as theirs, and no further. There, their common law liability ceases. Perkins v. Portland, S. & P. Railroad, 47 Me. 573, 589. Hales v. London, & N. W. Railway, 4 B. & S. Q. B. 66, (116 E. C. L. R.) They might contract to carry further to any point beyond their regular line; or might simply undertake to deliver to a connecting carrier; in which latter event their liability would cease with a safe carriage and prompt delivery; for they would then have done all the law and all their contract required. Perkins v. Portland S. & P. Railroad, supra. Skinner v. Hall, 60 Me. 477. Plantation No. 4 v. Hall, 61 Me. 517.

The proof of a contract for carriage beyond their route should be clear. Nutting v Conn. Railroad, 1 Gray 502. But it may be express or by implication; by direct or circumstantial evidence; by words, conduct or usage. Gray v. Jackson, 51 N. H., 9, 11. Knapp v. U. S. & Can. Exp. Co., 55 N.H. 348, and cases supra. Receiving goods marked or directed to some point beyond their regular route is not sufficient evidence of an implied contract to carry them to that place. Pendergast v. Adams Exp. Co., 101 Mass. 120. Where the consignor accepts a special contract, it is no answer that he did not know its terms; for in the absence of fraud, imposition or deceit, he is conclusively presumed to understand its terms and legal effect. Squire v. N. Y. Cen. Railroad, 98 Mass. 239. Grace v. Adams, 100 M ss. 505. Belger v. Dinsmore, 51 N.Y. 166. Snider v. Adams Exp. Co., 4 Cen. L. J. 175.

The defendants claim that Belfast is not within their route; that they made no contract, and neither by conduct nor usage created any obligation to deliver the money outside of their route; that Castine is the most convenient point on their line whence public communication is had with Belfast, and that they delivered the money the next day after its receipt to the usual means of conveyance between Castine and Belfast. If these facts appear at the trial, they will constitute a good defense. Any special contract in the premises must be shown by the plaintiff.

II. By the terms of the report, if the action is maintainable on the facts as claimed by the plaintiff, what is the measure of damages against the express company? " The plaintiff claims that at the time the money was delivered to the defendants' agent, he was informed and knew for what purpose it was sent to Beale."

Upon this hypothesis we are of the opinion that primarily the defendants would be liable for the net value of the policy on May 15, when it lapsed and became void, qualified as hereinafter mentioned. It had a surrender value which the company would have paid. It could have been assigned by the consent of all concerned. Then the assured--for whose sole benefit it was primarily issued-- was alive. The wife was no party to it. She simply had an equitable interest therein depending upon the contingency of her husband's decease prior to May 15, 1886, and the seasonable payment of the semi-annual premiums to the date of his death. When the policy lapsed, the contingency of his death had not occurred, and the assured alone was injured.

The general rule of damages in an action on the case against a common carrier for the non-delivery of goods is their value when and where they should have been delivered, with interest thereon from that date; and if money be the...