Hutchinson v. United States Express Co.
| Decision Date | 10 December 1907 |
| Citation | 63 W.Va. 128 |
| Court | West Virginia Supreme Court |
| Parties | Hutchinson v. United States Express Company. |
1, Carriers Express Company Liabilities.
Being common carriers, and, as such, insurers of property entrusted to them for shipment, express companies are liable as insurers until after they have performed all that the law or the special contract of shipment lifts enjoined upon them. (p. 131.)
2. Same.
Such insurance is not primary or special in its nature, but only incidental to the contract of carriage and neither begins earlier nor continues longer than is necessary to secure faithful and efficient execution of the contract of carriage, (p 132.)
3 Same Delivery,
Ordinarily, an express company must make delivery of goods or packages, carried by it, to the consignee in person at his place of business or residence, or to some person authorized to receive the same, before its liability as a common carrier and insurer thereof ceases, (p. 133.)
4. Same Special Agreement.
But the general rule, respecting the place and mode of delivery, may be modified or set aside by usage or special agreement, under which delivery may be made at the express office or agency; and the duty of the carrier in the premises is then measured by the usage or custom or the terms of the special agreement, (p. 133.)
5. Same Notice of Arrival.
Liability as carrier for a package carried to a point at which the established practice is, to make deliveries at the express office or wareroom, on application for the goods, pursuant to notice of their arrival, given by mail, does not terminate until a reasonable time, allowed for removal after the giving of the notice, has elapsed, (p. 133.)
6. Same Failure to Give Notice.
If the duty to give such notice be omitted and the goods are lost by reason of a cause, other than one of those for which the law makes an exception in favor of the carrier, such as an act of God, or the like, the carrier is generally held to accountability as an insurer, (p. 134.)
7. Same Liability as Warehouseman Loss of Package Liability.
But, if failure to mail the notice, when such is the adopted mode of giving it, is not the proximate cause of the delay in removing the package, and the loss would^have occurred if it had been mailed, and sufficient time has elapsed for the receipt thereof and removal of the goods, if one had been mailed, and the consignee had exercised reasonable diligence, the carrier is liable as warehouseman only. (p. 135.)
8. Same Notice.
A consignee who did not call for his mail and would not have received notice of the arrival of his package at an express office, at which deliveries are made only at the office after notice by mail,.cannot hold an express company liable as carrier, for a package which arrived at 4:30 P. m. on Saturday and remained in the office until the following Monday night, when it was stolen, without fauit or negligence on the part of the company, (p. 136.)
1). Trial Demurrer to Evidence.
When the practice, on the part of an express company at a particular office thereof, to make deliveries only at the office after mailing notice of arrival of packages, is not controverted, and the plaintiff testifies to such practice, respecting consignments to himself, his testimony affords sufficient ground, in the evidence, for an inference that the usage exists, to take the case from the jury, as to that question, by a demurrer to evidence, (p. 138.)
10. Warehouseman Negligence.
The fact that a building in which a warehouseman stores goods is not burglar-proof, is not evidence of negligence on his part, in an action against him for their loss by theft, (p. 138.)
11. Carriers Loss of Goods Negligence.
Leaving an express package in the freight room of a railway station, at which the express office is maintained, instead of in a room thereof in which such packages are usually placed, neither continues or extends liability as carrier, nor amounts to negligence as warehouseman, (p. 138.)
Error to Circuit Court, Braxton County.
Action by II. B. Hutchinson against the United States Express Company. Judgment for defendant, and plaintiff brings error.
Affirmed.
Hall Brothers, for plaintiff in error. Haymond & Fox, for defendant in error.
in an action pending in the circuit court of Braxton county, on appeal from a judgment of a justice's court, in which II. B. Hutchinson was plaintiff and the United States Express Company defendant, for the recovery of $128.60, the value of a package of furs, stolen from the express company, a demurrer to the evidence was sustained and judgment rendered for the defendant, of which Hutchinson complains here.
Hutchinson, a dealer in furs for a number of years, residing in the vicinity of Cogar, a town in Braxton county, frequently, if not generally, sent out through the country one or more buyers who bought furs at such prices as could be agreed upon and turned them over to him at certain fixed prices, retaining the difference as compensation for the service. These buyers graded the pelts according to quality and shipped them by express to him at Cogar, and if the packages so shipped were small and of little value, he took them from the express office, but if they were of considerable size, he regraded and repacked them for the market and consigned them to a dealer in New York, without removing them from the express office premises. Deliveries were never, made to him by the express company, but it was the practice to notify him by mail of the arrival of packages. The furs for the value of which this action was brought had been collected by B. F. Blake, who resided on Hutchinson's farm, and by him delivered to the express messenger on the train at a place called Carl Siding, on Saturday, February 4, 1905, consigned to Hutchinson at Cogar. Blake took passage on the same train for the same place,.and, on alighting from the train at Cogar, saw the package of furs. This was after 4 o'clock, P. M., of that day. No notice of the arrival of the package was given to Hutchinson by the express company and he knew nothing of it, until late Monday evening, February 6th, when Blake came to his house and informed him of the fact. Had notice been given him by mail, it would probably have been received at about the same time. That Monday was a bad stormy day, the ground being covered with a heavy, soft, melting snow, and the stream lying between Hutchinson's place and Cogar somewhat swollen. He probably would not have called for the package on that day, had he been aware of its arrival. On the next day, he and Blake together went to Cogar and found that, on the preceding night, the railway station in which the express office was, and in the freight room of which the package had been left, had been burglarized and the package stolen. It further appears from the testimony of Hutchinson himself that, had he found the package there, he would not have taken it away, but would have regraded it and immediately shipped it to New York, it being one of considerable size and value.
Whether, at the time the package was taken, it was in the hands of the express company as common carrier, or merely as warehouseman, is a question of the gravest importance. A common carrier is exempted from liability for loss of goods, entrusted to it for carriage, in only a few instances, and, subject to these exceptions, it is an insurer of them to the extent ot their value. Ordinarily, it can be relieved only on the ground of loss or damage by act of God, vis major or inevitable accident. These are things against which prudence and care cannot avail, and, for that reason, the law exonerates common carriers from liability for loss attributable to them. Moore on Common Carriers pp. 219, 221, inclusive; Hutchinson on Carriers section 265; 6 Cyc. 376, 377; 5 Am. & Eng. Ency. Law 233. The exceptions are classified by Hutchinson as follows: (1) Those arising from what is known as the act of God; (2) those caused by the public enemy; (3) those arising from the act of the public authority; (1) those arising from the act of the shipper; and (5) those arising from the inherent nature of the goods. Loss by theft or robbery is not within any of these exceptions. "The common law liability of a com- mon carrier, as an insurer of goods carried, did not extend to losses caused by the acts of public enemies; and the term enemies was understood to mean the public enemies of the country of the carrier, and not of the owner of the goods, and did not include thieves, robbers, or those engaged in mobs, riots or insurrections." Moore on Common Carriers 225; Hutchinson on Carriers, section 316. A much lighter degree of responsibility rests upon the carrier, after the function of carriage is deemed by the law to have been completed, and its relation to the property and the owner thereof, has assumed the character of that of mere custodian. After the goods have reached their destination and the lapse of a reasonable time, within which the owner is expected to remove them, the carrier's liability respecting them is measured by the legal principles applicable to warehousemen. Under these principles, a loss not clue to the negligence of the custodian or his failure to exercise such care and diligence for their safety, as an ordinarily prudent person would bestow upon his own property, is excusable. He is not an insurer, and not liable for loss by robbery or theft, if he has not contributed to it by negligence. Berry v. Railroad Co., 44 W. Va. 538; Hutchinson on Carriers section 685: Moore on Common Carriers 181. These are general principles more directly applicable to such carriers as railway companies and steamship lines, which, ordinarily, do not make deliveries to the consignees, but, on the arrival of the goods at the points of destination, store them in warehouses until called for. But the law of warehousemen sometimes governs the duty, rights and liabilities of...
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