Ketchum v. American Merchants Union Express Co.

• Decision Date: 31 March 1873
• Citation: 52 Mo. 390
• Parties: EWING C. KETCHUM &C., Respondent, v. THE AMERICAN MERCHANTS UNION EXPRESS COMPANY, Appellant.
• Court: Missouri Supreme Court

52 Mo. 390

EWING C. KETCHUM &C., Respondent,

v.THE AMERICAN MERCHANTS UNION EXPRESS COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Daniel Dillon, for Appellant.

I. Under the special contract defendant was not a common carrier as to this glass, but a private carrier for hire and responsible according to the terms of his contract. (Angell on Carriers, 54; Sunderland vs. Westcott, 2 Sweeny, [N. Y.,] 260; Dorr vs. N. J. Steam Nav. Co., 11 N. Y., 485; Meyer vs. Harnden's Exp. Co., 24 How. Pr., 290; Moore vs. Evans, 14 Barb., 529; French vs. Buff., N. Y. & E. R. R., 4 Keyes, 119; Nelson vs. H. R. R. R., 48 N. Y., 498; N. J. Steam Nav. Co. vs. Mer. B'k., 6 How., [U. S.] 382; York Co. vs. Central R. R., 3 Wall., 107; Farnham vs. C. & A. R. R., 55 Pa. St., 53; Colton vs. C. & P. R. R., 67 Pa. St., 211; Squire vs. N. Y. C. R. R., 98 Mass., 236; Groce vs. Adams, 100 Mass., 505; Lawrence vs. N. Y. P. & B. R. R., 36 Conn., 63; Wallace vs. Matthews, 39 Georgia, 617; Balt. & O. R. R. vs. Rathbone, 1 West V., 87; The Penin & O. Steam N. Co. vs. Shand, 3 Moore, Privy Council cases 272, New Series.)

II. A common carrier receiving goods under a special contract of this kind is liable for loss arising from his negligence only, and the burden of proof is on the owner to prove negligence. (Angell on Carriers, §§ 276, 473; Story on Bailments. 573; 2 Greenleaf, Ev. § 218; Bankord vs. Balt. & O. R. R., 34 Maryland, 197; Smith & M. vs. N. C. R. R., 64 North Car., 235; Sager vs. P. S. & P. R. R., 31 Me., 228; Adams Exp. Co., vs. Loeb & B., 7 Bush [Ky.] 499; Moore vs. Evans, 14 Barb., 524; French vs. B. N. Y. & E. R. R., 4 Keyes, 119; N. J. S. Nav. Co., vs. Mer. B'k., 6 How., U. S., 384; Clarke vs. Barnwell, 12 How., U. S., 280; Trans. Co. vs. Downer, 11 Wall., 129; Farnham vs. C. & A. R. R., 55 Pa. St., 53; Colton vs. C. & P. R. R., 67 Pa. St., 211; The Neptune, 6 Blatchf., 193; The Cleveland, 1 Newberry's Ad. R., 221; Ill. Cent. R. R. vs. Morrison, 19 Ill., 136; The Penin & O. S. N. Co. vs. Shand, 3 Moore. Privy Council, 272 New Series, 1865.)

William F. Causey, for Respondent.

I. A common carrier cannot exempt himself from losses caused by a neglect of that degree of care which the law casts upon him in his character of bailee. (Levering et al. vs. Union Transportation Co., 42 Mo., 88; Wolff vs. The American Express Co., 43 Mo., 421; Steele & Burgess vs. Townsend, 37 Ala. 247; Hill vs. Sturgeon & Rawlings, 28 Mo., 323; Davidson vs. Graham, 2 Ohio St. R., 131; Graham & Co. vs. Davis & Co., 4 Ohio St. R., 362; Michael vs. N. Y. Central R. R. Co., 30 New York, 564; School District in Midfield vs. Boston, Hartford & Erie R. R. Co., 102 Mass., 552; Penn. R. R. Co., vs. Butler, 57 Penn., 335.)

II. The law raises an absolute and conclusive presumption of negligence, whenever the loss occurs from any other cause than the “Act of God or the Public Enemy.” (Wolf vs. The American Express Co., 43 Mo., 421. Also the Authorities above cited.)

III. The Burden of Proof is on the defendant to show that the goods were not damaged by reason of any want of care, skill and diligence on the part of the defendant or its employees. And further, where there is a special Contract limiting the carriers' responsibility, the onus of showing not only the cause of the loss was within the terms of the exception, but also that there was no negligence, rests upon defendant. (Steele & Burgess vs. Townsend, 37 Alabama, 247; 2 Greenleaf §§ 219, 222; (Before cited,) 42 Mo., 88; Whiteside vs. Russell, 8 Watts & Sergeant 44; Parsons Contracts Vol. I, Third Edition pp. 692-3-4-5; Caldwell vs. The N. Jersey Steamboat Co., 47 N. Y. 282 Burnell vs. N. Y. Central R. R. Co. 45 N. Y. 185.)EWING, Judge, delivered the opinion of the court.

The petition alleged, that the defendant on the 7th day of June, 1870, was a common carrier, carrying goods, etc., from New York to St. Louis, and that on that day plaintiff delivered to defendant at the city of New York two boxes of plate glass to be safely and securely carried by defendant, as a common carrier, from New York to St. Louis, and there safely and securely delivered to plaintiff, for a reasonable reward, and that defendant not regarding its duty as a common carrier did not safely and securely carry the glass from New York to St. Louis, and did not safely and securely deliver it to plaintiff, but so negligently and carelessly acted in the premises, that by the negligence and carelessness and default of defendant the glass was broken to the damage of plaintiff, in $1500.

The answer denied the material allegations of the petition, and set up a further defense, substantially as follows; that by the bill of lading given when the goods were delivered to defendant for carriage, it was agreed between plaintiff and defendant that the glass was to be carried at owner's risk, and also, that by special contract executed by plaintiff and defendant at the same time, plaintiff for the consideration of one dollar and the further consideration, that defendant would carry the glass at usual tariff rates and without extra charge, released defendant for all loss or damage to the glass, while being carried from New York to St. Louis, and while in defendant's possession or care, and agreed to indemnify defendant against any claim made by any consignee of the glass for damage to the same while being transported and in defendant's possession or charge.

The replication denied the new matter set up in the answer.

At the trial a jury was waived, and an agreed statement of facts filed, which stated that at the time the glass was delivered to defendant in New York, plaintiff and defendant by their respective agents entered into and executed a special contract in reference to the carrying of this glass, which contract was filed and made a part of the agreed statement of facts; and at the same time defendant delivered the plaintiff the bill of lading filed and made a part of the agreed statement of facts; that the word “released” on said bill of lading means, that it was given and accepted by plaintiff subject to the terms of said contract; that the bulk of said boxes rendered it necessary, that they should be shipped in an open car, and they were transported in such cars; that the glass was transported from New York to East St. Louis by the usual and customary route, and and by the usual and customary means for transporting such freight, and was delivered to plaintiff at St. Louis on the 22nd day of June, 1870, and that plaintiff at the time the glass was delivered to him receipted for the same in good order as appeared by his receipts, which were filed and made a part of the ageed statement of facts, the legal effect of which was to be determined by the court; that defendant is usually engaged in the business of a common carrier and so is in this instance, unless stripped of that character by said contract and bill of lading. Then followed this clause in the agreed statement of facts; “In reference to all points not covered by the agreed statement of facts, either party is at liberty to introduce evidence at the hearing of this cause.”

The special contract alluded to states in substance, that in consideration of one dollar and that defendant would carry the glass at the usual tariff rates and without extra charge, that plaintiff released the defendant for all loss or damage to the glass, while being carried from New York to St. Louis and while in defendant's possession, and plaintiff agreed to indemnify and save harmless the defendant from all claims made by any consignee of said glass for loss or damage to the same while in defendant's possession or charge; the bill of lading stated that all...