Lewis v. Louisville & Nashville R. R. Co.

• Citation: 135 Ky. 361
• Parties: Lewis v. Louisville & Nashville R. R. Co.
• Decision Date: 10 November 1909
• Court: Kentucky Court of Appeals

135 Ky. 361

Lewis v. Louisville & Nashville R. R. Co.

Court of Appeals of Kentucky.

November 10, 1909.

Appeal from Bell Circuit Court.

M. J. Moss, Circuit Judge.

Judgment for defendant, plaintiff appeals. — Reversed.

JAS. H. JEFFRIES and N. R. PATTERSON for appellant.

BENJAMIN D. WARFIELD, CHAS. H. MOORMAN and C. N. METCALF for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Reversing.

The questions presented by this record are: When does the duty and liability of a common carrier of goods as a carrier cease upon the arrival of the goods at the point of destination, and when does its duty and liability as a warehouseman begin?

It is agreed that there was shipped to the appellant Lewis over the road of the appellee company to Pineville, Ky., three packages of goods that were in its warehouse at Pineville on the night of September 16th, when the building and its contents, including this freight, was destroyed by fire; that the fire commenced at a late hour on the night of the 16th, or an early hour on the morning of the 17th, and was not caused either directly or indirectly by the negligence, fraud, or wrong-doing of the company or any of its agents, servants, or employes; that at the time of the fire, and for some five years prior thereto, Lewis was engaged in selling goods as a merchant at a point some 25 miles distant by the nearest traveled route from Pineville; that during that time all of the goods and merchandise that he sold was delivered to him by the company at its Pineville station, and this fact was known to its agent at Pineville, who also knew where Lewis lived and his postoffice address; that two of the packages of merchandise destroyed reached Pineville on the 13th of September, and were placed in the company's warehouse on that day, and the other package destroyed was placed in the warehouse at noon on September 16th; that neither Lewis nor any one for him made inquiry about or called at the warehouse for the goods, nor was any notice of the arrival of the goods or any of them sent or given by mail or otherwise to Lewis, and he did not at the time of the fire have any knowledge or notice that the goods or any of them were in the warehouse.

It is further agreed that, on account of the heavy traffic on the road, it was impossible for Lewis to know with reasonable certainty when the goods which were shipped from distant points would reach Pineville, and that the goods in question were transported without unreasonable delay, although it appears that one shipment that left Louisville on August 28th did not reach Pineville until September 13th, while another package that left Louisville on September 14th reached Pineville on September 16th, and that the package that was sent from Knoxville, which is only about half the distance from Pineville that Louisville is, did not arrive at Pineville until September 13th, although it was shipped on September 6th. Upon these facts the trial court held as matter of law that the company was not liable.

There is really no contrariety of opinion as to the difference between the liability of a common carrier and the liability of a warehouseman; it being everywhere agreed that a common carrier is an insurer of the freight delivered to it for carriage, and can only escape liability for loss or damage to the goods by showing that the loss or damage was caused by the act of God, or the public enemy, or by inherent defects in the goods. It is equally as well established that a warehouseman is not an insurer of goods placed in his warehouse, and is only liable for such loss or damage to the goods as is caused by his negligence or failure to exercise ordinary care.

From these rules it will be seen that, if the goods in controversy were in the custody of the company as a common carrier at the time of their destruction, it would nevertheless be liable for their value; while if they were in its custody as a warehouseman, it would not be liable, as the loss was not occasioned by its fault or negligence. Although the liability of a carrier and that of a warehouseman is well defined, and the distinction between them in this respect clearly pointed out in all the authorities, there is wide and irreconcilable conflict concerning when the liability of a common carrier as a common carrier ceases, and its liability as a warehouseman begins. In Massachusetts and other states the rule is that when the carrier has delivered the goods at the point of destination, removed them from its cars and placed them in its warehouse, its liability as a carrier immediately ceases, and thereafter it holds the goods as a warehouseman. In New Hampshire and other jurisdictions the rule is that the carrier continues liable as a carrier after the goods have reached their destination and have been placed in the warehouse, and for a reasonable time thereafter, in which time the consignee must remove them or otherwise the carrier will hold them as a warehouseman. While the Supreme Court of New York and other state courts of last resort hold that unless the consignee is present when the goods arrive, he must be notified of their arrival and have a reasonable time after notice in which to remove them before the liability of the carrier as a carrier ceases. Hutchinson on Carriers (3d. Ed.) Secs. 701, 710; Elliott on Railroads (2d Ed.) Sec. 1527; note to Denver, &c. R. Co. v. Peterson, 97 Am. St. Rep. 76; East Tenn., etc., R. Co. v. Kelly, 91 Tenn., 699, 20 S. W. 312, 17 L. R. A. 691, 30 Am. St. Rep. 902.

In this state we have no statute on the subject, but the question we are considering has been before this court in three cases. In Louisville, C. & L. R. Co. v. Mahan, 8 Bush, 184, and Wald & Co. v. Louisville, etc., R. Co., 92 Ky. 645, 18 S. W. 850, 13 Ky. Law Rep. 850, the point involved was what constituted a reasonable time in which a passenger might remove from the depot the baggage that came on the train with him. In Jeffersonville R. Co. v. Cleveland 2 Bush, 468, the question presented was in many respects like the one now before us, and the court in delivering the opinion followed what may be called the New Hampshire rule. In that case suit was brought to recover the value of goods shipped by freight and destroyed by fire on the night of April 26th, while they were in the warehouse of the carrier at the place of destination. The goods in the ordinary course of transportation should have arrived on the 20th, but on account of delays, they did not arrive until the evening of the 25th; and the owner inquired at the warehouse for them on each day from the 20th to and including the morning of the 25th. On the morning of the 26th a notice to the owner of the fact that his goods had arrived, was deposited in the post office, but not received.

In the course of the opinion the court said: "Whether the responsibility of the company, after the arrival and storage of the goods in Detroit, was that devolved by law on carriers or only that of depositaries, it was not necessary in our opinion that the company should either give notice of the arrival of the goods or make actual delivery of them, as is now done by express companies, in order that the liability of carriers should cease after reasonable time had elapsed for the owner to attend and remove the goods. * * * But the liability of railroad corporations as common carriers for goods transported on their railroads continues until the goods are ready to be delivered at their place of destination, and the owner or consignee has had reasonable opportunity of receiving and removing them. * * * What such reasonable time should be must in the nature of the case when not provided for by express contract depend on the character of the freight, the distance to which it is to be carried, and the capacity and business of the road, with such other circumstances as would serve to notify the consignee of the probable time when the goods would reach their destination, so that, with proper watchfulness, he might receive them, and thus terminate the carrier's responsibility as soon as practicable."

Upon the facts stated, the court held the owner did not have a reasonable time in which to remove the goods after their arrival, and that the carrier at the time of their destruction was holding them as a carrier and hence liable. The liability was put upon the ground that the owner had exercised reasonable diligence to ascertain when the goods would arrive, and, as their arrival was delayed several days after the time when they should have reached their destination, the owner was not obliged to continue his inquiries as to when they would come, and the notice was not sufficient to enable him by reasonable diligence to remove the goods during the day on...