Mckahan v. American Exp. Co.
| Decision Date | 19 June 1911 |
| Parties | McKAHAN et al. v. AMERICAN EXPRESS CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Hale & Dickerman and E. R. Anderson, for plaintiffs.
A. M Pinkham, for defendant.
This is an action for damages to horses carried by the defendant from La Fontaine, Ind., to Boston in this commonwealth. The plaintiff had signed an agreement extending to 36 hours the time during which the horses could be carried without unloading. But they were carried for 44 hours and the damage done to them was caused by that. The defendant admitted its liability and defended on the ground that by the terms of its contract with the plaintiff it was liable for $12.50 only.
It is stated on the face of the contract that the shipper was offered alternative rates to be charged for the carriage of the horses proportioned to their value (such value to be fixed and declared by the shipper), which rates were stated in the tariff also stated on the face of the contract. It is further stated on the face of the contract that for the purpose of availing himself of the alternative rates to be charged for the carriage of the horses here in question the plaintiff had declared the value of them to be $75 each. Not only did it appear that the rate was based on each horse being valued at $75, but in addition the following clause was contained in the agreement: 'The shipper hereby releases and discharges the express company from all liability for delay, injuries to or loss of said animals from any cause whatever, unless such delay, injury or loss shall be caused by the negligence of the agents or employés of the express company, and in such event the express company shall be liable only to the extent of actual damage to the animal or animals injured, which shall in no event exceed the sum herein declared by the shipper to be the value thereof; and for the purpose of ascertaining or assessing such damage, whether the same be a total or a partial loss, the value of said animals as herein declared by the shipper shall be conclusively deemed to be the true value thereof.' It was provided by the contract that 'the shipper agrees * * * to cause the necessary attendants to accompany and take charge of said animals, the express company furnishing free transportation for the attendants who have signed the attendant's contract appended hereto.'
When the car containing the horses in question arrived at Buffalo the agent of the express company told the attendant that the train on which the horses naturally would go to Albany was 'heavily loaded,' and that they wished to put the car on the 'Limited' which was 'running light that day.' The defendant's agent also told the attendant that if that was done he, the attendant, would have to pay a fare to Albany and that at Albany the car containing the horses would be put on the usual train for Boston. The attendant said that he would not pay the extra fare and insisted upon the car going on the usual train. Against his protest and without his knowledge the car was put on the 'Limited' train and he took the usual train. The usual train was late in getting into Albany and had not arrived when the time came for the train from Albany to Boston to start. Although the attendant had not arrived the horses were sent forward on the usual train to Boston and arrived at Boston in the night at an hour not stated in the report. The attendant arrived in Boston at about 5 o'clock in the morning and found the horses still in the car. He succeeded in having them unloaded between 7 and 8 o'clock. Although the report does not state the hour when the horses arrived, it does appear that they were unloaded 8 hours after the expiration of the 36 hours to which the plaintiff had extended the time for their carriage without unloading. The plaintiffs' evidence showed 'that the cause of the injury to the horses was their detention in the cars without being fed or watered from the time they left La Fontaine, Ind., between 11 and 12 o'clock on Saturday until the following Monday morning,' and this must be taken to have been admitted by the defendant's admission of its liability.
It is settled as matter of authority that a deviation by a carrier from the route described in a contract of shipment makes him liable as an insurer of the goods shipped although the contract of shipment exempts him from liability under the circumstances (apart from the deviation) under which the goods were lost or damaged. Waltham Manuf. Co. v. New York & Texas Steamship Co., 204 Mass. 253, 90 N.E. 500; Davis v. Garrett, 6 Bing. 716; Joseph Thorley Co., Ltd., v. Orchis Steamship Co., Ltd. [1907] 1 K. B. 660; Hostetter v. Park, 137 U.S. 30, 40, 11 S.Ct. 1, 34 L.Ed. 568; Constable v. National Steamship Co., 154 U.S. 51, 66, 14 S.Ct. 1062, 38 L.Ed. 903; Maghee v. Camden & Amboy R. R., 45 N.Y. 514, 6 Am. Rep. 124; Hand v. Baynes, 4 Whart. (Pa.) 204, 33 Am. Dec. 54; Crosby v. Fitch, 12 Conn, 410, 31 Am. Dec. 745; Georgia R. R. v. Cole, 68 Ga. 623; Phillips v. Brigham, 26 Ga. 617, 71 Am. Dec. 237.
It is further settled as matter of authority that the same is true where there has been a departure from the method (including mode and manner) of transportation agreed upon. In Goodrich v. Thompson, 44 N.Y. 324, another steamship was substituted for the one agreed upon. See, also, in this connection, Robertson v. National Steamship Co., 139 N.Y. 416, 419, 34 N.E. 1053; Dunseth v. Wade, 2 Scam. (Ill.) 285, 289. The goods in question in Robinson v. Merchants' Despatch Transportation Co., 45 Iowa, 470, and in Stewart v. Merchants' Despatch Transportation Co., 47 Iowa, 229, 29 Am. Rep. 476, were shipped to be carried through in the same car, but were unloaded and put into a warehouse during transit and there burned. The carrier was held liable although by the contract he was exempt from loss by fire. Galveston, etc., Ry. v. Allison, 59 Tex. 193, was the case of a similar shipment. There the goods shipped were melons injured by heat and decay from which the contract exempted the carrier from liability. But the melons had been transferred into other cars, and for that reason the carrier was held liable. In Merrick v. Webster, 3 Mich. 268, the goods were shipped to be carried 'by sail on the lake,' under a contract which exempted the carrier from loss from all dangers of the lakes. The goods were carried on a steamship, were lost in a collision and the carrier was held liable. In Hunnewell v. Taber, 2 Spr. 1, Fed. Cas. No. 6,880, the goods shipped consisted of oil in casks. The carrier agreed that the oil was 'to be wet twice a week,' and the shipper agreed that the carrier should 'not [be] accountable for leakage.' The oil not having been wet it was held that he was liable. For a similar case see Grand Trunk Ry. v. Fitzgerald, 5 Canada, S. C. 208. And see in this connection Hastings v. Pepper, 11 Pick. (Mass.) 41.
This principle has been applied in England in two cases ( Sleat v. Flagg, 5 B. & Ald. 342; Balian v. Joly, Victoria & Co., 6 T. L. R. 345) to make a carrier liable for the actual value of the goods shipped in spite of a stipulation in his contract with the shipper that the value should not be taken to exceed a sum therein named. Sleat v. Flagg was a case where the goods were shipped to go by one mail coach and in fact were sent by another. Balian v. John, Victoria & Co. was a case where goods shipped for carriage from Lagos in Thessaly to London in the Mabel were in fact carried to Smyrna in the Mabel, there transferred to a Cunard steamship, carried in her to Liverpool and from Liverpool to London by rail.
The simplest class of cases in which it has been held that a deviation from route or a departure from method of transportation prevents the carrier from setting up a clause in the contract between him and the shipper exempting him from liability under the circumstances under which the goods were lost or damaged, are those where the deviation or departure was the proximate cause of the loss. Such was the case in Hand v. Baynes, 4 Whart. (Pa.) 204, 33 Am Dec. 54, where the goods were shipped from Philadelphia to...
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