P. Garvan, Inc. v. New York Cent. & H.R.R. Co.

• Decision Date: 29 November 1911
• Citation: 210 Mass. 275,96 N.E. 717
• Parties: P. GARVAN, Inc. v. NEW YORK CENT. & H. R. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

210 Mass. 275

96 N.E. 717

P. GARVAN, Inc. v. NEW YORK CENT. & H. R. R. CO.

Supreme Judicial Court of Massachusetts, Hampden.

November 29, 1911

COUNSEL

Green & Bennett, for plaintiff.

Geo. H Fernald, Jr., and Frank L. Watson, for defendant.

OPINION

BRALEY J.

The bill of lading by its terms regulated the entire transportation and not having been limited to the first carrier by whom the bales of rags were received and accepted with the through rate prepaid, the defendant as the succeeding and last carrier is entitled to the benefit of the exemptions found in the contract. Farmington Mercantile Co. v. Chicago, Burlington & Quincy R. Co., 166 Mass 154, 44 N.E. 131; Moore v. N. Y., N.H. & H. R. Co., 173 Mass. 335, 53 N.E. 816, 73 Am. St. Rep. 298; Adams Express Co. v. Harris, 120 Ind. 73, 21 N.E. 340, 7 L. R A. 214, 16 Am. St. Rep. 315; AEtna Ins. Co. v. Wheeler, 49 N.Y. 616; Cote v. N. Y., N.H. & H. R. R., 182 Mass. 290, 65 N.E. 400, 94 Am. St. Rep. 656; Evansville & Crawfordsville R. Co. v. Androscoggin Mills, 22 Wall. 594, 22 L.Ed. 724.

And it having been stipulated that the carrier should not be liable for any loss or damage 'by fire from any cause wheresoever occurring' during the transit, the defendant relies upon this exemption in bar of the action. It has long been settled that while just and reasonable conditions may be imposed, limiting his liability as it existed at common law the carrier cannot be relieved, where goods are lost or destroyed during carriage through his own negligence or the negligence of his servants or agents although in terms the contract of shipment may exonerate him. The stipulation is invalid because against public policy. Hoadley v. Northern Transportation Co., 115 Mass. 304, 15 Am. Rep. 106; Cox v. Central Vermont R. Co., 170 Mass. 129, 136, 137, 49 N.E. 97; Bernard v. Adams Express Co., 205 Mass. 254, 258, 259, 91 N.E. 325, 38 L. R. A. (N. S.) 293. The plaintiff under the second count was required to prove that the fire which partially destroyed the rags while they were in the car at the place of destination, occurred through the defendant's neglect. Willett v. Rich, 142 Mass. 356, 7 N.E. 776, 56 Am. Rep. 684; Wylie v. Marinofsky, 20§ Mass. 583, 88 N.E. 448. When shipped, the goods were incased in burlap, and in good condition; and there was no delay during the short period of transportation. The condition of the seals on the car doors which upon conflicting evidence the jury could find remained unbroken excluded any inference of the intrusion of strangers, and upon all the evidence it was for them to determine, whether the only reasonable explanation as to the origin of the fire inculpated the defendant's servants, for whose carelessness it would be responsible. Stowe v. New York, Boston & Providence R. Co., 113 Mass. 521, 524. The exclusion of the report of investigation as to the origin of the fire conducted under the provisions of St. 1894, c. 444, and Rev. Laws, c. 32, § 2, as amended by St. 1902, c. 142, St. 1903, c. 365, and St. 1904, c. 433, offered by the defendant, might be sustained on the narrow ground, that no prejudice is shown to have been suffered. What the record would have disclosed, if admitted, is not stated. Lee v. Tarplin, 183 Mass. 52, 54, 66 N.E. 431.

But even on the assumption that the defendant had been exonerated, the report was irrelevant. The proceedings were instituted for the information and benefit of the public and as an aid in the detection and punishment of crime. It was not an inquiry for the ascertainment of the defendant's civil liability, where the plaintiff could have appeared and been heard. Fogg v. Pew, 10 Gray, 409, 71 Am. Dec. 662; McMahon v. Tyng, 14 Allen, 167; Com. v. Cannon, 97 Mass. 351.

Nor had the defendant become a warehouseman. The defendant's rule for the delivery of goods at the station, required that the consignee should be notified of their arrival, but no notice having been given until after the fire when acceptance was refused by the consignee, there was no delivery, even if the defendant had shown that the car had been detached and placed where it could have been unloaded. Bachant v. B. & M. R. R., 187 Mass. 392, 393, 73 N.E. 642, 105 Am. St. Rep. 408. The fifth clause of the contract which the defendant invoked being inapplicable, as the fire occurred within less than 24 hours after the goods arrived, the defendant's liability as carrier had not terminated. Rice v. Boston & Worcester R. R., 98 Mass. 212; Rice v. Hart, 118 Mass. 201, 19 Am. Rep. 433.

But if these defenses are unavailing, the refusal to give the defendant's requests that the plaintiff had parted with the title is strongly urged as ground for a new trial. The action if in tort where goods are lost or damaged, must be brought by the owner, although the ownership need not be absolute but may be that of a bailee. Finn v. Western R. R., 112 Mass. 524, 530, 17 Am. Rep. 128. It was said by Mr. Justice Colt in Wigton v. Bowley, 130 Mass. 252, 254, that 'in the sale of specific chattels an unconditional delivery to the buyer or his agent or to a common carrier consigned to him, * * * is sufficient to pass the title if there is nothing to control the effect of it.'

But the intention of the parties as to the time when title is to be transferred must be ascertained from the contract, and in the absence of any directions from the buyer, controls any presumption, that delivery to a carrier is sufficient, even if in the bill of lading the goods are consigned to him. Dr. A. P. Sawyer Medicine Co. v. Johnson, 178 Mass 374, 377, 59 N.E. 1022; Barrie v. Quinby, 206 Mass. 259, 267, 92 N.E. 451; Dows v. national Exchange Bank of Milwaukee, 91 U.S. 618, 23 L.Ed. 214; Dunlap v. Lambert, 6 Clark & ...