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Read et al. v Spaulding.

Chains, boxed, dou

ble 1st class rate., cts. per 100 lbs. Carriages, boxed, if

1st class rate.... cts. per 100 lbs. Wagons, single cts. per 100 lbs. Pianos, owner's risk cts. per 100 lbs. Baskets, double first class rate........

cts. per 100 lbs. Cradles,

cts. per 100 lbs. Sleighs, boxed, 1} 1st class rate..... cts.

per

100 lbs. Toys, boxed, 11 first

of goods marked by initials, or for wrong carriage of goods that are imperfectly marked. And in case of loss or damage of any of the Goods named in this Bill of Lading for which Spaulding's Express may be liable, it is agreed and understood that they shall have the benefit of any insurance effected by or for account of the owner on said goods, and in case of less on the Lakes, the 'freight and charges to or at Buffalo shall be paid by the owner of said goods. In witness whereof, the Agent hath affirmed to 3 Bills of Lading, all of this tenor and date, one of which being accomplished the other to stand void.

class rate ....... cts. per 100 lbs. Wagon, toy, double

first class rate cts. per 100 lbs.

M. B. SPAULDING, Agent. V. W.

“That the five damaged cases reached Albany on the 7th of February, 1857, and four of these were forwarded from Albany and reached Louisville on the 14th of March, then next.

“That the fifth case left Albany on 21st April, 1857, and reached Louisville on the 6th of May then next.

“That the goods in question were damaged at depot 'D.' by water, on the night of the 8th and morning of the 9th of February, 1857, to the amount, including interest, of $681.83. Albany, by the route of the Harlem Railroad, is 160 miles from New York city, and freight cars were running on that road from New York to Albany, daily.

“That on the night and morning aforesaid, there was a heavy flood in the Hudson river, the water suddenly rising during the night and morning, some four feet higher than it had ever risen before, and that by said flood the goods were wet and damaged as aforesaid.

“That depot 'D' was constructed with its floor at such an elevation above high water mark as would not injure goods on it, by water, from any flood such as had ever before occurred at Albany.

"There was no negligence or omission of duty on the part of the defendant in not anticipating the occurrence of flood; and from the time it was apparent there would be a rise of water, the goods could not have been prevented from being wet as they were. The goods so wet and damaged were in five cases. The damages on the goods in four cases amount, exclusive of interest,

Read et al. v. Spaulding.

to $178.69-100, and the damages on the fifth case, marked No. 184, amount to $438.88-100, without interest. The fifth case, No. 184, contained 17 packages, consisting of wooden boxes, each closed up and holding goods. The case containing these 17 packages was in a rough box, having openings wide enough to insert one finger, and through which the packages could be seen. Interest may be computed from the 10th of February, 1857, on such sums as the plaintiffs are entitled to recover.

"It also appeared in evidence that the said 8th of February was on Sunday, and that the said five cases of goods were brought from the depot of the Western Railroad to the depot of the New York Central Railroad, on Saturday, the 7th, and according to the custom of business, were placed in depot 'D' to be forwarded.

" It also appeared in evidence that the average time occupied in the carriage of goods from the city of New York to Louisville, Ky., was about 15 days; and that the defendant had no interest in or control over any of the routes or railroads men. tioned in said bill of lading over which said goods were transported.

"The counsel for the defendant then moved the Court to nonsuit the plaintiff upon each of the following grounds:

"1st. That from the evidence the defendant was not a common carrier, but a forwarder merely, and having well discharged his duty in that character, was not liable in this action.

“2d. That by the admitted facts in this case, the injury and damages complained of were occasioned by the act of God, to wit.: the unprecedented flood, and without any negligence or want of care on the part of the defendant. And, therefore, the plaintiffs were not entitled to recover.

"3d. That it could not be concluded as matter of law from the facts in this case that the goods in question had been unreasonably delayed. And if it were otherwise, the alleged delay and detention of the goods before their arrival at Albany, had no connection with the callse of the injury, to wit: the flood, and this being the act of God and the sole cause of the injury complained of, the defendant was not liable.

" 4th. That by terms of the bill of lading the liability of the defendant was restricted to that of a mere forwarder, and having

Read et al. v. Spaulding.

discharged his duty as such, and the injury having accrued without his fault, he cannot be made liable in this action.

"5th. That upon the whole case, the plaintiffs have not made out a cause of action.

“6th. That in any view of the case, the plaintiffs could not recover under the terms and conditions of a bill of lading a greater sum than $200 for the damage sustained by injury to the goods in Case Five, marked No. 184.

“The Court overruled each of the above grounds, and refused to nonsuit the plaintiffs.

“To this ruling and refusal, the counsel for the defendant then and there duly excepted.

“The Court thereupon directed the jury to render a verdict in favor of the plaintiffs for $681.83, and accordingly the jury did render then and there a verdict for that amount for the plaintiffs and against the defendant.

" To which direction the counsel for the defendant then and there duly excepted. An order was made by the Court, and duly entered, directing that the exceptions be first heard at General Term, and that in the meantime all proceedings on the part of the plaintiffs be stayed.”

Some facts were testified to by the witnesses, which are noticed in the points of counsel or in the opinion of the Court, which it is not necessary here to repeat.

Gilbert M. Spier, for plaintiff.

I. The defendant was guilty of great negligence and carelessness in detaining the damaged goods twelve days before their arrival at Albany, when they should have been, with the undamaged goods, delivered to the plaintiffs at Louisville. The defend. ants received all the goods at the same time.

There is no excuse offered in evidence for this delay.

II. The defendant was a common carrier, and liable as such, excepting so far as his liability was limited by the contract between the parties. A common carrier need not have any interest in, or control over, the means or route of transportation. (Dorr v. New Jersey Steam Navigation Co., 1 Kern., 485; Moore v. Evans, 14 Barb., 524; Fairchild v. Slocum. 19 Wend., 329; McArthur de Hurlbert v. Sears, 21 id, 190.)

Read et al. v. Spaulding. The true meaning of the phrase, “the act of God," is very clearly stated in 1 Smith's Leading Cases, 270.

III. The defendant is clearly liable, from the facts disclosed, as bailee. Every bailee is responsible for loss, even by accident or force, however inevitable or irresistible, if it be occasioned by that degree of negligence for which the nature of his contract makes him generally answerable. (2 Kent Com., 597; 1 Cow. Tr., 60; Teall v. Sears, 9 Barb., 317; Scovill v. Griffith, 2 Kern., 509.)

IV. The clause in the bill of lading, that “no risk would be taken over $200 on any single package," should not prevent the plaintiffs from recovering the amount of damages suffered on the seventeen packages inclosed in the rough open box.

These seventeen packages were as distinctly visible as if they had been thrown together in a pile. They were inclosed merely for the convenience of transportation. There was no fraud, as in the case of Batson v. Donovan. (4 Barn. & Ald., 21.)

The object or intention was to guard against liability upon small packages of goods of great value; and to diminish the risk of insurance without a corresponding compensation for transportation. The bill shows that the defendant received 178 cents for every one hundred pounds: this sum was written in the printed form. He received pay, therefore, for seventeen packages, and not for one package only. Besides, the popular and ordinary meaning of package is not a rough open box or case, inclosing packages.

This clause is not to be regarded as stipulating for willful misconduct, negligence, or want of ordinary care. The foundation of the contract, or undertaking, between the parties, rests upon a legal implication that the bailee shall be responsible for these. (New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How.. U.S., 344; Story on Bailment, $ 570; Camden Co. v. Burke, 13 Wend., 628; Lyon v. Mells, 5 East., 428.)

John H. Reynolds, for defendant

I. The defendant was not a common carrier, but was a mere forwarder, and can be made liable, if at all, only in that character, and by the rules applicable to that relation. He was an expressman, or forwarder of goods, by the conveyances of others. (Hersfield v.. Adams, 19 Barb., 577; Blossom v. Griffin, 3 Kern, 569.) Bosw.–Vol. V.

51

Read et al. v. Spaulding.

1. It appears that the defendant had no interest in, or control over, any of the railroads over which the goods were transported. This gave him the character, and imposes the liability, of a forwarder merely.

2. By the very terms of the contract, he was a mere forwarder as to the goods in question. They were received " to be forwarded by Spaulding to the place named in the bill of lading,” to wit, to "R. A. & Co., Louisville, Ky., via Indianapolis.”

3. The goods were delivered by the plaintiffs' agent to the Harlem Railroad Company, and receipts taken, which were surrendered at the Express office, and the bill of lading taken. This method of doing business indicates that it was well understood by the plaintiff's agent that the defendant, in the transportation of the goods, assumed the obligations of a mere forwarder.

4. The defendant, therefore, was only responsible for diligence and good faith, and the plaintiffs had the onus to show some want of care on the part of the defendant.

5. There was no proof of negligence. The goods were delivered to the Harlem railroad, which was a proper conveyance of the goods in question to their destination.

6. It does not appear when the goods were loaded into the Harlem cars, nor is it shown why they failed to reach Albany until the 7th of February. Whatever may have been the cause, it furnishes no ground of complaint against the defendant.

7. There is nothing in the case from which, as a matter of law, it can be determined that the goods were unreasonably delayed. It is apparent that the entire injury arose from the flood at Albany, and for this the defendant is not liable, whether he was a forwarder or a carrier.

8. While the average time of transportation between New York and Louisville was about fifteen days, it depended upon weather, season of the year, quantities shipped, &c., and sometimes the passage required thirty days. In the present case there was no agreement to deliver in any certain time, and hence the shipment was made subject to all the contingencies incident to the mode of conveyance, the season of the year, and the various circumstances attending the transportation of property; and to found a elaim against the defendant upon any ground of delay, the plaintiffs must have given proof to show a delay arising from negligence

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