American Express Company v. Smith.

days - the worst kind of weather for fruit. He was on the car in which the peaches were, and says it was so close and sultry that it was very unpleasant to remain in it; that the condition of the weather was such that had they gone straight through, they would have been worthless upon reaching New York. He examined them Monday after they had been unloaded and given air, and none of them were sound. There is much testimony of this kind, all tending to show the unfavorable condition of the weather, that the car had been close and hot, that it was wet with moisture and vapor arising from the fruit, which had become heated and in such condition as to be past saving before it could have reached New York in the ordinary time. It therefore seems to us that the best thing to do under the circumstances was that which was done - namely, to sell the stuff at once. The express company did get one lot to Albany, but were compelled to sell them there.

These remarks, as to the condition of the fruit, apply to all the various lots. When they reached Utica, the testimony is without contradiction that they were in such plight that they could not have been got to New York in any way, or by any route, so as that they would at all have been marketable.

We have not gone into the evidence in extenso, but these conclusions are abundantly supported by it. We therefore feel bound to say that the loss of the peaches was occasioned not by any fault or negligence of the express company, but by the perishable nature of the article, in connection with the condition of the weather; and the delay which occurred at the break was something for which the express company was not responsible.

The jury however proceeded to render a verdict, an analysis of which shows that it was predicated upon the idea of the peaches reaching New York in a perfectly sound condition, as it is based upon the highest market price; it being at the same time perfectly apparent that had there been no break, the peaches could not have reached New York in a sound condition.

Among other things the court charged the jury:

"But if the defendant was prevented from sending them by that route in consequence of the washing away of a bridge, which did. not happen through the negligence of the railroad company or the defendant, then it was the duty of the defendant, after first ascertaining that it could not send forward the peaches by that route, so as to get them to New York city in time to preserve them, to use

American Express Company v. Smith.

ordinary care and diligence to employ some other safe and reliable route or agency, or express company, if such was then known and available to the defendant, by which the peaches could be carried through to New York city in time to save them."

This was misleading, in that it drops out of view the actual condition of the peaches at the time when they ought to have been sent forward upon this supposititious other route. Clearly, if they were rotten and entirely worthless upon reaching the point where this transhipment could have been made, there would have been no sense in sending them on. The jury should have been told to take into view the circumstances as they actually were the condition of the weather and of the fruit and under proper instructions should have determined whether the company were bound to seek some other route for transportation.

In the view, however, that we take of the evidence, plaintiffs made no case for recovery, and the judgment should be reversed.

Judgment reversed.

NOTE BY THE REPORTER.- In Place v. Union Express Co., 2 Hilt. 19, the defendant agreed to transport fruit from New York to Milwaukee, within twelve days, stipulating, among other things, for exemption from liability from unavoidable or extraordinary casualty, and from natural tendency to decay. Owing to a crowd of freight on a connecting road there was a delay of twenty days, and the fruit decayed. There was another connecting road, but the defendant had no arrangements with it. It was held that the defendant was liable for the loss, notwithstanding a stipulation that it should pay the plaintiff five cents per 100 pounds for every day's delay beyond the twelve days. The court said, the stipulation for exemption from liability for decay, "must be understood as applying to decay or injury to which the fruit might be subject during the prescribed time within which the defendant undertook to deliver it at Milwaukee." "Even if no time had been agreed upon, the defendants would have been bound to have completed their contract within a reasonable time, and if they had failed to do it within that time without legal excuse, and the property afterwards and before delivery had become injured from its natural tendency to decay, they would have had to make good the loss." So, the carrier is liable for injury by the heating of corn where the transportation is delayed beyond a reasonable time. Illinois Cent. Ry. Co. v. McClellan, 54 Ill. 58; S. C., 5 Am. Rep. 83.

A common carrier has been held for leakage. Warden v. Greer, 6 Watts, 424; Phillips v. Clark, 2 C. B. (N. S.) 156. But not where the leakage was from the inherent defect of the cask. Hudson v. Boxendale, 2 H. & N. 575. Here the court say, "A carrier is not responsible for damage arising from any inherent defect in an article delivered to him to be carried." But even if he stipulates for exemption in such case, he is still liable for gross negligence. Phillips v. Clark, supra; Merchants' Dispatch and Trans. Co. v. Couforth, 3 Colo. 280; 8. C., 25 Am. Rep. 757. A carrier of animals is not liable for injury in consequence of the conduct or propensities of the animals. Mynard v. Syracuse, etc., R. R. Co., 71 N. Y. 180; S. C., 27 Am. Rep. 28.

In Nelson v. Woodruff, 1 Black. 156, it was held that hog's lard having certain qualities which make its leakage from ordinary barrels or wooden casks unavoidable in hot weather, a person who ships it in that condition from a southern port for a long voyage through low latitudes in mid summer, takes upon himself the risk of all loss proceeding from that cause. In Warden v. Greer, 6 Watts, 424, it was held that a carrier was not liable for loss of molasses caused by its fermentation and expansion, nor for leakage from secret defects in the casks. But it was there held that the carrier could not thus account for a loss of 2,000 out of 10,000 gallons, in contradiction of hie bill of lading, reciting the receipt in good condition.

American Express Company v. Smith.

In Ship Howard v. Wissman, 18 How. 231, the carrier was held not liable for potatoes shipped when wet and decaying on the voyage. And the same was in effect held as to a cargo of fruit, in Brig Collenberg, 1 Black. 170.

In Brown v. Clayton, 12 Ga. 580, the court said: "If goods are shipped in good order, and by reasor of inherent causes, without default on their" (the carriers') part, deteriorate on the voyage, I cannot believe for a moment that they would be liable to make good that deterioration. For example, a cargo of oranges shipped at Havana, for Liverpool, and decaying on shipboard. The language of Chancellor KENT, before quoted, to wit: The carrier is no more an insurer of the soundness of the cargo, as against the perils of the sea, or its own intrinsic decay, than he is of the price in the market to which it is carried,' asserts the true rule."

Whether a carrier is bound to give perishable property the precedence in transportation has been debated.

In Swetland v Boston and Albany R. R. Co., 102 Mass. 276, a freight train of nine cars became obstructed by a snow storm, so that only four cars could be forwarded. Among the care left was one with a load of apples. It was held that the defendant was not bound to forward that car in preference to others containing freight not liable to injury by freezing. The court said: "Nothing is required of him in respect to such risks but the use of due care. If the owner of goods, which are liable to injury by freezing, chooses to send them at a season of the year when they are exposed to such a risk, he takes the risk himself. The conductor was bound to assume that it was important to each owner of freight that his property should be carried with all reasonable care and speed, as the company had undertaken to do and had directed him to do, and he could not know that the speedy delivery of the contents of the other cars was not more important than that of the apples."

In Peet v. Chicago and N. W. Ry. Co., 20 Wis. 594, it was held that there is no invariable rule requiring freight to be carried in the order in which it is received, without regard to its character or condition, or its liability to perish. The instructions complained of were that press of freight will not excuse failure to carry in ordinary time, unless freight is carried in the order in which it is received, and that in case of press of freight and consequent delay, a carrier has no right to give preference to freight of one person over that of another. These were held erroneous, the court observing: "If the carrier received for transportation goods perishable and those not so at the same time, and there were a press of freight, so that he could not transport and deliver all before the perishable goods would perish, but could deliver the perishable in time to save them, if the delivery of the others was delayed, can there be any doubt what his duty would be? Can there be any doubt that a preference in such a case would be reasonable, and if reasonable that the perishable goods, if they did not have the preference, would not be delivered in a reasonable time, and the carrier would be liable?" In this case the delay sued for was caused by press of freight and preference in transportation of perishable property, and this preference was held justifiable. In the Massachusetts case, supra, it was held that the carrier was not bound to give such preference.

In Tierney v. New York Central and Hudson River Railroad Company, 76 N. Y. 305, the plain tiff, on January 6, 1873, delivered to, and loaded upon one of defendant's cars, at Albany, a car load of cabbages for transportation to New York, and paid freight thereon. On the car was placed a placard, signed by defendant's general freight agent. containing the following: "Perishable property; this car must run to New York by first train." A way bill was delivered to plaintiff, showing shipment from Albany, January seventh. The car left Albany and arrived at East Albany at 10.40 P. M. of that day; at 10.50 a freight train started therce for New York; this car remained until 3.20 P. M. of January ninth, when it proceeded to New York. On arrival the cabbages were found to be frozen. The usual time required for a freight train to go from Albany to New York is from ten to eleven hours. In an action to recover for the loss, it appeared that f the cabbages had been delivered in the ordinary course of business, they would not have been frozen. Defendant's evidence tended to show that the car, on its arrival at East Albany, was switched on to a side track and blocked up by cars subsequently arriving, so that it could not be moved until they were sent forward. It did not appear that any sudden emergency arose interfering with the ordinary use of the road, or that the amount of freight was unusual, or exceeded the capacity of defendant to remove it, or that the freight sent forward after the car arrived was made up of freight received before. Held, that the facts justified a verdict for plainH. The court charged, in substance, that it was the duty of defendant to transport the cabbage.

American Express Company v. Smith.

by the first train, unless a reasonable and proper excuse for the delay was shown, unless there was such a pressure of property of a similar kind which arrived before as to make it impossible; that if there was a pressure of freight this car should have been forwarded before forwarding ordinary non-perishable property. Held, no error. The court also remarked, obter, by DANFORTH, J.: "But if the charge of the trial judge is construed as instructing the jury that the pressure of non-perishable property should not excuse the delay, I am of the opinion that he was right and the principle of law enunciated by him, sound. Wibert's Case, 12 N. Y. 245, is not to the contrary. There the question was not presented as to the duty of a carrier to discriminate in favor of perishable freight over non-perishable. That decision therefore should not control this case. It is itself placed upon a qualification to the peremptory direction of the statute, and while it should be followed in similar cases, is not to be extended. The distinction suggested by the charge exists. In Cope v. Cordova, 1 Rawle, 203, the court, while holding that the liability of the carrier by vessel ceases when he lands the goods at a proper wharf, adds 'it is beside the question to say that perishable articles may be landed at improper times to the great damage of the consignee - when such special cases arise they will be decided on their own circumstances. Such a case was presented to this court in McAndrew v. Whitlock, 52 N. Y. 40, where a carrier was held liable for the loss of certain perishable property, licorice, under circumstances which would have exonerated him from liability if it had not been perishable. In Marshall v. N. Y. C. R. R. Co., 45 Barb. 502; affirmed by this court, 48 N. Y. 660, it was held by the Supreme Court that where two kinds of property, one perishable and the other not, are delivered to a carrier at the same time by different owners for transportation and he is unable to carry all the property, he may give preference and it is his duty to do so, to that which is perish. able. In this court the case turned upon other points, but referring to the rule above stated, HUNT, J., says, the principle laid down is a sound one and in a proper case would, I think, be held to be the law. It is not here important.'

"The rule is a correct one and is equally applicable to the duty of the carrier in whose hands freight has so accumulated that he must give priority to one kind over another.

"In requiring the defendant to receive all kinds of property, including perishable, the statute may be construed as imposing upon it such obligations and duties as are required for the proper and safe carriage of that kind of goods. In that respect assimilating a railway corporation to a common carrier, bound by the obligations of the common law to carry safely and immediately the goods intrusted to him- having in the exercise of care, speed and priority of transportation some reference to the natural qualities of the article and the effect upon it of exposure to the elements. McAndrew v. Whitlock, 52 N. Y. 40; Marshall v. N. Y. C. R. R. Co., 48 id. 660; Pe. Chicago and N. W. R. R. Co., 20 Wis. 594. We may also take into consideration the fact that the freight in question was not only perishable, but was known to be so by both parties, and was shipped as such, and with knowledge on the plaintiff's part of the custom of the defendant to give a preference in transportation to such goods, and the parties, though silent, may be regarded as adopting the custom as part of the contract. Cooper v. Kane, 19 Wend. 386; Peet ▼. Chicago and N. W. R. R. Co., 20 Wis. 598.

**In such a case the pressure of other property non-perishable should furnish the defendant no excuse. It knew the condition of its tracks and its ability or inability to move the freight on hand, but the plaintiff knew neither of these things. When the cabbages were delivered to the defendant its agents were well aware of the hazard to which the property would be exposed by delay; they knew that the plaintiff expected it to go forward at once, and they received it not as warehousemen to store, but as carriers to transport; they were not bound to receive it antil a reasonable time before the time fixed by public notice for the starting of a train, at which time the statute declares they shall furnish sufficient accommodation for its transportation and assumes that they will then be ready to forward it. Faulkner v. S. P. R. Co., 5 Mo. 311. Its reception was therefore in itself an assurance to the plaintiff that it should at once and without delay be sent to its destination. The defendant took the property from out of the plaintiff's keeping, received his money for transportation, and by these acts took upon itself the risks of detention, and thereby undertook to make good all damages which were the natural and necessary consequence of unreasonable delay; as much so as if it had executed an express contract to that effect. In determining whether there was or not such delay the character of the freight offered may well be taken into consideration. If, as is suggested in the Wibert Case, the owner of property destined to a market may always be presumed to desire its arrival at the earliest practicable VOL. XXXI - 72

American Express Company v. Smith.

time,' and therefore the carrier should, in the absence of any cause for delay, send it immediately forward, it would seem that the carrier, receiving more property than he could at once transport, some of which, from natural causes or the action of the elements, may be deemed perishable, should give such property a preference in transportation over other property in his hands. In no other way could its delivery in a reasonable time be assured. The very receipt of the property in question, under the circumstances adverted to, imposed a duty upon the defendant to forward it at once, and for the damages occasioned by its default the plaintiff is entitled to recover. Doubtless the defendant, as was lawful, measured the compensation it should receive in part by the hazard it incurred and the extra care and diligence imposed upon it by the fact that the articles were perishable. The obligation would not have been other or different had there been an express agreement. Of the carrier, Lord COKE says: He hath his hire and thereby impliedly undertaketh the safe delivery of the goods delivered to him;' and in Hollister V. Nowlen, 19 Wend. 238, the court say: The carrier may no doubt demand a reward proportioned to the services and the risk he incurs, and having taken it he is treated as an insurer and bound to the safe delivery of the property. But the extent of his liability does not depend on the terms of his contract. It is declared by law.' Again: 'It is not the form of the compact but the policy of the law which determines the extent of the carrier's liability.'

"If we assume, then, that there was evidence in the case tending to exonerate the defendant, It was submitted to the jury with proper instructions and the judgment appealed from should be affirmed."

CHURCH, Ch. J., MILLER and EARL, JJ., concurred; FOLGER, Rapallo and ANDREWS, JJ., dissented.

In Marshall v. N. Y. C. R. Co., cited, supra, the question of perishability of the property ir suit was not involved, but it was said that the delay in transporting the property in question being caused by the transportation of perishable property, it was excusable. As the court said, in 45 Barb. 506, "it was a mere abstract remark, not essential to the case, and one which could have not done any injury if erroneous. But I am not prepared to say that it was erroneous," etc. In McAndrew v. Whitlock, 52 N. Y. 40, the defendant carried for plaintiff, from Liverpool to New York, cases of licorice, and was notified that it was perishable, and must be delivered only on a fine day. The parties agreed on the arrival that the goods should be delivered September twentieth, if the day were fine. On that day it rained till 9 A. M. and then cleared up, but rained again at 2.30 P. M., and from 4.30 P. M. the rest of the day and night. The defendant notwithstanding, unloaded the goods, and they were damaged by the rain, in spite of the consignee's diligence. The defendant was held liable.

Mr. Schouler (Bailments, 397) thus states the rule: "But losses due to the natural decay, deterioration and waste of the things carried, are excusable; and such also as may be fairly attributed to the wear and tear of the journey; all this, however, with reference to the nature and inherent qualities of the articles in question, their unavoidable exposure at the time and place, and under the general circumstances, while in charge of a carrier of ordinary prudence, and the condition in which the shipper may have chosen to intrust them to the carrier for the particular transportation. For example, where liquors evaporate, effervesce, sour, or burst the bottles, or leak out of the casks in which they were consigned (for whose imperfections the carrier is no more answerable than for their own inherent qualities), the loss is not the carrier's, unless he occasioned it by remissness of duty. Nor where meat taints, lard melts, oranges and lemons rot, salt loses its savor, or eggs grow stale, is the carrier necessarily under obligation to replace the goods in quantity or quality, or stand to the loss in damages. The broad ground of all such exception is 'act of God;' or in other words, that natural causes must be allowed their natural and inevitable operation during the accomplishment of the bailment purpose, provided the bailee pursue his course with ordinary care and diligence. This doctrine may often be found reinforced by that other reason of exoneration to be later discussed, the fault of the owner or customer himself. For the common sense of carriage undertakings forbids that the carriers should warrant by implication the quality of what he simply conveys for the true owner."