Houston and Texas Central R. W. Co. v. Russell Adams, 49 Tex. 748

Moore, Associate Justice. By the contract upon which this action was brought, the plaintiff in error undertook and bound itself, as a common carrier, to safely carry from the city of Houston, in Harris county, and deliver at its depot in the town of Brenham, the goods for the value of which the defendant in error brought this suit. It appears from the receipt given by the forwarding agent of plaintiff in error at Galveston, January 12, 1871, that the bales and box containing the goods to recover the value of which this action is brought were marked “ E.

Adams, Brenham, Texas ”; but we cannot infer from the record that the identity or ownership of them by defendant in error was otherwise disclosed, or that the place of residence of the consignee was known to plaintiff in error, or its agents who forwarded or received the goods, either at Brenham or Burton, where they were lost. The statement of facts shows that on the 19th of January, 1871, the goods arrived at Brenham, and were placed in plaintiff’s depot at that place; but, on a letter from some one signing himself “ E.

Adams” requesting it, they were, on the 23d of the same month, forwarded to Burton, where they remained in plaintiff’s depot until the 16th of March, 1871, when they were delivered to Eobert Adams, who receipted for them by writing his name E. Adams in plaintiff’s freight book, opposite the entry therein of said articles. The Eobert Adams to whom the goods were delivered is shown to have been about Burton for a month or two previous to the delivery of the goods to him, or it may be for that time prior to their arrival at Burton; and he remained there for several months subsequently.

He seems to have been an ordinary laborer. His occupation during a part of the time was that of digging a well for one of defendant’s agents or clerks at that place. It is shown that he had frequently inquired for the goods previous to their arrival, stating that they had been shipped to Brenham, but that he had requested defendant’s agent at that place to forward them to Burton.

Subsequently to the delivery of the goods-to Robert Adams at Burton, and probably a month or two after he had left there, the defendant in error, discovering that they had been forwarded, as we may infer, by mistake of the forwarding agent of the Morgan line of steamers at Galveston, (and who must be regarded as also defendant’s agent,) to Brenham, instead of Bremond, demanded them of plaintiff in error at Brenham, and also at Burton, having previously made repeated applications for them at Bremond. Failing, however, to receive the goods at either place, on the 6th of February, 1873, he instituted this suit.

Admitting that the mistake in freighting the goods to Brenham, instead of Bremond, cannot be imputed to defendant, still it cannot be denied that defendant was bound as a common carrier to deliver the goods in Brenham to the real consignee to whom they in fact belonged, and that the delivery of them to any one else was a violation of the contract, which entitled the owner to an action for their value. The case of Winslow v. The Vermont and Massachusetts Railroad Company, 42 Vt., 700, is strictly in point, and fully sustains this proposition.

It is there said: “It has been urged, that the defendants cannot, even as carriers, be held liable for delivering the goods to the wrong party, if they deliver them in the cus- - tomary manner and in the usual course of business. We think no such exception to the common-law rule can be made. The carrier is under the same contract, obligation, or duty to deliver the goods safely that he is to carry them safely. The law fixes th*se duties upon the carrier, and he cannot relieve himself from them by proving his usage.

It is true, as urged, that it is not as customary for other carriers, as it is for express companies, to oblige themselves to look up the owner and consignee, and deliver the goods to him at his residence or place of business. But all classes of common carriers are responsible, and equally responsible, for a loss of the goods by delivery to the wrong person.” And says the court in McEntee v. The Hew Jersey Steamboat Company, 45 H.

Y., 34: “Common carriers deliver property'at their peril, and must take care that it is delivered to the right person; for if the delivery be to the wrong person, either by an innocent mistake or through fraud of third persons, as upon a forged order, they will be responsible, and the wrongful delivery will be treated as a conversion.” Humerous other cases to the like effect might be easily cited, but it is unnecessary.

The proposition is too elementary to require it. (Story on Bail., secs. 540, 543, 545b.) It certainly follows, if the carrier is guilty of a" conversion of the goods by delivering them to the wrong person, though he has acted in good faith and with due caution, he is equally so when he forwards them from their point of destination elsewhere on the order of any one but the party to whom they should have been delivered. (Stephenson v. Hart, 13 E. C.

L., 596.) The consignee is entitled to receive his goods at the place where the carrier undertook and bound himself to deliver them, and is under no obligation to seek or demand them elsewhere. Hor can he be held bound by, or be supposed to have consented to, their improper shipment or delivery by the carrier, merely by following them to the point to which they have been improperly forwarded, or by demanding them from the party to whom they were wrongfully delivered.

But plaintiff in error maintains that its liability to defendant in error as common carrier, in respect to these goods, had ceased even before they were forwarded to Burton; and if not, it certainly had before they were delivered at Burton to Robert Adams. In order to determine whether plaintiff" in error incurred any liability to the owner by forwarding the goods to Burton and delivering them after their arrival there to said Robert Adams, it is maintained that recourse must be had to the law applicable to warehousemen,.and not to that to which carriers are held subject.

But let us see if it is true that defendant’s liability as "carrier for the delivery of these goods had ended before they were delivered to the pretended owner at Burton, or would when they were forwarded from Brenham.

When the course of business of the carrier is such as will not ordinarily admit of a personal delivery of the goods to the consignee, there seems to be some conflict in the adjudged cases as to the precise time and circumstances when the liability of the carrier as such ceases and that of warehouseman begins; but whatever difficulty may be found in determining this point at common law or in reconciling the different decisions regarding it, is eliminated in this State by statute, by which it is clearly and definitely determined.

Section 4 of the act concerning common carriers, and defining their liabilities in certain cases, (Paschal’s Dig., art. 455,) reads as follows, to wit: “Railway companies and other common carriers having depots or warehouses for storing goods, shall be liable as warehousemen as at common law for goods, and the care of the same, stored in such depots or warehouses before the commencement of the trip or voyage on which said goods are to be transported; but shall be liable as common carriers from the commencement of the trip or voyage until the goods are delivered to the consignee at the point of destination.

If' the carrier at the point of destination shall use due diligence to notify the consignee, and the goods are not taken by the consignee, and have in consequence to be stored in the depots or warehouses of the common carriers, they shall thereafter only be liable as warehousemen.” Evidently, by the plain language of this statute, the com- ■ mon-law liability of the carrier continues until the goods are delivered to the consignee, unless due diligence has been used by the carrier to notify him of the arrival of his goods, and he has failed to take them away.

What are the essential facts constituting the diligence required by the statute, must obviously depend in some- degree upon the facts and circumstances of each case in which it is to be shown, and upon the custom and usage of business at the place of delivery. (Blumenthal v.

Brainerd, 38 Vt., 402.) But we need not speculate in this case as to what are the essential facts which must be shown to establish the fact that due diligence had been exercised to notify the consignee of the arrival of his goods, as there is no pretense that any effort whatever was made to ascertain defendant’s residence, or to give him notice of their arrival at their point of destination.

If any effort at diligence had been made, it might have been necessary to pass upon its sufficiency; but as none whatever was used, or even attempted, there can be no reasonable pretense that defendant did not continue to hold the goods as carrier. (Michigan Central Railroad Co. v. Ward, 2 Mich., (Gibbs,) 538.) But if defendant’s liability was merely that of warehouseman, would the facts shown in the record have justified the forwarding of the goods from Brenham, or the subsequent delivery of them to a party in whom the evidence fails to show anything more than a mere pretense of right to them ?

While a warehouseman may no doubt be fully justified in many instances in delivering freight to well-known and responsible business men residing in the immediate vicinity of the place to which goods are sent, we think there can be no hesitancy in saying that it was gross negligence to deliver goods of the description and value of these to a man without family, or settled place of residence, or permanent occupation, who held no receipt or bill of lading for them; and this, too, in the absence of facts or circumstances of any kind tending to show that he either owned or had any connection with them, except his statement, before the arrival of this particular freight, that a lot of freight belonging to him had been shipped to Brenham, and that he had ordered it forwarded to Burton, and the bare fact of the similarity of his surname and the initial letter of his Christian name with that of the consignee; and certainly nothing whatever is shown to have warranted defendant in forwarding the goods from Burton.

It does not appear that defendant’s agents knew, or had even ever heard, prior to the receipt of his letter, that such a person as “E. Adams” was residing there, or could rightfully lay any claim to these goods. The only remaining question is,—Was the action barred by limitation when the suit was brought ? There is no pretense that it was, unless defendant was guilty of a conversion of the' goods when they were forwarded to Burton on the order of E.

Adams; but if so, certainly the statute would not begin to run against plaintiff until he had notice of their conversion, or the lapse of time had been sufficient to charge him with notice of it. It is not pretended that plaintiff is chargeable with actual knowledge of the conversion in time to complete the bar before the commencement of his suit; and certainly we cannot say that the mere lapse of time from the 23d of January to the 6th of February is sufficient to raise a presumption that he must have known of the conversion of the goods, which we must do before we can reverse the judgment on this ground.

When actual knowledge of the conversion is not shown, the statute cannot commence to run against the consignee before it was his duty to apply for the delivery of the goods. The time within which the owner is bound to apply for or demand them, evidently' depends upon the terms of. the contract under wffiich they were freighted, the usual length of time required to transport. freight from the place of delivery to its point of destination, the reasonable course of business at the place of its delivery, and other attending circumstances.

These facts and circumstances, however, were not developed or exhibited upon the trial, as they should have been, by defendant, upon whom the affirmative of this issue rested. Whatever, therefore, may be the real facts, the evidence before them would not have warranted the jury in finding the action barred. There is no error in the judgment, and it is therefore Affirmed.