Opinion
March, 1909.
O'Brien, Boardman, Platt Littleton, for appellant.
Mervyn Wolff, for respondent.
On August 19, 1907, a clerk of the plaintiff on the street in front of his place of business, 715 Broadway, New York, handed to the driver of the defendant a parcel addressed: "A.J. Banks, 392 Main St., Paterson, N.J.," with a proposed voucher for the same on one of the defendant's blanks on which was the address: "E.J. Banks, East Orange, N.J." The driver signed the voucher, then asked which was correct, East Orange or Paterson. On being told East Orange, he handed his indelible pencil to the clerk with: "Here, correct it. Scratch out Paterson and mark East Orange alongside." The clerk with the driver's pencil erased Paterson and put on East Orange. Then he insisted on taking the package upstairs again to re-wrap and re-mark it, offering back the signed voucher; but the driver, having possession of the parcel, kept it, saying: "It is all right, it will reach its destination."
Of his merchandise the merchant heard nothing until there came a postal card, dated January 18, 1908, from the defendant's agent at Paterson, who filled out a printed form to read: "We have received and hold at owner's risk pkg to A.J. Banks, unknown give dispo." On plaintiff's immediate request the package was offered to the consignee who refused to take the goods, heavy weight woolens, which by the advanced season had depreciated to eighty-two dollars and fifty cents, one-half their value at time of shipment.
On request the plaintiff wrote full details of the shipment. There followed much correspondence, the defendant writing professions of its diligent inquiries and efforts to learn how its failure happened, down at least to April 3, 1908.
In none of its letters did the defendant assert, as presently, that the shipper's negligence caused the trouble; that he could make a claim only within sixty days from the date of shipment, and then for not more than fifty dollars. At last the shipper brought this action and in it the learned trial justice awarded him eighty-two dollars and fifty cents by "the true rule of damages." Sherman v. Hudson R.R.R. Co., 64 N.Y. 254, 259.
The defendant contends — in a way it is its most important contention — that it was error to allow testimony of what its driver said to the clerk, whom it calls the plaintiff's agent, because that was "entirely beyond the scope of the driver's limited liability." Not so is the law. The driver was the general agent of the defendant for the purpose of collecting goods for transportation, and he possessed all the necessary implied powers within the scope of his authority for that purpose. There he stood in the place of his principal, in respect of the particular business, to conduct it as a prudent and discreet man would manage his own affairs; and, though limited to a particular business, his authority might be as general as if the range of it were unlimited. Nelson, Ch. J., in Anderson v. Coonley, 21 Wend. 279.
This principle is not one sided. Common carriers, applying it on their side, continuously treat persons entrusted with the delivery of and delivering goods as having authority to stipulate for and accept terms of affreightment and, as rule the courts, to bind the owners of the property. Nelson v. Hudson R.R.R. Co., 48 N.Y. 498; Shelton v. Merchants' Despatch Trans. Co., 59 id. 258; Jennings v. Grand Trunk R. Co., 127 N.Y. 438.
Within limitations exercising in a sense a public employment, exploiting monopolies by parcelling out territory among themselves, carriers have duties toward the public. They may limit their services to the carriage of particular kinds of goods and may prescribe regulations to protect themselves against imposition and fraud, but they can make no discrimination between persons or vary their charges from their condition or character. They are bound to accept all goods offered within the course of their employment or respond in damages for breach of duty.
The driver was not an automation. If he arbitrarily refused what was offered, or if he took the obviously objectionable, badly packed, dangerous, misleadingly addressed, or the like, he would not have been fit for his place on the wagon, nor would he have stayed there had he not had and exercised discretion. Giving advice, asked and unasked, about the completeness, the legibility or illegibility of addresses by the agents of common carriers of goods and of transmitters of telegrams, is so usual that one who withholds it is called a curmudgeon and, on complaint, apologized for by his employer. If in the driver's experienced observation the address was plain enough, it was presumably so for other employees. The narrated colloquy with the driver and his unwillingness to wait for re-marking the package with an address when he thought the one already on good enough are so natural as to have awakened the expectation of his appearance as a witness or explanation of his absence if the narration could be contradicted. No one has been at pains to have the wrapper with its address included in the return, although it was introduced in evidence upon the trial, where it was within the view and inspection of the trial justice, whose finding of negligence includes a determination like that of the driver, that the address was intelligible enough.
There is no legal rule that carriers will take only parcels legibly addressed, or that parcels without address at all may not be given to and taken by the carrier's driver. The pioneers of parcel transportation between the Hudson and the Pacific, and who became chiefs in their line, could hardly read — scarcely wrote at all. Even now, at least within a few years, systematic stowage in the vehicle is or was the mnemonic aid for distribution of the parcels carried, because the capable driver, intelligent in other things than letters, could not even make out the tags on the star route pouches of the United States mail.
But whatever the address and whether addressed at all, the defendant, by its agent's act and by his given writing, call it receipt, voucher or what not, undertook to carry and deliver the parcel to A.J. Banks in East Orange, N.J.; and its proof of failure so to carry and deliver it was proof prima facie of its negligence.
Assuming that the plaintiff should be held to have known the contents of the paper, made out by his clerk upon blanks kept in his office for regular use (Gibson v. American M.U. Ex. Co., 1 Hun, 387), and that the proffer of the paper with the parcel to the driver and his acceptance of the latter and signing of the former constituted prima facie an agreement between the parties, the first separate defense of the carrier, viz., that no liability should arise to it unless a claim were presented in writing within sixty days of the shipment, depends upon its reasonability under the circumstances.
Common carrier decisions are frequent to a byword and irreconcilable ever. Seemingly they are so largely because modifications of old time obligations to meet modern exigencies, made, not by legislators but by courts, arise through predicating reasonable and unreasonable of the terms and conditions written by the common carrier into his voucher to the shipper. Irreconcilable are the decisions, because differentiating reasonable and arbitrary, always referable to surroundings, depends in judicial legislation upon circumstances, moods and modes — fashion of the times and of the bench. It has been said upon our highest authority that, when a clear and express stipulation relieving him from the full measure of that responsibility which ordinarily attends his occupation has been obtained by the carrier from his employer, the court must be able to see that it is not unreasonable.
Under the agreement, bi-lateral as it was, the defendant was bound to ordinary prudence, care and diligence. If one of its servants deciphered the scratched out address and took the parcel to Paterson, the same or another servant speedily learned the consignee was not there findable and, so to rectify as far as might be the mistake, should forthwith have taken the parcel to the address pronounced legible by the driver and so found by the court. If doubt arose thereafter, prompt notice should have been given to the sender whose address was on the wrapper, for the benefit of his business and for the advertisement of each honest person into whose hands the parcel came, consignee, bailee, finder and what not, even the carrier. The propriety of resorting to this advertisement and notification, the carrier recognized by sending the belated postal card of January eighteenth. Indeed, the propriety of such a notification has been recognized in this State since 1837 (Laws of 1837, chap. 300, § 1), when it was made the duty of the common carriers then well known, proprietors of lines of stages, canal boat lines, steam boats and incorporated railroad companies, to immediately notify the owner of unclaimed trunks, boxes or baggage by mail, and provided a penalty of five dollars recoverable in an informer's action for every article so neglected. The express companies, then unknown, were not brought in upon the amendment of this statute for the protection of the public. They have obtained protection by the act of 1855 allowing for the sale of perishable and unclaimed goods.
Cases abound wherein ordinances of limitation, lesser and longer in length, have been upheld; but none is cited to the court, neither is any disclosed by search, ruling it reasonable that a carrier may by its own ordinance secure exemption for its own blunders by suppressing the information of its blunders resting in its alone knowledge. That would let it set an unwholesome premium upon its untoward reticence, would offer temptation for the hiding of facts to all ranks in an occupation wherein is demanded a peculiarly high standard of duty, because, among other things, carriers (if not altogether and alway among themselves) exploit monopolies as to the public. The gross negligence of the carrier in handling this parcel was found upon ample proof. Its great delay in notifying its customer was commercially culpable, or of such negligence as to apply culpability and set aside the ordinance of limitation which it would exact from its particular customer as well as from the whole public.
Of the second separate defense, that, inasmuch as the value was not stated, it was validly agreed between the parties that the defendant should not be liable in any sum above fifty dollars, it is otherwise. Such a limitation is presently good. It is so held in the latest pronouncement thereabout by the Court of Appeals (Tewes v. North German Lloyd S.S. Co., 186 N.Y. 151), wherein are exhibited on one page of the learned prevailing opinion a quotation from a prevailing opinion (Wescott v. Fargo, 61 id. 542), written January, 1875, by a school master in the law, temporarily a judge, "clearly stating the rule which has ever since been consistently followed"; and, on the opposite page, from an opinion handed down four months later and reported in the succeeding volume (Magnin v. Dinsmore, 62 id. 35) a quotation which "makes it clear that the Wescott (the school master's) case was distinctly overruled." Both cases have been cited on both sides the bar fittingly and frequently during the past four and thirty years. Harmony of these profound productions of the law of the land is perplexing to the perspicacious. Early in the current decade this vicissitudinous question came up again and was settled once more. The Appellate Division in an adjoining department took the "distinctly overruled" case for the right ruling, decided accordingly and saw it approved on their own opinion in the Court of Appeals. Bermel v. N.Y., N.H. H.R.R. Co., 172 N.Y. 639. That case is in point for the respondent and he cites it, confident of keeping his judgment. His confidence is misplaced. Overlooking the evolution of judicial legislation, he has overlooked the newer case (Tewes v. North German Lloyd S.S. Co., 186 N.Y. 151) brushing away the foundation of Bermel's judgment. Mayhap this is not surprising, for so smart has been the progress of that evolution in our court of final instance that two of the members, one of them the chief justice, of that venerable college took the Bermel case for law and on its strength dissented. As remarked above, the limitation of claim and recovery against the carrier to fifty dollars is presently good, whether the carrier be careless or not; and the judgment should be reversed and a new trial granted, with costs to abide the event, unless the plaintiff stipulate to reduce his recovery to the sum of fifty dollars with interest from the date of his loss, and costs, in which event the judgment herein as reduced should be affirmed, without costs of this appeal to either party.
GILDERSLEEVE and DAYTON, JJ., concur in the result.
Judgment reversed and new trial granted, with costs to abide event, unless plaintiff stipulates to reduce recovery to fifty dollars with interest from date of his loss, and costs, in which event the judgment affirmed, without costs of this appeal to either party.