Opinion
February, 1896.
M.P. O'Connor, for respondent.
De Forest Bros. (Robert Thorne, of counsel), for appellant.
The plaintiffs brought this action to recover for goods lost in transit after delivery to the defendant for carriage and forwarding to certain parties in Cincinnati, Ohio. There is no contradiction in the evidence, and upon practically an agreed state of facts the case was submitted to the trial judge for determination. His finding was in favor of the plaintiffs, and the defendant's exceptions bring before us the question whether, as matter of law, a recovery for the loss could be had.
In support of the judgment the following facts appear:
Plaintiffs, desiring to make shipments of lumber to two firms in Cincinnati, so notified the defendant, who thereupon sent its own lighter to transport the lumber from their yard to its depot. The defendant's agent was personally informed at the time that instructions as to the manner in which shipments should be made would be given to the captain of the lighter, and he made answer that "that was all right."
There had been a course of dealing between the parties with regard to shipments of this nature, and instructions given to the captains of the lighters employed had been uniformly carried out by the defendant; thus, unless the instruction given in this case, and upon which the matter in suit hinges, was unreasonable and without the usual scheme of transaction between the parties, we must hold it to have formed a part of the contract of affreightment and resolve the question accordingly.
This instruction, which was given to and acquiesced in by the captain of the lighter, was that all the lumber consigned to Unewehr Company should be placed in one car, and to facilitate this purpose the consignment was placed in a portion of the lighter separate from other consignments.
Actually, the shipment was made in two cars, one car being filled and the excess placed in a car with other goods. The defendant had cars of sufficient size to carry this whole consignment and had shipped larger quantities of lumber for the plaintiffs before in one car; no evidence was adduced wherefrom it might be gathered that this instruction was unreasonable, in view of the course of dealing between the parties, and we cannot hold that there was no room for an inference that such a method of shipment as the plaintiff directed was in its nature reasonably within the contemplation of the parties as an incident to the carriage when invoked. The matter fell naturally within the province of the captain, who had been held out as an agent to receive instructions touching the manner of shipment.
These oral instructions, then, which were in evidence without objection, taken together with the bill of lading, formed the contract between the parties, but in the bill of lading it was agreed that the defendant should not be liable for a loss occurring beyond its own line, and, since the evidence shows that the lumber consigned to "Unewehr" was delivered, packed in two cars, to the next connecting carrier, it is claimed that no liability for the loss attached, although only one carload finally reached the consignee.
It appears that the plaintiff had notice of this restriction of liability, notwithstanding that the particular bill of lading in this case was not delivered until after the goods were in transit, since in the various other shipments previously made the same form of contract was used, and nothing different was looked for, apparently, in this instance.
Nor does the proof show any negligence upon the defendant's part in the method of packing the lost lumber in the second car, nor in the manner of labeling that car. But the liability was, we think, properly imposed upon the ground that there was a deviation by the carrier from the terms of the contract, and that for its failure to ship the lumber in one car the defendant was chargeable as an insurer of the goods.
It appears that the reason of the requirement for shipment in this manner was that another consignment of similar lumber was made upon the same day by the plaintiffs to other parties in Cincinnati, and it was feared that a commingling and loss might result if the larger consignment was not shipped entirely by itself. Knowing that the defendant assumed no liability beyond its own line, it was but natural that the plaintiffs should seek some reasonably safe method of delivery, and it would appear that, from the defendant's failure to observe the requirement imposed, exactly what was feared did happen.
The goods were accepted for carriage under an agreement as to the terms of which the defendant had, at least, imputable knowledge, and the case appears to be a proper one for the application of the rule charging a carrier as insurer of goods, notwithstanding exemptions in the contract, where there has been a deviation from its material terms. Maghee v. C. A.R.R. Co., 45 N.Y. 514.
This main question is alone presented to us by the appellant, and we conclude that there is not ground for a reversal.
Judgment affirmed, with costs.
DALY, P.J., and McADAM, J., concur.
Judgment affirmed, with costs.