Christenson v. The American Express Company. receipt. Dorr v. N. J. Steam Nav. Co., 11 N. Y. 491; Bowman v. Am. Express Co., 21 Wis. 152; 2 Redfield on. Railways, 28; Prentice v. Decker, 49 Barb. 30; Farnham v. R. R. Co., 55 Penn. St. 53; Angell on Carriers, §§ 54, 220. But to bind the shipper by the terms of the special acceptance, he must expressly assent to it, or it must be brought home to him under circumstances from which his assent is to be implied. Judson v. W. R. R. Co., 6 Allen, 489; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How., supra; 2 Redfield on Railways, 22, 93. In this case it appears that, simultaneously with the delivery of the goods to the defendants, the receipt above recited was delivered to the plaintiffs' consignors, and it was produced in evidence by the plaintiffs upon the trial. In the absence of evidence to the contrary, it is to be presumed that the consignors were the plaintiffs' agents to contract for the transportation of the goods; and the delivery of the receipt to the consignors must be held to be equiva lent to a delivery to the plaintiffs, to whose possession it appears to have come. And as there is nothing tending to show that any objection was made to the terms of the receipt, or that they escaped attention, the assent of the consignors—the plaintiffs' agents, and of the plaintiffs through their agents-to such terms is also to be presumed. Gould v. Hill, 2 Hill, 623; 2 Parsons on Contracts, 234; 2 Redfield on Railways, 22, 28; Bowman v. Am. Express Co., 21 Wis. 158; King v. Woodbridge, 34 Vt. 571; Shaw v. R. R. Co., 13 Ad. & El. (N. S.) 347; Palmer v. Grand Junction R. W. Co., 4 M. & W. 749; Dorr v. N. J. Steam Nav. Co., 1 Kern. 491. We are not, however, to be understood as determining that the circumstances under which receipts of this character are delivered may not sometimes be such as to repel any presumption of assent to their terms arising from the simple fact of taking such receipts. And this brings us to the most difficult question in the case, viz.: what is the fair construction of the receipt? The defendants style themselves "express forwarders," and they "agree to "forward" the goods. But this language does not necessarily give them the character of simple forwarders, nor prevent them from being treated as common carriers. Buckland v. Adams Express Co., supra; Read v. Spaulding, 5 Bosw. 404. Then they agree to forward "only perils of navigation and transportation excepted;" but while this exception embraces more than the "act of God," it goes no further than to exempt the carrier Christenson v. The American Express Company. from liability for such perils as could not be foreseen or avoided in the exercise of care and prudence. The exception does not excuse the carrier for negligently running into perils of the kind mentioned. The proper construction is analogous to that which is put upon the words "perils of the sea," or "dangers of the lake," it. bills of lading. Fairchild v. Slocum, 19 Wend. 332; S. C., 7 Hill 292; Whitesides v. Tharlheld, 12 Smedes & Marsh. 599; Hayes v. Kennedy, 41 Penn. St. 378; Edwards on Bailments, 492-496, and cases cited; Angell on Carriers, §§ 166-174. While, then, it would seem very proper to hold that a snag in one of our western rivers is a peril of navigation, as appears to have been done in Tennessee (see cases cited in Edwards on Bailments, 492), if a vessel is wrecked upon one through the negligence of the carrier, or of those whom he employs, as the referee finds in the case at bar, the carrier is not absolved. Under such circumstances the loss is properly attributed to the agency of man, not to the peril of navigation. Having undertaken to carry the goods, the carrier shall not be heard to set up his own negligence to excuse him from responsibility. The receipt goes on to say: "And it is hereby expressly agreed, and is part of the consideration of this contract, that the American Express Company are not to be held liable for any loss or damage, except as forwarders only." By this clause it is contended that the responsibility of the defendants is limited to that of forwarders, pure and simple; that pro hac vice they are forwarders to all intents and purposes. Now a mere forwarder is absolved from liability upon showing that he used ordinary diligence in sending on the goods, by careful, suitable and responsible carriers. Edwards on Bailments, 293; Roberts v. Turner, 12 Johns. 233; Brown v. Dennison, 2 Wend. 594; Johnson v. N. Y. Central R. R. Co., 33 N. Y. 611. And the defendants insist that the boat, by the sinking of which the loss in this case was occasioned, being staunch and strong, properly manned and equipped, and run by a responsible company, they, the defendants, have done all that was required of them, and are therefore not liable. But looking at the whole scope of the receipt and at the mode in which the defendants transact their business, we think the construction contended for by the defendants cannot be allowed. The defendants do not agree to simply forward the goods as mere forwarders do, by delivering them to a carrier. n such cases, if the forwarder has exercised due diligence in selecting Christenson v. The American Express Company. the carrier (when no particular carrier is designated by the owner of the goods), his duty is discharged, his connection with and responsibility for the goods cease; he has no interest in the freight, nor any thing to do with their ultimate delivery to the consignee at the point of destination. But in this case the defendants not only agree to forward the goods, but to forward them to their own agent. As the defendants state in their answer, such agent is, according to their usual course of business, to deliver the goods to the owner personally, and he receives the entire charges. A messenger in the employ of the defendants accompanies the goods as they are being transported, to take general charge of the same and attend to their transhipment and delivery to the proper local agent. The defendants are not simply agents for the shipper to contract for the transportation of the goods. There is no contract between the owner of the goods and the owners of the vehicles or vessels which the defendants employ in conducting their business. The goods are delivered in the first instance to the defendants; the defendants, through their messenger, have charge of them during their transmission; the defendants employ the vehicles and vessels used in transportation for themselves, not for the shipper; the goods, when they reach the point of destination, are passed over by the messenger to the defendants' local agent, and by him delivered to the consignee. As remarked in a former part of this opinion, the defendants must, under this state of facts, be regarded as common carriers. Their contract is to carry the goods, and having entered into this contract they are not to be permitted to say that they shall not be responsible for the negligence of themselves or of the agencies employed by them in its performance, though they may, by special agreement, modify and limit their common-law liability as insurers of the goods. From the very nature of their business, and of the service which they undertake to render to the plaintiffs, the defendants are not forwarders, but carriers, and when they assume to restrict their liability to that of forwarders, it is as much as to say that they will not be responsible to the owners of the goods according to their true character and to the actual relation which they sustain to them. In our opinion, then, the effect claimed, for this clause of the receipt by the defendants is inconsistent with, and repugnant to, the scope and intent of the receipt, viewed as a whole, and in connection with the facts showing the defendants' real character and mode of doing Christenson v. The American Express Company. business. And although the defendants' liability at common law, as common carriers and insurers of the goods, is modified by other provisions of the receipt, as well as possibly in some respects by the clause under consideration, it is not so far modified by either as to exempt the defendants from responsibility for their own negligence, or the negligence of the agents employed by them in the transmission of the goods. In fact, so far as the simple duty of carrying is concerned, this clause would seem to have no bearing or application. In Hooper v. Wells, Fargo & Co., 27 Cal. 11, where an express receipt contained a stipulation that the express company were "not to be responsible except as forwarders," it was held to mean that the liability" shall be governed by the principles of law applicable to forwarders; that is, that they shall only be liable for losses arising from a want of ordinary care on the part of themselves and in the agencies made use of by them in the exercise of their ordinary business of carriers. But though the view thus taken by the supreme court of California would, in the case at bar, lead to the same conclusion to which we arrive, the construction strikes us to be somewhat forced. We think the view which we take is the more rational, and it is substantially the same suggested by Mr. Redfield in his note to the case cited. 2 Redfield on Railways (4th ed.), 25. In the case at bar, then, the receipt, and, for the purposes of this action, the value of the goods, and the loss by the sinking of the boat being undisputed, and the fact being found by the referee that the loss was occasioned by the negligence of those who were running the boat, judgment was properly rendered against the defendants. We have not adverted to the finding that the express messenger was also guilty of negligence, because that finding is not necessary to support the judgment, as well as because we have great doubts whether it is supported by the evidence in the case. Judgment affirmed. NOTE. That express carriers who forward goods from place to place for hire, but in conveyances owned and managed by others, was decided in the following additional cases: Lowell Wire Fence Company v. Sargent, 8 Allen, 189; Sherman v. Welles, 28 Barb. 403; Baldwin v. The American Express Company, 23 Ill. 198; S. C. on Appeal, 26 id. 504; Read v. Spaulding, 5 Bosw. 359; Harlem v. Adams Express Company, 6 id. 235; Belger 7. Dinsmore, 51 Barb. 69; Sweet v. Barney, 23 N. Y. 335; Verrier v. Sweitzer, 32 Penn. St. 208; Southern Express Company v. Newby, 36 Ga. 635. The general owner of goods who has employed an expressman to transport them for tire may maintain an action against the carrier employed by such expressman, and who are the proprietors of a conveyance upon which the same is transported, for its loss through the fault or negligence of such proprietors or other agents. But in such case the rights of the general owner are controlled by a valid contract between the expressman VOL. II. 17 Lawrence v. The Winona and St. Peter Railroad Company. and the carrier employed by him. A stipulation, however, in such a contract that the carriers are not to be responsible, in any event, for loss or damage, cannot be construed to exonerate them for losses caused by their own negligence. This was distinctly held in the leading case of The New Jersey Steam Navigation Company v. Merchants' Bank, 6 How. (U. S.) 344; Baxendale v. Western Railway Company, 5 C. B. (N. S.) 336; Garton v. Bristol and Exeter Railway Company, 7 Jur. (N. S.) 1234; Brawley v. South-eastern Railway Company, 9 Jur. (N. S.) 399; Langworthy v. New York and Harlem Railroad, 2 E. D. Smith, 195. It is very conclusively settled that a carrier cannot discharge himself from responsibility for the consequences of his own fault or negligence, or that of his servants. See the cases cited on that point in the note to Grace v. Adams, 1 Am. Rep. 132; also Ashmore v. The Pennsylvania Central Railway Company, 4 Dutch. 180; Davidson v. Graham, 2 Ohio St. 131; Graham & Co. v. Davis, 4 id. 362; Judson v. The Western Railroad Company, 6 Allen, 486; Camden and Amboy R. R. Company v. Baldouf, 16 Penn. 77; Pennsylvania Railroad Company v. McCloskey's Administrator, 23 id. 523.-REP. LAWRENCE V. THE WINONA AND ST. PETER RAILROAD COMPANY, appellants. (15 Minn. 390.) Carriers' liability for non-delivery to connecting line. While in the absence of a special agreement a carrier is only liable to the extent of his route, and for safe storage and delivery to the next carrier, yet if he store the goods in his own warehouse at the end of his line without delivery or notice, or attempt to deliver to the next carrier, his liability as a carrier will continue. The defendants-common carriers - received for transportation, from a connecting carrier, goods marked for M., a point beyond their line. On the arrival of the goods at W., the terminus of defendants' line, they were stored in their warehouse, where they were destroyed by fire. Some time previously the defendants, for the purpose of increasing the business of their road by drawing off the freight for M. for another road to M., connecting with their road at an intermediate point, had agreed with P., another carrier, that they would deliver to him all freight consigned to M., provided he would convey it regularly and at certain rates from W. to M., and, in pursuance of this agreement, it was their custom to store all such freight in their warehouse until a load accumulated, when P. would send a team and take it. The plaintiffs' goods were so stored at the time of their destruction; but no notice thereof was given to P. nor to the consignee. In an action to recover the value of the goods, held, that the defendants were liable as common carriers. APPEAL by the defendants from a judgment rendered against hem in the district court. |