Ala. & Tenn. Rivers Railroad v. Kidd

R. W. WALKER, J.

If goods, transported by railroad, are not called for by the consignee when they arrive at their destination, and are then deposited in the warehouse of the company without additional charge, until the owner or consignee has a reasonable time by the exercise of proper diligence to remove them, the liability of the company, as a carrier, is at ,.an end ; and if, after this, the goods remain in their warehouse, they are responsible only as keepers for hire. The same company may thus, under one and the same contract, be subject to the distinct duties of carriers and warehouse-men, for a failure in which they are liable to different degrees of responsibility. While holding the former relation, they are insurers against all losses, except those occasioned by the act of God or the public enemies. In the latter relation, they are responsible only for losses occasioned by their want of such care as is required' of ordinary bailees for hire. — Norway Plains Co. v. B. & M. R. R., 1 Gray, 263; Thomas v. Boston & P. Co., 10 Metc. 472; McHenry v. Phil., W. & B. R. R., 4 Harring. 448; Redfield R. R. 253-4; Pierce R. R. 435, 448; Moses v. Boston & M. R. R., 32 N. H. 523; 1 Parsons Con. 671.

The precise point of time at which the company cease to be carriers and begin to be warehouse-men, is a question upon which the -authorities are not uniform, and into the discussion of which it is unnecessary for us to enter. See 1 Gray, 263, 274; 32 N. H. 523; Redfield, 253-4-5 ; Pierce on R. R.- 438, 443.

But, however common or convenient may be the prac *218 tice of having warehouses for storage, as accessories to the business of the road, it cannot be said that the company are under an absolute duly to erect or keep them. Redfield, 254. And if they in fact keep no such warehouse at the point to which goods consigned to the owner ■or a third person are sent, it seems that the duty of the company is performed, and their responsibility at an end, if, after carrying the goods to the place of destination, and keeping them safely for such a length of' time as to afford the owner an opportunity, by the use of due diligence, to remove them, they deposit them in the warehouse of a responsible person, for and on account of the owner or consignee. In such a case, the warehouse-man with whom the goods are stored, becomes tlie agent or bailee of the owner. It must be remembered that, in contracts for the carriage of goods, tlie obligation is not all on one side. It is as much a part of the contract, that the owner or consignee shall be ready at the place of destination to receive tlie goods when they arrrive, or within a reasonable time thereafter, as that the carrier shall transport and deliver them. -If, however, the consignee is dead, or absent, or fails to receive the goods, tlie carrier is not justified in abandoning them; unless, perhaps, (for even this is by no means clear,) where the consignee, after actual notice of the arrival of the goods, refuses to receive them. — See Fisk v. Newton, 1 Denio, 45 ; Smith v. Nashua R. R., 2 Foster, 86; Hemphill v. Cheiue, 6 W. & S. 62; Pierce R. R. 448-9; 1 Parsons Con. 660. On the contrary, it is his duty to secure them for the owner. He may, if he so elect, keep them as a bailee on deposit; or, if he has come under no obligation, either by the terms of his agreement, or the course of business, to hold the goods as bailee, he has the right to leave them in store with some responsible third person, and thus discharge himself from all further liability. Clendaniel v. Tuckerman, 17.Barb. 189; Ostrander v. Brown, 15 Johns. 39; Goold v. Chapin, 10 Barb. 612; Fisk v. Newton, 1 Denio, 45 ; Crawford v. Clark, 15 Ill. 566; Angell on Carr. § 291; 1 Parsons Con. 660; Pierce R. R., 449.

*219 In the present ease, the proof shows that, when the contract was made, the company kept no warehouse for storage at Selma; and, according to the rules just stated, if the appellee’s cotton had been consigned to the owner, or to some third person, and the consignee had failed to come forward and secure it after a sufficient time had been allowed for that purpose, the company would have been authorized to store it, for and on account of the owner, in the warehouse of some responsible person, who would thereupon have become the bailee of the owner, and to whom alone he could have looked for losses or injuries thereafter occurring.

But the contract of the company was to deliver the cotton to their own agent. Under this contract, are their liabilities and duties no greater than they would have been if the obligation had been to deliver to the owner, orto some third person named as consignee? In the absence of any usage or custom giving a different effect to this agreement, we think that we carry out the intention of the parties, by holding that the company imposed upon themselves, not only the duty of carrying the cotton to Selma, but also of holding it safely after its arrival there, until called for by the owner, and of delivering it to him on demand. Eor the performance of the former duty, they were responsible as carriers; and for the discharge of the latter, they were liable as warehouse-men. By contracting to deliver to their own agent, they impliedly agreed to act as the consignees of the owner; and thus bound themselves to take care of the cotton'for him, as his bailee, after its arrival in Selma. If we do not adopt this construction, then the duties of the company were precisely the same as if the cotton had been consigned to the owner himself, and no special purpose was either designed or accomplished by making the agent of the company the consignee. The extent of the obligation assumed by the company being such as we have stated, it follows that when their agent, after the delivery of the cotton to him, deposited it in the warehouse of Adams & Co., the latter became, quoad this particular cotton, and as between the owner and the railroad, the *220 agents and servants of the-company; and if, by their mistake, the cotton was delivered to one who -wasnot authorized to receive , it, the company would be responsible to the owner. — Lechtenheim v. Boston & P. R. Co., 11 Cushing, 70; Bullard v. Young, 3 Stew. 46.

[2.] Trover will not lie for a bare non-delivery of goods by a warehouse-man,- unless they are -in his possession, and he refuses to deliver them on demand. In like manner, trover will not lie for goods lost or stolen by the negligence of a warehouse-man. But, where he is an actor, and delivers them- to a third person, though by mistake, the action lies. — Devereux v. Barclay, 2 B. & Ald. 702; Youle v. Harbottle, Peake’s N. P. C. 49; Packard v. Gettman, 4 Wend. 613; 2 Saund. Pl. & Ev. 1159; Story on Ag. §§ 452-3; Smith on Master and Servant, 51-4.

[3.] When this case was hero before, it was.held, that it was competent for the company to prove .that it was their custom to deposit freight, transported by the road and consigned to their agent, in the warehouse of Adams & Co.; and that if such custom existed, and was proved according to the rule governing in questions of that description, it might relieve the company from the,liability which would otherwise rest upon them, for the loss of the cotton in the hands of their agent. — Ala. & Tenn. R. R. v. Kidd, 29 Ala. 221. The evidence, all of which is set out in the bill of exceptions, wholly fails to establish any such custom or usage as can be looked to- in, the interpretation of contracts. Usage, to be binding, must be of such duration, so -clearly established, and so generally known and acquiesced in, that the pai’ties must be presumed to have contracted with reference to it. — Steele v. McTyer, 31 Ala. 676; Crawford v. Clark, 15 Ill. 567; Dixon v. Dunham, 14 Ill. 324; Angell on Carr. § 301. The fact that the company had been, for about a month, in the habit of storing cotton consigned to their agent, in the warehouse of Adams & Co., without any proof that this was generally known, or any other evidence that the appellee had notice of it, cannot be sufficient to establish a custom which must be deemed to have entered into the contract made between the parties to this suit.

*221 Considering the charges given, and those refused, with 'reference to the evidence before the jury, we find no error in the rulings of the court.

The judgment is affirmed.

A. J. Walker, C. J., being a stockholder in the Alabama and Tennessee Rivers Railroad Company, does not sit in this case.