ultimate carriers are regarded as coming within the fair construction of the restrictive clause in the receipt, then it will not avail the defendants, for the reason that it cannot properly be so construed as to cover defaults resulting from neglect of duty, in regard to proper care. New Jersey Steam Navigation Co. v. Merchants' Bank, supra. 6. The same remark is true of the proposition, that a restrictive clause in the bill of lading or receipt, given by the carrier, will not be construed to exempt him from responsibility for loss occasioned by negligence in the agencies employed by him, unless such intention is very clearly expressed in such instrument; it comes short of the true rule of law upon the subject. The better opinion, we think now is, that no person, natural or corporate, shall be allowed to stipulate for exemption from responsibility for his own negligence, because that removes one of the most direct and effective motives for faithful conduct, and such a contract would, therefore, be against sound policy; it is equivalent to allowing one to contract for license to do an immoral or an unlawful act. The license is void, and revocable at any time, and the promised reward being the price of an act contra bonos mores, is not enforcible in a court of justice. Redfield on Railways, § 160, pl. 5; McManus v. Lancashire Railw. Co., 2 H. & N. 693; s. c. 4 Id. 327. In this latter hearing, before the Exchequer Chamber, the opinion of the Court of Exchequer was reversed, and all such contracts as professed to excuse the carrier for the neglect of duty by his servants, were held to be unreasonable and void under the English statute, 17 & 18 Vict. chap. 31, s. 7. See also Redfield on Railways, § 160, notes 9-17, and §§ 161, 167, and notes, where these questions are very extensively considered. In conclusion, we must repeat, that we have been gratified with the careful and unexceptionable manner in which the principal case is studied and reasoned out, in all its bearings; and although we have felt compelled to declare our opinion, that the propositions stated in the opinion of the court fall short of the ultimate truth upon those points, they clearly cover the case, and that is all the court could decide. We do not like to make invidious comparisons between the opinions of courts in different sections, but we must say, if lawyers look at the decisions beyond their own state, they should not overlook California. SECTION IV. Rights and Duties of Express Carriers. 1. Liable for not making delivery to con signee. higher than others, or give one such carrier exclusive privileges. 2. Contract of company with local carriers 6. Responsible for not causing proper protest only temporary. of bill. 3. Cannot charge in proportion to value of 7. Primâ facie only responsible to end of his parcels, and restrict their liability. 4. Not responsible beyond their routes. 5. Company, where statute prohibits discrimination, cannot charge express carriers § 154. 1. This is a mode of transportation which has come in practice very much, since the general use of railways for transportation. * It seems more necessary on account of the rapidity of movement upon such roads, and also the mode in which business is generally transacted by railway companies, of only delivering at their stations. Express companies, and agents, as far as we know, receive parcels at their offices, not only at their principal termini in the large towns and cities, but at local offices along the line of their routes, and even send their wagons about the cities and towns to gather up parcels when notified to do so, and adopt a similar course in delivering out parcels at the doors of the dwellings, or places of business, of the consignees. This mode of transacting the business of expresses seems to come in the place of the general carrying business of parcels;1 or, accord 1 In a recent case in South Carolina, Stadhecker v. Combs, 9 Rich. 193, which was a suit against an express company for the value of a trunk lost by them, it is said: "A strict application of the law of common carriers is necessary for the protection of the large amount of property committed to the hands of strangers for transportation to distant points, and certainly, from such an application, express companies have no claim to exemption." And in Sweet v. Barney, 24 Barb. 533, it was held, that the party to whom money was sent by express might direct the place and mode of delivery. Hence, a bank in the city, to whom money is sent by bankers in the country by express, being considered the owner of the money, may authorize the same to be delivered at the office of the express company, or at any other place in the city, to any person it may select; and the express company, by making such a delivery, will be relieved of their responsibility, whether it be that of common carrier or forwarder. All the express company is bound to do in such cases is to make such a delivery as will charge the consignee. In the absence of all special provision, in such cases, it is the duty of ing to the definition of the English Carriers' Act, of things of great value in small compass. And there can be no question that, upon general principles, these expresses are liable as common carriers, and liable, according to the course of their business, and the expectation thereby created in the mind of their employers, for all parcels received into their wagons, and bound to make personal delivery to the consignees or to their agents, at their places of business, or, in default of having such, at their residences. And since the establishment of such expresses, it will be presumed that one who expects a parcel to be delivered personally, or notice given to the consignee, will intrust it only to the express upon the route, and his giving it in charge of the the express agent to deliver the money at the bank, to the proper officer. And where it is the practice of such companies to deliver packages, according to their address, it will be presumed that they assume to deliver all packages committed to their custody in that mode. And in such case the only delivery which will charge the bank or release the express, is a delivery according to the address of the parcel, at the bank, to the proper officer. But where the express delivers the money to a porter, at their office, who had usually been employed by the bank to receive such packages for them, it is not sufficient to discharge the express, unless such delivery was authorized by the bank; and it is incumbent upon the express to prove such authority in its own discharge. This proof may be direct and express, or implied from the acts of the porter, such as receiving money for the bank on other occasions at the express office, sent to it in a similar way and a similar address with the one in question, and with the knowledge and assent of the bank, provided the testimony is sufficient to satisfy the triers of the fact, that the bank authorized the porter to receive the money on their behalf, or that, from the manner in which they allowed him to conduct business on their behalf, they were bound to suppose others might understand that he was authorized to so act on their behalf, and that the express company did so understand it. The Am. Railw. Times, Feb. 1858, speaks of a newspaper report of a recent decision in Wisconsin, wherein it was held that a tender of money carried by express, at the bank, at any time, although not in banking hours, will discharge the company from their responsibility as common carriers, and from all liability, the money having been stolen from their safe during the following night, without their fault. There is probably some misapprehension in regard to the point. upon which the case was decided; for a tender at a bank, out of known and recognized banking hours, is obviously no tender at all. One might as well make a tender to a merchant at midnight, after the store was closed. But it was held that a tender after sundown, if made personally to the party, at his place of business, is good. Startup v. Macdonald, 6 M. & G. 593. So, too, a tender at a bank, while open and the officers in, might be good, although after banking hours. See Marshall v. American Ex. Co., 7 Wis. 1. general freight agent of the railway is equivalent to an express contract, almost, that the company shall only be bound to such a delivery as is according to their general course in this department of their business. For, by delivering the parcel to the express, the owner not only secures the responsibility of the express company or agent, but also of the railway company, unless they have stipulated with the express for some exemption from their ordinary common-law liability as carriers, in the transportation of the business of the express, and this is made known to the owner of goods so sent. These propositions result from the elementary principles of the law of bailment, and are recognized by the bestconsidered cases.2 And it must result from some agency beyond the control of the agents and employees of the carrier. And therefore a railway company is liable for loss caused by the delay of transportation caused by the refusal of the company's engineers to work, although such conduct could not have been foreseen, and the places of such engineers supplied in time to save the loss.3 Under a written contract, by which the owners of a steamboat bound themselves as common carriers to deliver certain goods at a specified point, the loss of the goods by fire after having been deposited in a warehouse at the highest point to which, on account of the low stage of the water, the boat could ascend the river, does not excuse the defendant's failure to deliver the goods at the specified place. And carriers of cotton, which was stored on the forecastle with the sacking torn and the cotton exposed, and there set on fire by carrying torchlights upon the boat, according to the usual custom,5 were held liable for its loss. 4 Indeed, in all cases where it is shown that goods are put in charge of a common carrier, in apparently good condition, and are found subsequently in a damaged state, the carrier is primâ facie responsible for the loss.6 In an important case which recently occurred, where a pack 2 N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. 344. Blackstock v. N. Y. & Erie Railw., 20 N. Y. R. 48. * Cox v. Peterson, 30 Ala. R. 608. Hibler v. McCartney, 31 Ala. R. 502. Fenn v. Timpson, 4 E. D. Smith, 276; Hall v. Cheney, 36 N. H. R. 26. ' Baldwin v. The American Express Co., 23 Ill. R .197. age of money was delivered to an express company to carry into another state, for the consignee to whom it was to be delivered, it was held, that where the company had been accustomed to enter all packages upon a delivery book, and to take a receipt upon delivery, the fact that no such entry has been made upon the delivery book tends to rebut any presumption of delivery. That express companies are responsible as common carriers, and are ordinarily to be regarded as undertaking to make delivery to the consignee, and they are primâ facie liable unless such delivery is made, unless where the business is too limited to justify keeping a messenger to perform such act of delivery, and in such cases prompt notice should be given to the consignee of the arrival of the package. The undertaking of such express company ordinarily implies an actual delivery to the proper person at his place of business; and in no other way can the company discharge itself of responsibility except by proving performance of its undertaking, and that it has been prevented by the act of God or of the public enemy. And in the same case in a later volume, it was held that the company will be responsible for the loss, when it appears that it occurred from not keeping the key of the company's safe securely, whereby it was obtained by one who stole the key and the money by thus gaining access to the safe. And that where it appears that the company had delivered packages before entry upon the delivery book, it must nevertheless be shown that the company had in fact actually delivered the parcel in question, or at least offered to deliver it, at the proper time and place, in order to relieve itself from responsibility as common carriers. 9 * 2. It was held, in a recent case, in the English Court of Exchequer, that a contract between a railway company and an individual, that he should, for a twelvemonth, carry all grain, merchandise, &c., between certain points to and from the railway, • American Express Company v. Baldwin, 26 Ill. R. 304. ' Burton v. The Great N. Railway, 25 Eng. L. & Eq. 478. But the verdict in this case, at the trial before Martin, B., was for the plaintiff, on the ground that the company impliedly bound themselves not to do anything, during the term the contract was to run, to deprive the plaintiff of the ordinary cartage between those points. And it seems to us the decision of Baron Martin is quite as satisfactory as that of the full bench. VOL. II. 3 * 241 |