Wing v. The New York and Erie R. R. Co.

The defendants brought them on to Piermont, and there, after a delay of two days, shipped them on a barge connected with their line for New York. While on the barge they were frozen, and for the damages thus caused them this action was brought. A judgment was rendered pro forma in the Marine Court for the plaintiff, for $350, that amount being agreed on by stipulation between the partics. Judgment was rendered with costs

Euton and Davis, for the appellants.

I. If defendants can be held responsible to plaintiffs, it must be either on the ground that there is a privity between the parties, plaintiffs and defendants, so that they are mutually bound to each other upon the contract to carry safely, or that the defendants are responsible for a positive and affirmative wrong or tort committed to these goods while in their possession, that is, that plaintiff being a third person (no express contract having been made with them), the defendants, to be made liable to them, must have been guilty of a misfeasance, or positive wrong, and must be charged as a wrong-doer, and not merely guilty of a nonfeasance or omission of duty.

A. They cannot be held on any express contract entered into between plaintiffs and defendants below, for the evidence shows that the only express contract was made by plaintiffs, with the first company, by which that company received the goods, and agreed to transport them to New York, and received the compensation for carrying them the whole distance, and by which we claim they are the only parties liable to plaintiffs, if any, for the safe delivery of the potatoes in New York. Wilcox v. Parmelee, 3 Sand. 610.

B. That the Buffalo, Corning and N. Y. R. R. Co. is liable, under their agreement, for the safe delivery of these potatoes in New York, there can be no question, for it is well settled law, that, in the absence of any express contract, "if a carrier, knowingly, receive a parcel directed or consigned to any particular place, he undertakes to carry it there himself, unless he makes known a different purpose and undertaking to the owner" (1

Wing v. The New York aud Erie R. R. Co.

Parsons on Cont. p. 686), or unless a different undertaking must be implied from the known usages and customs of the business, as when a carrier has a certain and well-known route; and a fortiori they are liable in this case by their express agree

ment.

and

C. There is no express agreement between plaintiffs and defendants, neither is there any privity of contract on the ground of sub-agency between them, for the contract between the Buffalo, Corning and N. Y. R. R. Co. and plaintiffs being express, that the said company should deliver this property in New York, there can be no implied authority given by plaintiffs to said company to employ a sub-agent (to substitute or delegate). They agree to do it themselves. The relation be tween the defendants below and the Buffalo and Corning Com pany being strictly that of service, and to them the rule respon deat superior applies; for it is a well-settled rule of law that a party can be held liable to the principal (in this case the shippers) as a sub-agent, only in cases where the superior agent had power to create a sub-agency. See Story on Agency, § 201, cases cited in note 2, § 217, a; Drury v. The Manhattan Co., 2 Denio, 115. Affirmed in 5 Denio, 639. And we claim in this case that the first company has, by its express promise, deprived itself of the right to appoint a sub-agent. See Mallory v. Burrett, 1 E. D. Smith, 234. It follows, therefore, that the defendants below could only render service, and are responsible only to their principal for any negligence or omission to perform that service. Story on Agency, § 217, a, and cases cited in note 5; id. § 303 and notes 4 and 5, and cases cited; Stevens v. Babcock, 3 Barnwall & Adolphus, 354; Pinto v. Santos, 5 Taunton, 447; Lane v. Collon, 12 Mod. 488; Alexander v. Southey, 5 Barn. & Ald. 247; Montgomery County Bank v. Albany City Bank, 3 Selden, 459. On this branch of the investigation, we claim that the relation of agency or of service must be established between plaintiffs and defendants, to hold defendants liable.

D. To make defendants liable to plaintiffs, on the contract, there must have been a mutuality of obligation, and the de

Wing v. The New York and Erie R. R. Co.

fendants, in the court below, could not have recovered of the plaintiffs, in an action against them, the compensation for carrying the potatoes in question. This has been decided by many. well-adjudicated cases. Shawling v. Tomlinson, 6 Taunton, 147 Cull v. Backhouse, 6 id. 148, n; Montgomery County Bank v. Albany City Bank, 3 Selden, 459. See also Blake v. Ferris, 1 id. 48, as to responsibility of agents and servants.

E. All that defendants did in this case was, to bring the car of the Buffalo, Corning and N. Y. R. R. Co., containing the potatoes, over their road to Piermont, and then forward them to New York; they merely doing this for the first company. This, we claim, is mere service and not sub-agency, and makes the first

mpany the superior, and alone answerable to the plaintiffs. Story on Agency, § 310, note 2, says: "If the servant of a common carrier negligently loses a parcel of goods intrusted to him, the principal, and not the servant, is responsible to the bailor or owner." And the rule holds here also. See Lane v. Cotton, 12 Mod. 488, and Blake v. Ferris, 1 Selden, 48.

If we are right in this, that the Buffalo, Corning and N. Y. R. R. Co., in this case, is a superior, it follows that we are not liable to plaintiffs, for there can be only one superior for one subordinate. Blake v. Ferris, vide supra.

We certainly are liable to the first company for a non-performance, after having undertaken the service, and that company to us, for the compensation for such services.

II. The defendants below are not liable to plaintiffs below for any positive or affirmative wrong, or tort committed to these goods while in their possession; the acts complained of being solely of a negative character-a mere nonfeasance or omission of duty, for which the principal or contracting party alone is liable. Story on Agency, p. 398, § 308, and cases cited; 1 Parsons on Contracts, 87 and note a, a; Wright v. Wilcox, 19 Wendell, 343; Lane v. Cotton, 12 Mod. 488; Vanderbilt v. Richmond Turnpike Co., 2 Com. 479. And assuming the truth of our first position, that there is no privity between the adverse parties to the record, and, therefore, that defendants are not liable on contract,

Wing v. The New York and Erie R. R. Co.

we may dismiss this part of the case, for the non-liability of defendants must follow as a corollary, there being not the slightest evidence in the return of the justice showing a tortious act, or positive wrong on their part.

III. Assuming that there is a privity of contract in this case, and that there is delay which is not excused (both of which we' deny), still defendants are not liable for injury to these goods by freezing, it not being a loss resulting from the delay, but caused by vis major.

A. It is a settled rule of law that a common carrier is not liable in damages for an injury to goods, while being transported, which is not the natural and necessary consequence of the act complained of, and the general rule as to damages applies. Was bert v. The N. Y. and Erie R. R. Co., 19 Barbour, 38; Vanderslice v. Newton, 4 Com. 130; Walrath v. Redfield, 11 Barbour, 368; Sedgwick on the Measure of Damages, pp. 65, 66; Hargous v. Ablon, 3 Denio, 406; Mosier v. The U. & S. R. R. Co., 8 Barb. 427.

B. Here it will not be contended that the freezing was produced by the delay; the two are totally distinct, having no connection whatever, the one not a consequent of the

other.

C. The freezing and damage would have been precisely the same, if there had been no delay, which shows that one is not the natural result of the other. To be recoverable, the damage must flow directly from the delay. 19 Barbour, ubi supra. Here the damage is created by a totally distinct element, over which defendants have no control, and against which they can not provide. If the damage in this case had resulted from some natural quality inherent in the article (as natural decay, fermentation or the like), it might be said that the delay was one of the elements which caused the loss; but this cannot be said when the loss is occasioned by some outside influence, as frost. Besides, the evidence shows that these potatoes, if forwarded immediately, must have frozen before they could have been delivered, it being freezing weather at the time of their arrival

Wing v. The New York and Erie R. R. Co.

at Piermont, and continued so until they were delivered in New York.

IV. The judgment should be reversed, for the reason that it was not entered according to the stipulation, it being for $350 and costs, instead of $350, the amount agreed upon.

T. D. Pellon, for the respondents.

I. The defendants were liable as common carriers. They received the property and commenced its transit to New York city; and, having done so, are accountable to the owners of these goods for their safe delivery. Merchants' Bank v. The Jersey Steam Navigation Company, 6 How. U. S. Rep. 344; Chitty on Contracts, 480; Story on Bailments, 509.

II. The extent of a common carrier's liability is declared by law and fixed by considerations of public policy, independent of contract. Hollister v. Knowlton, 19 Wend. 239, and Thurman v. Wells, 18 Barb. 500.

III. The undertaking to carry the goods charged the defendants with the duty of carrying them safely for the benefit of the owners. Nolton v. The Western Railroad Corporation, 10 How. Pr. Rep. 97; 5 Sand. Rep. 180; 1 Caines' Rep. 45.

IV. The contract between the Buffalo and Corning Railroad Company and the plaintiffs, if any existed, was, in contemplation of law, a contract between the plaintiffs and defendants.

1. The law will often raise a privity when none in point of fact apparently subsists. It is enough that some benefit results from one party to the other, no matter how remote. It is sufficient that the defendants received the goods and commenced their transit to New York city, to make them privy with the plaintiffs as common carriers. In receiving the goods upon their road and commencing the transit, they undertook to carry safely to New York city, and were insurers against everything but unavoidable and inevitable accident; and, as a matter of law, they contracted with the plaintiffs to transport the goods to and deliver them to the plaintiffs' consignee in New York, pursuant to the terms of the contract. 6 How. U. S. Rep. 344 (cited above);