Gibson v. American Merchants' Union Express Co.

Upon the facts stated it cannot be doubted that plaintiff should be held, in law, to have known the contents, of the receipt made out by his clerk upon blanks for his daily use. Nor can it be doubted that a common carrier, in ordinary cases, would not be responsible, under such receipt, for loss or damage to property after its safe delivery to the next connecting carrier, according to the usual course of business. Reed v. U. S. Exp. Co., 48 N. Y. 482.

*503The letters C. O. D., and the contract thereby expressed, do not, in my judgment, change this shipment from one of an ordinary character, until the collection shall, in fact, have been made. The duty to transport is precisely the same, and so of a tender of delivery. If the consignee 'neglects or refuses to take the property and pay the money, the property remains in the carrier’s hands as a warehouseman, precisely as if no money besides the express charges were to be collected. In either case the carrier is responsible only for a loss caused by its negligence. Weed v. Barney, 45 N. Y. 344. If this be true, the defendant was not liable for loss after delivery to the Adams Express Company under the facts in this case.

But in this case it may well be doubted if the defendant would have been liable had its route run to Malden, West Virginia, and the loss happened, as appears by this evidence, in defendant’s own office at that point. It is not shown when the box arrived at Malden, or when it was tendered to the consignee and refused by him. After such refusal, it was the duty of the carrier to keep the property as a warehouseman. But very soon thereafter, and before advice could have been obtained from the plaintiff, the office and box were burned. It may be claimed the carrier was not bound to notify plaintiff in the absence of contract or direction. Weed v. Barney, 45 N. Y. 347, 348. If the carrier became a warehouseman, by the refusal of the consignee to accept, he could only be made liable for his negligence. Eegligence cannot be presumed, but must be proven after ■ proof of the destruction by fire, and after tender, as in this case. Bush v. Miller, 13 Barb. 481; Schmidt v. Blood, 9 Wend. 268. Now, it seems plain that the express company became a warehouseman, and as there is no proof that the fire was caused by its negligence, it could not justly be held responsible.

Upon both grounds, I think the judgments of the county court and of the justice’s court should be reversed, with costs.

Judgment reversed.