
    HENRY J. SHELTON, Plaintiff and Respondent, v. THE MERCHANTS’ DESPATCH TRANSPORTATION COMPANY, Defendant and Appellant.
    Before Barbour, Ch. J., and Monell and Freedman, JJ.
    
      Decided December 31, 1873.
    The. deRyeiXtV>A&T-thej:eceipt by,, a common carrier of a package plainly marked with the name and address of the person to whom the 'same is to be forwarded, is equivalent to an express written or verbal direction to the carrier to transport the package as the same is directed.
    No bill of lading is necessary to create the liability of a common carrier: the mere reception of the goods for the purpose of transportation is sufficient.
    Authority to an agent to ship the property includes the power to the agent to accept a bill of lading, containing particular exemptions from liability, and constituting a special contract in relation to the transportation of the goods ; but such acceptance should be made_at_the time, of the shipment; and where ah agent,Trader a general authority to ship goods, delivers the same to the carrier, and takes a receipt for the same, without making any special contract of affreightment, the common-law liability of the carrier is complete, and the agent’s duty fully performed; aud as to such agent’s further employment and agency, he is functus officio, and therefore, without further authority, had no power to accept a bill of lading or special contract afterwards.
    This is an appeal from a judgment entered in favor of the plaintiff against the defendant on the report of Hon. Gilbert M. Speir, referee, on the 24th day of May, 1873, for $2,076.56 damages and costs.
    
      The action is against a common carrier for negligence in the failure to deliver goods entrusted to its care, and arose under the following circumstances :
    On the second day of October, 1871, H. B. Claflin & Co. shipped by defendant certain cases of merchandise directed to plaintiff, Janesville, Wis., for which defendant gave receipts. On the same day these cases were packed by defendant in cars, and were started on their westward journey the same afternoon. These cars reached Chicago, October 7th and 8th, and were unloaded on Sunday, October 8th, and their contents, including plaintiff’s merchandise, placed in an adjacent warehouse, where they were destroyed in the great Chicago fire the next day.
    There was no dispute about the value of the goods so destroyed.
    On the trial it was proven that on the 3d or 4th day of October a boy from H. B. Claflin & Co.’s obtained bills of lading for these goods without surrendering the shipping receipts. The clerk who made out such bills of lading at that time wrote on the shipping receipts, “ Chi. 30, H. L. F.” and stamped thereon the words, “ Bill lading given October 4, 1871, 335 and 337 Broadway.” The bill of lading limited defendant’s carriage of the merchandise in question to Chicago.
    The referee found from the evidence that on the second day of October, 1871, the said merchandise was actually and completely delivered by plaintiff to the defendant at the city of Yew York, and accepted by defendant for the purpose of transportation to Janesville, Wisconsin, in the north-west portion of the United States, to.be there delivered to the plaintiff, and directed judgment for the plaintiff.
    
      Beardslee & Cole, for appellant.
    1. The right of a common carrier to limit his liability by special contract is no longer an open question in this State.
    
      2. It is also well settled that the consignor of goods has power to make contracts for their carriage and bind the consignee. Especially is this so where the consignee names the carrier (Nelson v. Hud. R. R. R. Co., 48 N. Y. 498).
    This rule, where the consignee names the carrier, appears to proceed upon the ground that the consignee knows the usages of the carrier named by him, and is - willing to contract in' accordance with them.
    3. There can be no doubt under the evidence in this case that if the bills of lading in evidence' had been given to and received by H. B. Claflin & Co., at the time the goods in question were shipped, they would form the contracts in this case for the carriage of the goods (Long v. N. Y. C. R. R. Co., 50 N. Y. 76; Belger v. Dinsmore, 51 N. Y 166 ; Blossom v. Dodd, 43 N. Y. 264 ; Hopkins v. Westcott, 6 Blatch. 64 ; French v. Buff, N. Y. & E. R. R. Co., 4 Keyes, 108; Grace v. Adam’s Ex. Co., 100 Mass. 105).
    4. It is submitted that under the evidence in this case the effect of these bills of lading is the same as though they had been received by H. B. Claflin & Co., when the goods were shipped.
    They had been large shippers of goods by defendants. It had always been their custom to obtain bills of lading therefor. The referee refuses to find this fact as immaterial, not as not established by the evidence. The evidence clearly establishes this fact. They themselves sent and obtained these bills of lading. They probably mailed them to the plaintiff. There is no evidence that the plaintiff or H. B. Claflin & Co. were ignorant of the terms of these bills of lading. They are therefore the contracts in this case (Bishop v. Empire Trans. Co., Special Term Superior Ct., opinion by Van Vorst, J., filed April 18, 1873).
    
      It is thought that no case can "be found to the contrary, except those where a prior verbal contract has "been made and then "bills of lading given containing different terms, no assent being given by the shipper to the change.
    The case of Bostwick v. Balt. & Ohio R. R. Co. (45 N. Y. 712) is in point. In this case there was a verbal agreement as to the carriage of some goods. The goods were delivered, depot receipts taken, and afterwards bills of lading received varying in terms from the verbal agreement. The court held that after the goods were shipped, the mere receipt of a bill of lading and inadvertently omitting to examine its conditions would not defeat the prior verbal agreement. The depot receipts were not regarded as the contracts. The prior verbal negotiations only were considered.
    But the court further held that if the shipper had assented to the terms of the bill of lading it would then have formed the only contract. In the present case the shippers themselves applied for contracts and received them without objection, and there had been no prior verbal negotiations whatever. This, independent of their custom, constituted an assent to the terms of the bills of lading under the ruling in Belger v. Dinsmore supra). ■
    
    5. The manner in which H. B. Claflin & Co. treated the depot receipts and bills of lading shows the purposes for which they were respectively taken. The depot receipts they themselves retained. They were given and received merely as evidence of delivery. That something further was contemplated is evident from the uniform dealing between the parties. H. B. Claflin & Co. presented these depot receipts to the defendants, had the rates of carriage fixed, and asked for and received the bills of lading. These they mailed to their consignees. The consignees were the owners of the goods and interested in the contracts of carriage. For them were made the contracts, evidenced "by the bills of lading. H. B. Claflin & Co. desired to keep some memorandum for themselves, and for this purpose retained the depot receipts. The only contracts made were those evidenced by the bills of lading.
    3. It is claimed by the plaintiff that the authority of H. B. Claflin & Co. to make a contract and bind him ceased after the goods were delivered to and received lay the defendants. It is submitted that the whole transaction was one, and that under the custom of the parties, in the absence of any proof, as to the specific case, - the plaintiff would be bound by the terms of defendant’s bills of lading, even though in this particular case H. B. Claflin & Co: had not taken any at alL
    7. The defendants are not liable if the loss in question happened through the act of God.
    Great confusion results from the long use of general ¡terms to which no definite meaning can be attached. When extraordinary violence of nature is exhibited we commonly ascribe the manifestations to God, as though it were His direct interposition. All we mean is that an irresistible power has overtaken us, apart from human agency and beyond the possibility of collusion on our part.
    If we look for the reason why carriers have been excused from losses occasioned by the act of God, or the public enemies, we shall find that it is simply because these losses did not proceed from their own negligence .mor from causes at which they could have connived, and that their own strength and vigilance were insufficient to protect them.
    Thus in Colt v. McMechen (6 Johns, 166) Kent, J., says : “A common carrier is only to be excused from a loss happening in spite of all human effort and sagacity,” and it was held that a sudden failure of the wind "whereby a vessel tacking was unable to. change her course and went ashore was an act of God.
    And in Williams v. Grant (1 Conn. 487), it was held that the striking of a vessel upon a rock not generally known, and not known to "the master, was an act of God. It has also been held that running on a shifting' sand-bar of which the master had no knowledge, and which was produced by the current of the stream, was-an act of God.
    In Roll Abr. 808, pi. 6, it is said, in speaking of what shall excuse an escape, “ So if the prisoners escape by sudden fire, this shall excuse the escape, for this is the act of God.”
    
    In Dyer 66, b. 15, it is said, “If he plead that the prison was broken by the enemies of the King, or by sudden fire, which is the act of God, or by such force or vehement power that "he could not resist, this is good matter.”
    The court can take judicial notice of the Chicago fire and its general characteristics. The violent wind, aided by previous drouth, spread the fire over vast areas in spite of the most strenuous use of all means which experience had hitherto proved to be sufficient. The rapidity of the fire and the distance of defendant’s depot from its starting-point appear by the evidence. TsTo possible vigilance and prudence on defendant’s part could have averted the disaster.
    The original kindling of the fire, more than a mile from the defendant’s depot, is too remote and distant to-be connected with the burning of the depot. Causa próxima non remota spectatur. The proximate cause of the destruction of the depot was the high wind driving the flames against the buildings (Story on Bailments, 525, § 515 ; Waters v. Merchants Louisville Ins. Co., 11 Peters, 213, 223).
    The case is analogous to that of a shipwreck in which. - the wind is the agent and the water the means of destruction.
    Though it is admitted that the cases go far to hold that the carrier insures absolutely against the burning of the goods, unless by lightning, it is believed that no case has been decided holding the carrier liable where, as in this instance, the hypothesis of collusion was entirely excluded.
    The rule excluding fires, other than those kindled by lightning, from the category of causes of loss arising from the “ act of Gfod,” is a “ general law ” for all “ common cases ” (Angell on Carriers, § 156), and does not govern the present case.
    It would be difficult to find a case in which there are more equities in favor of excusing the carrier than are to be found in the present case.
    Wo law or public policy demands that the carrier should be subjected to rules which are against our plainest sense of justice.
    Arnoux, Ritch & Woodford, for respondent.
    
      Wm. Henry Arnoux, of counsel.
    1. The liability of the defendant to the plaintiff for the safe transportation and delivery of the goods in question was fixed on the second day of October, 1871, by its receipt and acceptance of the goods and its delivery to plaintiff’s agent for that purpose of a receipt for the goods to be delivered at Janesville, Wisconsin.
    The defendant admits the following facts to be correctly found in the third, fourth, and fifth findings of fact of the referee: That 'the merchandise was on said -day actually and completely delivered by plaintiff to •defendant at the city of Wew York; that on said day defendant took charge of and assumed all control over said property and placed the same in cars, which were, forthwith started1 on their journey westward ; and that the receipt delivered "by defendant to plaintiff in no respect limited its liability as common carrier. The defendant simply excepts in those findings to the determination of the referee—that there was ho special or conditional acceptance of said goods, and that they were accepted by defendant for delivery at Janesville. The referee refused to find that the papers given by defendant were only given as evidence of a delivery, and to enable them to obtain bill of lading.
    So, under the unquestioned findings of the referee,, if the defendant is a common carrier, the delivery was absolute and the liability of defendant as common carrier unlimited. There was nothing in the testimony to show any qualified or conditional acceptance of the-goods by defendant, and therefore, as matter of law, the liability of the common carrier attached when the property was deposited with it for transportation (Blossom v. Griffin, 13 N. Y. 569 ; Grosvenor v. H. R. R. R., 39 N. Y. 34; Nelson v. H. R. R. R., 48 N. Y. 504; Lamb v. C. & A. R. R.; Long v. N. Y. Central R. R., 50 N. Y. 76).
    
      2. This liability of defendant to plaintiff, as a common carrier, is not in any respect modified by any subsequent act.
    1st. As matter of fact, no authority to accept any modification of the contract by Claflin & Co. on behalf of plaintiff was shown, and in law none- can be presumed. Claflin & Co.’s whole authority was to ship the goods to plaintiff by defendant’s line.
    2d. As matter of fact, no modification of the original contract was made. The acceptance by Claflin & Co. of any number of bills of lading, varying the terms of the original undertaking, would not affect any modification of it unless they surrendered the original undertaking,, or accepted such subsequent instrument as a modification thereof.
    
      3d. Even, if there had been such intent there would have been no consideration for such modification (Corey N. Y. Cent. R. R., not reported, cited 45 N. Y., 716).
   By the Court.—Barbour, C. J.

The only power-given by the plaintiff to H. B. Claflin & Go. in regard to the shipment of the goods which are the subject-matter of this action, was contained in the direction to ship the same to him at Janesville, Wisconsin, by the defendant’s line, and that authority or agency was fully and completely exercised and performed by Claflin & Co. on the 2d of October, by delivering the goods to the defendants at their depot, duly marked “ H. S. Shelton, Janesville, Wis.,” and by taking the receipts of the defendants for the same. This mark upon the boxes sufficiently showed the place to which the property was to be carried and the person to whom it was to be delivered there, and was equivalent to an express written or verbal direction to that effect, and so it must be assumed, in the absence of evidence to the contrary, the defendants understood it, for they immediately sent the goods forward towards their place of destination.

Ho bill of lading is necessary to create the liability of a common carrier. The mere reception of the goods for the purpose of transporting them is sufficient. There is no doubt, however, that the authority given to Claflin & Go. to ship the property to the plaintiff included also the power to accept a bill of lading containing particular exemptions from liability and constituting a special contract (Nelson v. Hud. R. R. R. Co. 48 N. Y. 498). But that should have been done or agreed •upon at the time the goods'were received by the defendants for transportation. When the goods had been delivered, and the employes of Claflin & Co. took their receipts and went away without making a special contract, the common-law obligation of the defendants as carriers was complete, and Claflin & Co., having fully performed their duty to the plaintiff, had become, as to their employment or agency, functus officio, and of course had no right or power to convert the common-law liability of the carriers into a special contract, by the acceptance of bills of lading at a subsequent time.

Besides, even if it could be conceded that Claflin & Co. had the power, under their employment, to accept bills of lading containing special exemptions in favor of the carriers after their common-law liability had attached, it is quite clear that an employment to ship the goods to the plaintiff at Janesville did not empower Claflin & Co. to accept bills of lading by which the defendants undertook to transport the property only as far as the depot in Chicago. That was not within the terms of their agency.

The acceptance by Claflin & Co. of the alleged bills of lading therefore did not affect the rights of the plaintiff nor release the defendants from any portion of the common-law liability which they had assumed as carriers, and it follows that the decision of the referee was right.

The judgment appealed from should be affirmed, with costs.

Monell and Freedman, JJ., concurred.  