
    Ladue et al. v. Griffith et al.
    
    A warehouseman at Buffalo was also' a carrier on the Erie canal, and used to receive freight from the west and forward it to the east by the first boat going, whether his own or that of other carriers. He received goods shipped from Detroit addressed to his care at Buffalo and marked “ to go from Buffalo to East Albany, at 30 cts. per 100 lbs.” The presumption from these facts alone is that the goods came to his possession as a carrier, and having been burned without his fault while in his warehouse awaiting transportation, he is liable for their value.
    Public policy in this country of long routes and«frequent transhipment forbids any intendment which would favor an intermediate carrier in divesting himself of that character and assuming the more limited responsibility of a forwarder.
    Appeal from the Supreme Court, where the plaintiffs sought to recover damages on account of the destruction of a parcel of leather which, they claimed, had been entrusted to the defendants, as common carriers, and which was destroyed by an accidental fire, in the defendants’ storehouse at Buffalo, on the 4th of July, 1851. The trial was before a referee, who found, these facts: The plaintiffs were the owners of twenty-seven rolls of rough leather, and in the latter part of June, 1851, they caused it to be shipped at Detroit, on board the steamship Hudson, bound for Buffalo, to be transported east, accompanied by a document in the form of a bill of lading. This paper specified the property, and,stated the charges of the forwarding agent at Detroit at $1, that the lake freight was $4.04, and that it was to go from Buffalo to Bast Albany at 30 cents per 100 lbs. It was addressed, in the margin thus : “ Leander Warren, Leicester, Mass., via Clappville Depot. To be - delivered at Bast Albany; care J. M. Griffith & Co., [the-defendants] Buffalo.” It did not appear to be signed by the master, or by any one, except H. M. Strong, the forwarder at Detroit.
    The defendants’ place of business was at Buffalo, "where they were engaged in transportation on the Erie canal from that city to Troy and Albany. They were also forwarders and warehousemen, and they were accustomed to receive daily, from the west, property consigned to them in the same manner as the leather in question, and to ship the samé to its destination at the east by their canal line, or by other boats on the canal, whichever left first. On the arrival of the vessel from Detroit, on the first day of July, the leather was taken to the defendants’ storehouse, and they made an indorsement on the bill of lading as follows: “ Received and paid charges, John M. Griffith & Co.” It remained in the storehouse until it was burned as before mentioned.
    The defendants insisted that, as to this property, they were storehouse keepers and forwarders, and'not common carriers. The referee held with the defendants on that question, and reported in their favor, and the judgment being affirmed at a general term, the plaintiffs appealed to this court. The ¿ase was submitted on printed points.
    
      Solomon G. Haven, for the appellants.
    
      John L. Talcott, for the respondents.
   Smith, J.

When the property in question was delivered on board the steamboat at Detroit, marked and consigned to Leander Warner, Leicester, Massachusetts, it was so delivered for transportation to that place.

It was known to the shipper, doubtless, that the steamboat Hudson could carry it no further than Buffalo; and it was therefore consigned to the care of the defendants at that place, who were carriers upon the Erie canal, to be carried or forwarded by them by canal, in the regular course of business, to Albany, and then to deliver the same at East Albany, at the railroad depot, to be further transported by the Western Bail-, road Company, via Clappville depot, to Leicester, Massachusetts. The direction upon the bill of lading, consigning the leather to the care of the defendants at Buffalo, made it the duty of the master of the steamboat to deliver it to them, and gave them the right to receive it from him; and thus secured to the defendants the profits incident to the transhipment, storage and carriage of the property, until its transportation by canal was completed, and the property delivered at the railroad depot at East Albany.

No right or duty in respect to such property was conferred by the owner upon any person, after its delivery on board the steamboat at Detroit, except that of carriage, and such as was incident to its transportation, until its delivery to the consignee at Leicester, Massachusetts. The proprietors of the steamboat Hudson received it as carriers, and so. did the defendants, subject, respectively, to all the duties and responsiblities of common carriers.

These goods were placed by the defendants in their warehouse, for their own convenience and for the purpose of being carried; and when goods are so stored, the carrier is responsible for.their safe keeping. (Angell on Carriers, § 131, p. 130, and § 144; Story on Railroads, 536.)

The owner of this property had no occasion to have th'e same placed in a warehouse at Buffalo for any purpose except such as pertained to its safe keeping during its transportation. It was not intended to be stored in warehouses at Buffalo for any purpose. It might doubtless have been transferred immediately from the steamboat to some canal boat at Buffalo; but if the defendants chose for any purpose to put it in their warehouse, it was to subserve their interests, and was at their own risk. The claim of the defendants to escape responsibility for the loss of these goods, upon the ground that they were simply warehousemen, and received them in that capacity, we think entirely-untenable.

When a person is both carrier and warehouseman, it is well settled that, if the deposit of the goods in the warehouse is a mere accessory to the carriage, and not subject to any particular order of the owner, or if they are deposited for the purpose of béing carried further, the responsibility of the party having them in charge is that of' a carrier. (Ang., § 133, and Blossom v. Griffin, 3 Kern., 569, 572.) But when goods are deposited in a warehouse subject to the further order of the owner, the case is otherwise. In such case, as Judge Buller said, in Garside v. The Proprietors of the Trent and Mersey Navigation Company (4 Term, 581), “ The keeping of the goods in the warehouse is not for the convenience of the earner, but of the owner of the goods. In such case, the rights and duties and responsibilities of warehousemen would attach to the person having the goods in store.” But this rule cannot apply to any person having the charge or custody' of the goods while they are in transitu. While the goods are in the process of transportation from the place of their receipt to the place of their destination, it will never do in this country, in my opinion, to subject them, in the hands of any carrier, or by his act or order, to the responsibilities of a mere warehouseman. The carrier at common law is an insurer of the goods as against all accidents and perils, except such as result from the act of God or a public enemy. A warehouseman is only responsible for ordinary care, and is merely responsible for loss or injury resulting from his own default or negligence. Millions of property in value in this country is in the constant possession of carriers engaged in- transporting it from one place to another. In this particular, it may truly be said that men cast their bread upon the waters, expecting to see it again ,at a distant point after many days. Goods are shipped, and delivered to carriers by land, at the seaboard or in the interior of the country, for transportation to distant points, with a simple direction- indorsed of the name of the owner or consignee and the place of delivery. It would never do to hold _ that at any intermediate point such goods, at the option of a carrier, might be stored in a warehouse, and the carrier relieved' thereby of his proper responsibility. If the defendants had owned the steamboat in which these goods were shipped at Detroit, .no one would pretend, I think, that they could store them at Buffalo in a warehouse, at the risk of the owner, for their own convenience.

I conceive the responsibility of the defendants, in respect to these goods, after they came in their possession, precisely the same, so far as related to their storage at Buffalo, as though they had been carriers for the whole distance from Detroit to Leicester, Massachusetts. Where there are several successive carriers who are engaged in the transportation of goods from the place of their reception to the place of their destination, the liability of each carrier will commence with the reception of the goods, and will continue until they are delivered, according to the usage of the business, to the next carrier in the line of the transit. (Vanhouten v. St. John, 6 Hill, 158.) When a carrier deposits property in his own warehouse at some intermediate place in the course of his own route, or at the end of the route where it is his duty to deliver it to the owner, his duty as carrier is not completed, and he will remain liable as carrier for any loss for which common carriers are ordinarily responsible. (Story on Bailments, § 447, 536; Forward v. Pittard, 1 Term, 27; Hyde v. Trent Navigation Company, 5 id., 380.) The defendants, I think, are responsible as carriers of the property in question upon the same principle. It was received and stored by them in their capacity or character as carriers as much as if they had received it at Detroit.

. I think the judgment of the court below should be reversed, and a new trial granted, with costs, to abide the event.

Davies, Wright, Selden and Sutherland, Js., concurred.

Denio, Ch. J., (dissenting.)

The defendants’ liability depends upon the character in which they held the property at the time of its destruction by fire. If their possession was that of common carriers, they were insurers' against loss by an accidental fire, that loss not being embraced in the two well-known exceptions to a carrier’s liability; but if the leather was only stored with them, they were not liable except for actual negligence, which was not pretended.

The facts that the defendants kept a storehouse, and that the goods were deposited in it when burned, are not conclusive in their favor; for if such deposit and storage were only incidental to the performance of an undertaking entered into by them to carry the goods their possession was that of common carriers. That point was decided in Blossom v. Griffin (3 Kern., 569), in an action against the same defendants, to recover for the loss of goods consumed by the same fire, in which the plaintiffs prevailed. But in that case the defendants received and stored the goods under a contract with the owners to carry them to New York by their line of canal boats. They received and placed them in store for their own convenience, to enable them to perform their contract as common carriers. We considered that they held them in that character from the time they first obtained the possession. So in Hyde v. The Trent and Mersey Navigation Company (5 Term, 389), where the placing in store occurred at the other terminus of the transit, from which store they were to be taken in carts to the residence of the consignees. The goods having been destroyed while in the store by an accidental fire, the carriers contended that they were only warehousemen'; but the judges were strongly of the opinion (though the decision eventually turned on another point), that, as the defendants received the goods in the capacity of carriers, and as the engagement was to carry and deliver them to the consignee, the goods remained in their custody as carriers the whole time.

In the present case, there is no evidence that the defendants undertook to carry these' goods on the canal, or to carry them at all. If their boats had been the only means of carrying by water east from Buffalo, or if, by the course of their business, they forwarded goods which had been taken into their storehouse only by their own boats, a presumption would have arisen, from their receiving them from the steamer into the storehouse, that they had contracted, not merely to store and forward them, but to store and carry them. No such inference, however, can arise, where their habit of business was to forward by the first boats going east which would take them. If the fire had not occurred, it is just as probable that they would be sent forward by other lines as that they would be sent by their own. Suppose they had been sent by another line, the defendants never would have been carriers of the property at all, and yet they would have performed their whole duty respecting the goods. When they were placed in their store, they were certainly warehousemen; and whether they would ever hold any other relation to them, depended upon other facts, to take place afterwards; namely, whether they would have boats of their own ready to take them before an opportunity to send them by other boats should arise. Until this should be determined by their loading them on board their own boats, or distinctly contracting to do so, I think they were not chargeable with any other duties or responsibilities than those which beldng to forwarders and keepers of a storehouse.

Stress has been laid upon the circumstance that the memoranda attached to the bill of lading do not in terms contemplate a storage anywhere, until the leather should reach Albany. The price which the shipper was willing to pay for the canal transportation is mentioned, but nothing is said about charges for storage. Still, if the plaintiff contemplated that they should be carried forward by canal, as he certainly did, he expected that the usual incidents of such a transportation would take place. We assume that the nature of the business rendered it necessary, or at least convenient and proper, that the goods should be put into a storehouse at Buffalo, in order to be laden from thence into a canal boat. The statement that the goods'were to be in the care of the defendants at Buffalo, was an intimation that they were to attend to that service if necessary to be done. In the absence of proof to the contrary, we are to intend that the plaintiffs were acquainted with the nature of the defendants’ employment, and their general course of business. If they knew that, they were aware that the defendants would forward them by the first convenient opportunity, whether by their own or by other boats. They cannot, therefore, be considered as tendering to the defendants the possession of the goods, to be carried only by them. They must be understood as placing them in the defendants’ hands to be dealt with according to the usual course of business at that point, and not necessarily as carriers on the canal.

I am, therefore, of opinion that there was no error in the ' judgment of the Supreme Court, and that it should be affirmed.

Gould and Allen, Js., concurred.

Judgment reversed, and new trial ordered.

CASES DETERMINED IN THE COURT OF APPEALS OZ1 THE STATE OF YORK, Deceniber Term, 1863.  