
    THE LOUISVILLE AND NASHVILLE RAILROAD COMPANY v. THE UNITED STATES.
    [No. 22640.
    Decided April 11, 1904.]
    
      On the Proofs.
    
    Government stores are loaded on a freight car of the claimants at the Pensacola Navy-Xard while the car is in the custody of the defendants’ officers. The car is carried without the claimants’ knowledge or consent to their railroad yard. Their receiving clerk, finding no shipping directions, telephones to the intermediate electric road for instructions, and the agent of the electric road calls on the quartermaster haring charge of government transportation for directions, who replies that a hill of lading will be sent. The claimants, hearing nothing, remove the packages for safe-keeping into a storehouse, where they are destroyed by fire. The question in the case is whether the claimants are responsible as common carriers or warehousemen.
    I.The liability of a common carrier does not begin until there has been a complete delivery of the goods for immediate transportation with the knowledge and consent of the carrier.
    II.Where a railroad finds goods in one of its cars without bill of lading or other instructions, and removes them to a storehouse, requesting and awaiting instructions which are not furnished, the liabilities are those of a warehouseman and not of a common carrier. A railroad is not liable as a common carrier for property deposited in its warehouse awaiting the orders of the owner for transportation.
    III. A warehouseman is only bound to ordinary care and diligence, such as faithful warehousemen are accustomed to give in like circumstances.
    IV. Where tlie custom between the parties is that a bill of lading with directions shall be given before the goods are forwarded, it can not be held that because packages loaded on the claimants’ car were addressed in the usual way to the depot quartermaster in New York that-this imposed up'on the railroad the duty of immediate shipment.
    
      The Reforters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. On November 20, 1897, there were loaded on a freight car of the claimant, the Louisville and Nashville Railroad Company, by employees of the United States Government at the Pensacola Navy-Yard a number of articles belonging to the Government and in custody of the officials at the yard. The car stood on the track of the Pensacola Electric Terminal Company, an electrical trolley line extending from .Fort Barrancas by way of the navy-yard to Pensacola, and there connecting with the railroad of claimant, by whom it was intended by the officials at .the navy-yard that the property, on receipt by its agent at Pensacola of shipping directions, should be forwarded to New York City. The packages containing- the goods were severally addressed in the usual way of marking to the United States depot quartermaster, New York City.
    II. Said car, with the property aboard, was- moved by an engine of the Pensacola Electric Terihinal Company to Pensacola and left on a spur track which connects its main line with claimant’s and thence, on November 22, it was drawn by a yard engine of claimant to the freight depot of the latter. The receiving clerk at the depot, finding that no shipping directions accompanied the goods, immediately telephoned the offices of the Pensacola Electric Terminal Company for such directions and, in turn, the agent of that company, also by telephone, called on the quartermaster at Fort Barrancas, who had charge of all transportation of Government material from the fort and the navy-yard, for such directions, and he replied that a bill of lading would be sent from the fort to the Pensacola Electric Terminal Company’s office. No bill of lading being received at claimant’s depot, the goods were, during the afternoon of November 23, removed by its agent from the car and stored in the depot to await directions. This call for bill of lading was several times repeated during November 23 and 24, claimant’s agent communicating with the agent of the Pensacola Electric Terminal Company and the latter with the quartermaster at the fort, but no bill of-lading or other directions came to the office of either company. On the night of the 24th claimant’s depot was accidentally, through no act or fault of claimant, burned, and its contents, including the goods in question, destroyed. In the forenoon of November 25 the receiver of the Pensacola Electric Terminal Company, having general charge of its affairs, received at his office by mail a bill of lading for the intended shipment, prepared at and posted from the quartermaster’s office for presentation to and signature by claimant’s agent.
    ill. The envelope in which the bill of lading was inclosed bears the postmark of Warrington, which is the post-office for both the navy-yard and Fort Barrancas. It is addressed in the handwriting of an attaché of the quartermaster’s office at the fort.
    
      IY. There was in effect at that time a contract between the Pensacola Electric Terminal Company and the Government for the transportation of all passengers and freight for account of the Government between Pensacola and Fort Bar-rancas by said company, providing for payment of $400 per month to the company for such service. The unvaried custom, except for this transaction, in movements of Government freight from Fort Barrancas or the navy-yard to Pensacola en route to points beyond was that the quartermaster would prepare a bill of lading and insert it in an envelope addressed to claimant’s agent at Pensacola, but would then inclose it in an outer envelope addressed to the receiver of the Pensacola Electric Terminal Company and put it in the hands of the conductor of the train of that -company on which the freight was carried, to be delivered by him at the receiver’s office and forwarded thence by the receiver to claimant’s agent.
    Y. Claimant’s unvaried custom at Pensacola was and is, as to any and all freight, by whomsoever brought to it, to require and have a bill of lading before forwarding the goods or receiving them for shipment.
    YI. No agent or representative of claimant or of the Pensacola Electric Terminal Company consented to or knew of the loading of the goods in question, as above described, on claimant’s car, and none consented that the same should bo shipped without shipping directions, or in any way declared or intimated that they were received for shipment in advance of or without such directions.
    YII. During January, 1898, a board of survey of army officers, under orders of the post commander at Port Bar-rancas, investigated and reported on this loss of property, but in their report they refrained from any conclusion as to the legal responsibility for the loss. The Auditor for the Navy Department, to whom the report was referred, decided that the loss was chargeable to claimant, and, fixing the value of the goods at $1,606.15, compelled it to pay this sum by deducting the same from the amount due it on certain other settlements, and that sum is the amount due the claimant if entitled to recover.
    
      
      AIr. Benjamin Carter for the claimant:
    (1) Placing goods on a car standing (a) on a side track or (b) at or near a railroad warehouse or (c) placing them at a mere switch does not constitute a delivery to the railroad company. (Yoakum v. Dry den, Tex-., 26 S. W. Rep., 312; Houston & Texas Central By. Co. v. Hoddle, 42 Tex., 467; Kansas-City, M. do B. R. Co., Lilly, Miss., S So. Rep., 644.)
    (2) One who would fix a liability on a railroad company for the safety of goods assumes the burden of proving the delivery of the goods to (including their acceptance by) an authorized agent of the company. (Rorer on railroads, p. 698; Louisville cfi Nashville Railroad Co. v. Echols, 97 Ala.,, 556; Spade v. Hudson River R. Co., 16 Barb., 368.)
    (3) A railroad company holding goods for shipment, but awaiting shipping instructions, holds them, not as a common carrier, but as a voluntary warehouseman and is not answerable for their destruction not caused by its negligence. (Am. & Eng. Enc. of Law, 2d eel., vol. 5, p. 261; Pittsburg ds C. R.. Co. v. Barrett, 36 Ohio St., 448; 3 Am. & Eng. Railroad Cases, 256; Little Rock c& C. R. Co. v. Hunter, 42 Ark., 200, and note in 18 Am. & Eng. Railroad Cases, 527; Judson v. Western R. Corf., 4 Allen, 520; 81 Am. Dec., 718.)
    
      Mr. William W. Scott (with whom was Mr. Assistant Attorney-General Pradt) for the defendants:
    The defense contends that the railroad company is liable as a common carrier for the reason that the property lost was delivered to the railroad company for the purpose of having said company convey it from Pensacola, Fla., to the city of New York, and that the railroad company, in taking possession and control of said goods, did so as a' common carrier with the purpose of transporting them to thé place of destination thereon marked, and that every act of the agents of said company in receiving said goods demonstrated that it was the intention of the company to convey the goods as desired by the shipper and in accordance with the directions on each box or package which ivere in the company’s possession.
    To ascertain whether or not the railroad company in this case is liable as a common carrier we must ascertain whether or not the railroad company did actually and absolutely take possession and control of the goods intended to be shipped. From the circumstances surrounding this case it can not be denied that the railroad company had at the time of the fire possession of the goods, and that the shipper, which in this case was the official at the navy-yard, surrendered the entire custody of the goods to the carrier for transportation, and it is good argument to say that when the shipper surrenders entire custody to the carrier for transportation in the regular and ordinary course of its business as a common carrier and the carrier so accepts, that, eo instantly the liability of a common carrier attaches, and from that moment the carrier is an insurer of the goods and is liable to the shipper for any loss occurring thereto before complete delivery at the pfiace of destination, unless the loss is occasioned by the act of God or the public enemy.
    It was undoubtedly the purpose of the Government official at the navy-yard, in delivering these goods and causing them to be loaded in a box car, to have them transported to the depot quartermaster at New York. This is plain, for the reason that the name of the consignee and the p>lace of destination, which are in fact the actual shipping directions, were “ pilainly marked ” on each box and package thereof, and therefore were furnished the carrier.- The object of the railroad in receiving and taking possession of the goods was to transport them from Pensacola, Fla., to the depot quartermaster at New York in accordance with the directions on each box and package of said goods. It therefore follows that, when the object of delivery and acceptance of goods is carriage, the company so receiving them must be considered a common carrier, and the liability of a common carrier immediately commences. In other words, the moment the delivery of the goods to the Louisville and Nashville Railroad Company for transportation was complete, and the said company took charge of and assumed absolute control and custody of the goods, the liability of a carrier attached; and it matters not how long nor for what purpiose the carrier may delay in putting the goods in transitu, and, if during this delay the goods are destroyed by fire, or in any other way a loss occurs, not occasioned by an act of God or the public enemy, the carrier (in this case the Louisville and Nashville Railroad) is responsible. (See Story on Bailments, 536; Ang. on Carriers, secs. 129, 131, and 304.)
    It is argued by the counsel for the claimant that there was not a complete delivery of the said goods in this case, for the reason that there was no bill of lading issued covering the goods in question. A bill of lading is the common carrier’s contract to carry and deliver the goods. It is not essential that this contract be in writing. It can as well be established, by parol; neither is it essential to a complete delivery of goods for transportation to a common carrier that a bill of lading should be issued, and the fact that no bill of lading was issued by the carrier when receiving the goods for transportation does not relieve the railroad company of the common-law liability of a common carrier. (See 38 Ill., 354; 60 Arle, 333; 20 Conn., 354; 60 N. Y., 138, and cases there cited.)
    Whether or not the issuance of a bill of lading is essential to a complete delivery of goods to a carrier, the American and English Encyclopaedia of Law says:
    “ The giving of. a bill of lading entry of goods upon the file list, etc., are not essential to a consignment unless by statute.” (Yol. 2, Am. and Eng. Enc. of Law, 810; Parker v. Great Western R. R., 7th Man. and G.; Citizens’ Bank v. Nantucket Steamboat Go., 2 Story, C. C., 16; Shelton v. Merchants’ Desp. Transp. Go., 4 Jones and Sp., N. Y., 527.)
    In the State of Florida, where the loss of the goods in question occurred, there is no statute on the subject of the liability of a common carrier (as there is in Texas); therefore, the liability of a common carrier in the State of Florida is that of the common law, and it commences the moment the goods are delivered and received for transportation.
    On this question the Supreme Court of Ohio, in the case of the Pittsburg, Cincinnati and St. Louis R. R. Go. v. Barret and Walton, held: ■
    Where goods are delivered to a common carrier for shipment, and received by it tó be forwarded in the usual course of business, the liability of a common carrier immediately attaches, and if they are lost by an accidental fire while in the carrier’s warehouse awaiting transportation he is liable, unless the common-law liability has been limited by an agreement with the shipper. .(36 Ohio State S. C., p. 448; 3d Am. and Eng. E. E. Cases, 256;' 18 Am. and Eng. E. E. Cases, p. 527.)
    The deposit of goods in a warehouse as accessory to the carriage, aiid for the purpose of being carried, imposes on the carrier the liability of the carrier and not that of a warehouseman. In such, case if they are lost by fire while awaiting shipment the carrier is liable to the same extent as if the goods were in transit, unless his liability has been modified, limited, or restricted with the consent of the shipper and owner of the goods. (Am. and Eng.' Enc. of Law, vol. 2, p. 804, and cases there cited in notes 3 and 4.)
   Peelle, J.,

delivered the opinion of the court:

The claimant herein seeks a recovery for money earned in the transportation of freight which was withheld by the United States by way of reimbursement for the loss of certain property which was burned while in the depot of claimant at Pensacola, Fla., in November, 1897.

The goods for which the deduction was made were, on November 20, 1897, loaded by the defendants’ officers at the Pensacola Navy-Yard on a freight car of the claimant standing on the track of the Pensacola Electric Terminal Company, which extended from Fort Barrancas by way of the navy-yard to Pensacola and there connected with the claimant company. The goods so loaded were in packages and were addressed in the usual way of marking such packages to the United States depot quartermaster at New York City.

Said electric company was at that time under contract with the defendants to transport for them for the consideration of $400 per annum all passengers and freight for and on their account between the points named.

The car when so loaded was taken by an engine of said electric company over its track to Pensacola and there left on a spur track connecting with the main line of the claimant.

On November 22 the claimant, with one of its yard engines, hauled the car so loaded into its depot. The receiving clerk finding no directions accompanying the goods, caused a telephone message to be sent by the agent of said electric company therefor to the quartermaster at Fort Barrancas, who bad charge of all transportation of Government property between that point and the navy-yard, and that officer promised that a bill of lading would be sent to the office of said electric company, but none was received up to the afternoon of November 23, and at that time the goods were removed from the car by the receiving clerk of the claimant and stored in its depot to await instructions.

The bill of lading iras called for by the claimant through the agent of said electric company several times during November 23 and 24, but none came.

On the night of'November 24 the depot was accidentally, through no fault of the claimant, burned, and the contents, including the goods in question, were destroyed.

The next day, November 25, the receiver of said electric company having general charge of its affairs received by mail at his office a bill of lading for the intended shipment of goods so burned.

The claimant’s invariable custom at Pensacola was, as to any and all freight delivered to it for shipment, to require a bill of lading before forwarding the goods or receiving them for shipment.

No agent of the claimant or of said electric company knew of the loading of the goods in question on claimant’s cars, and no one consented that the same should be shipped without shipping directions, according to its usual custom.

In the settlement of the claimant’s account the Auditor for the Navy Department, to whom the report of the board of survey was sent, decided that the loss was chargeable to. the claimant and fixed the value at $1,606.15 and deducted the same from the amount due the claimant on certain other settlements.

The findings present the- question as to whether the liability of the claimant as custodian of the goods of the Government-in the manner stated was that of a common carrier or a warehouseman.

The general rule is that the liability of a common carrier in respect of goods intrusted to it begins when there has been a complete delivery to the carrier or its aiithorized agent for immediate transportation; and to complete such delivery “ it is essential that the property be placed in a position to be cared for, and under the control of the carrier or its agent, with its knowledge and consent.” (Grosvenor v. R. R. Co., 39 N. Y., 34.)

The rule, as well as the reason therefor, appear well stated in the case of the Missouri Pacific Railway v. McFadden (154 U. S., 155-160), where the court, following Hutchison on Carriers, 82, says:

“ The duties and the obligations of the common carrier with respect to the goods commence with their delivery to him, and this delivery must be complete, so as to put upon him the exclusive duty of seeing to their safety. The law will not divide the duty or the obligation between the carrier and the owner of the goods. It must rest entirely upon the one or the other; and until it has become imposed upon the carrier by a delivery and 'acceptance he can not be held responsible for them.”

And this doctrine, the court in that case says, “ is sanctioned by a unanimous course of English and American decisions.”

If upon the acceptance of goods for immediate transportation the carrier, for his own temporary convenience, places them in store, that will not release him from the liability of a common carrier, as the delivery being complete for the purpose stated the liability of a common carrier attaches. (Rodgers v. Wheeler, 52 N. Y., 262.)

If, however, there is anything remaining to be done on the part of the shipper before the goods can be transported the delivery is not complete, and this was the effect of the ruling in the case of the Mich. Southern, etc., R. R. Co. v. Schurtz (3 Cooley, 7 Mich., 515), where it was held in substance that a railroad company was not liable as a common carrier for property deposited in its warehouse to await the orders of the owner for transportation.

In the case of St. Louis, Alton and Terre Haute R. R. Co. v. Montgomery (39 Ill., 335-337), a shipper had delivered to the railroad a quantity of hay which was placed on platform cars for shipment, and the next day, when the company was ready to send the hay forward the shipper requested the company not to take the hay away until he could first see the party to whom it was sold, which request was complied with, and the next day the hay was ignited by sparks from a passing locomotive and a portion of it burned, without fault on the part of the company. The owner brought suit to recover for the value of the hay burned and in-the court below obtained a judgment, but on appeal the Supreme Court reversed the judgment, saying, among other things:

“ A common carrier, it is true, is liable for all losses not arising from ‘ the act of God ’ or the public enemy, in neither of which categories would the loss in the case before us fall. But the technical liability of a common carrier does not attach until the delivery to him of the property is complete. If, for example, the same person is common carrier and warehouseman, and he- receives goods to be forwarded when he has orders from the owner, his liability in the meantime is that of a warehouseman and not that of a common carrier. He must exercise reasonable care, but he is not an insurer against all losses except those arising from ‘ the act of God ’ or the public enemy. * * * From the moment that request was made, and while the defendants were detaining the hay in consequence of it, they were only liable for losses which might have been guarded against by the exercise, on their part, of ordinary care and diligence.”

In the present case there was no express request by the Government or its agent to hold the goods which had been loaded on the claimant’s car without its knowledge or that of its authorized agent, but after the claimant became advised that the goods were loaded on its car the responsible officer of the Government ivas at once and frequently requested to send a bill of lading, which was delayed; and in the meantime the goods were unloaded from the car and stored in the depot of the claimant where, before the receipt of the bill of lading the depot, with all its contents, including the property of the defendants so unloaded therein, were burned.

“ Whether the responsibility be in one capacity or the other is seldom a matter of express agreement between the parties. It arises out of the relation which the parties sustained and the duties which the law imposes.” (Barren v. Eldridge, 100 Mass., 455-458.)

Assuming that the claimant was a warehouseman for hire, it was only bound to ordinary diligence — that is to say, such care and diligence as good and capable warehousemen are accustomed to show under like circumstances.

In view of the unvaried custom of the claimant in respect of all shippers, to require a bill of lading before forwarding goods received for shipment, it can not be held that because the packages loaded on the claimant’s car were addressed in the usual way of marking to the United States depot quartermaster at New York City, therefore the claimant had sufficient direction to impose upon it the duty and obligation of immediate shipment.

This action is brought to recover freight earnings due the claimant for services rendered in the transportation of the property- of the Government over its line of road, which were withheld by the accounting officers of the Treasury in the settlement of its accounts and applied to the payment of the value of the goods so burned, on the theory that the claimant was liable therefor as a common carrier. (7 Comp. Dec., p. 65.)

As the defendants have failed to show negligence on the part of the claimant in the care and custody of the goods so burned, as they would have had to do had they brought suit to recover therefor, and as the court has reached the conclusion that the claimant, in the care of the defendants’ property, was a warehouseman and not a common carrier, and therefore only chargeable with ordinary diligence, it is entitled to recover judgment in the sum of one thousand six hundred and six dollars and fifteen cents ($1,606.15), which is accordingly ordered.  