
    Railroad Co. v. Hatch.
    
      Common carrier — Liability of railroad company — Continues until receipt of notice by consignee, ate. — Absence of contract and statute.
    
    In the absence of both contract and statute, to the contrary, the liability of a railroad company, as a common carrier, continues until notice to the consignee of the arrival of his goods, and a reasonable time during business hours after receipt of notice> to inspect and remove them ; unless he is unknown, absent, or cannot be found, in which cases the goods may be stored.
    (Decided March 12, 1895.)
    Error to the circuit court of Hancock county.
    This action in the court of common pleas was for the recovery of the value of certain personal property, delivered by Caleb L. Hatch, plaintiff below, to the Lake Erie and Western Railroad Company, at Sandusky, Ohio, to be shipped to Findlay, Ohio, over its line of railroad, and there to be delivered to Mr. Hatch, in the ordinary course of business. Upon the arrival of the goods at Findlay, they were placed into the warehouse of the railroad company, and notice sent to Mr. Hatch. Before he called for them the warehouse was burned, and the goods consumed in the fire. The court of common pleas, on the trial of the ease, found its conclusions of fact and law separately, as follows:
    
      “First — The goods mentioned in the petition were received by the defendant as a common carrier at Sandusky City, Ohio, from the plaintiff, for transportation on defendant’s railroad to Findlay, Ohio, for hire, and the said goods arrived at their destination at Findlay, at 7:30 o’clock P. M., on February 2, A. D. 1891, and on the morning of the 3d day of February, A. D. 1891, said goods were removed from defendant’s cars by defendant’s agent and employees, and placed in defendant’s freight warehouse about 7 o’clock A. M.
    
      “Second — At 9 o’clock in the forenoon of February 3, 1891, the defendant deposited a notice printed and written on a postal card, in the street letter box of the postof&ee department, and that such card was postmarked at 1:30 P. M. of the same day, and was received by the plaintiff at 6 o’clock in the afternoon of that day, which card informed the plaintiff of the arrival of the goods at destination.
    “ Third — On the morning of the 4th day of February, A. D. 1891, at 2 o’clock A. M., without fault or negligence of the defendant-, the said freight warehouse of defendant was destroyed by ñre, and the plaintiff’s goods were also destroyed and lost to plaintiff by such fire, and plaintiff demanded the goods on the morning of the 4th of February, 1891.
    
      “Fourth — The value of the goods so destroyed, which were owned by plaintiff, was one 'hundred and fifty dollars. That it is and always has been the custom of defendant to give notice of the arrival of goods at their station in Findlay, Ohio.
    
      And as its conclusions of law upon the above facts, the court find that:
    
      ‘ ‘First — The defendant is liable as a common carrier to the plaintiff for the value of such goods.
    
      “Second — -The plaintiff ought to recover from the defendant the sum of one hundred and fiffy dollars.
    “It is therefore considered by the court that the plaintiff, Caleb L. Hatch, recover of the defendant, The Lake Erie and Western Railroad company, the said sum of one hundred and fifty dollars, together with his costs, taxed at $-. ”
    Exceptions were taken by the railroad company, and petition in error filed in the circuit court, and that court affirmed the judgment of the court of common pleas. . Thereupon the railroad company filed its petition in error in this court, seeking to reverse both judgments below.
    
      A. & J. Blackford, for plaintiff in error.
    . The only question made in the case is .as to the character of the liability of the plaintiff in error for these goods at the time of their destruction; whether the liability is that of a common carrier qr of a warehouseman. The common pleas and the circuit court both conceded that the obligations and liability of the common carrier may be ended by the delivery of goods in a warehouse at place of destination, but hold that this can only be done on the actual receipt by the consignee of a notice of arrival sent by the carrier to him, and that a reasonable time for the removal of the g-oods must elapse after the actual receipt of the notice, before the liability of the carrier is ended, and the liability of the warehouseman begins. Revised Statutes, sections 3221, 3226. The notice must be given, within thirty days from arrival of goods at destination, and the six months begins to run from time of giving notice. But this does not have any effect whatever on the character of the liability for loss of goods, whether as carrier or warehouseman. . This act was passed in 1875,’before the decision of Gaines v. Trans. Co., 28 Ohio St., 418. The duty of consignee to be on-hand to receive his goods when they arrive on schedule time is not changed. The duty is reciprocal between carrier and consignee — the carrier must have the goods at destination on time, and the consignee must be there to receive them. Morris, etc., R., R. v. Ayers, 5 Dutch., 393; 80 Am. Dec., 215; 100 Am. Dec., 541; Sherk v. Phil. Steam P. Co., 60 Pa. St., 109; 91 Am. Dec., 349; Blumenthal v. Brainard, 38 Vt., 402.
    It was the duty of the consignee- to be on hand to receive the goods at the time when they were due to arrive, or failing in this to take his share of the risk arising out of his failure so to do, and to accept the modified liability of the warehouseman in lieu of the strict liability of the carrier. Gaines v. Onion T. Co., 28 Ohio St., 418; Redfield on Ry., section 130, page 251; Norway Plains Co. v. Boston & M. R. R., 1 Gray, 263; Farmer & Merch. Bank v. Champlain Trans. Co., 23 Vt., 211; Smith v. Railroad Co., 7 Foster, 86.
    It is right enough that the liability of the company to take good care of goods should continue after their arrival at destination, and after being-made ready for delivery, but this liability should be only for a reasonable safety of the goods as in other cases of bailment, and not an absolute insurance- of safety. The liability that attaches to warehousemen is ample, and fully just to owners. The owner should bear some of the risks incident to the ownership of property. Moses v. Railroad Co., 32 N. H., 523; Thomas v. Railroad Co., 10 Met., 472; Francis v. Railroad, 25 Iowa, 61; Mohr v. Railroad, 40 Iowa, 579; Independent Mills v. Railroad, 34 N. W., 320.
    The contract of ■ transportation was at an end. before the goods were destroyed. The liability, therefore, of the defendants was that of a warehouseman. That the destruction of goods by a fire which is purely accidental constitutes a good defense as to a warehouseman, is 'Conceded on all hands. Denton v. Railroad, 52 Iowa, 161; Francis v. Railroad, 25 Iowa, 61; Mohr v. Railroad, 40 Iowa, 579; Leland v. Railroad, 23 N. W., 390.
    A carrier is not liable as such for goods placed in its warehouse after transportation, although the consignee may have had no opportunity to remove them, because told they were not there, but its liability is that of a warehouseman. Railway Co. v. Kelley, 91 Tenn., 699; 90 Tenn., 353; Railway Co. v. Smith, 81 Tex., 479; Railway Co. v. Trawick, 80 Tex., 270. In California the civil code, section 2120, requires that notice be given in order to reduce liability. It is not a rule of common-law. Wilson v. Railroad Co., 94 Cal., 166. In Kentucky the liability is that of warehouseman, and not that of a carrier. The Penn. Co. v. Miller & Co., 35 Ohio St., 541; Kirch v. Steamboat Quaker City, 2 Disney, 144.
    The following states hold the rule to be as we claim it, that the liability is fixed either as carrier or warehouseman without any reference whatever to notice. • Denton v. Railroad, 52 Iowa, 161; Francis v. Railroad, 25 Iowa, 61; Mohr v. Railroad, 40 Iowa, 579; Railway Co. v. Kelley, 91 Tenn., 699; 91 Tenn., 788; 90 Tenn., 353; Railway Co. v. Smith, 
      81 Tex., 479; Railway Co. v. Travisk, 80 Tex., 270; Wald v. Railroad Co., 18 S. W. Rep., 850; Rice v. Hart, 118 Mass.; 19 Am. R., 433; 46 Ala., 63; 7 Am. R., 389; McCarty v. Railroad, 30 Penn., 247; 38 Vt., 402; 91 Am. Dec., 356.
    After goods have arrived at their destination and are stored by the carrier, the liability of the carrier then becomes of a warehouseman, and he is only liable for the loss of the- goods when occasioned by a failure to exercise reasonable care and diligence. Railroad Co. v. Campbell, 12 Ind., 55; Railroad Co. v. McCool, 26 Ind., 140; Bansemer v. Railroad Co., 25 Ind., 434; Merchants Co. v. Merriam, 111 Ind., 5.
    A carrier is bound to carry goods to the point to which the contract of carriage calls for, and deliver the same to the consignee, if known, or can be found, and if such delivery cannot be made, to store the goods and notify the consignee. Navigation Co. v. Marshall, 48 Ind., 596.
    The 111 Ind., 5, is a very strong case in support of our proposition and cites a long list of authorities. The court says- emphatically that the liability as common carrier ceases when the goods are stored in the warehouse at destination.
    
      Ballard & Franks, for defendant in error.
    The plaintiff in error was bound to give notice of the arrival of the goods, and after such notice the defendant should have been given a reasonable opportunity and time in which to remove them. The time of the arrival of the goods was at best uncertain, and it would be unjust to require the consignee’s attendance at the depot; that the unloading was not equivalent to delivery, because as yet the consignee had nothing- to do with the goods. ' What is a reasonable time for the carrier to hold the goods subject to such responsibility when there is no dispute as to the facts, is a question of law for the court. Am. & Eng. Ency. of Law, volume II, pages 891, 892 and note 7 at bottom of page 893.
    As to the question of notice, we cite the following authorities: Gains v. The Union Transportation and Ins. Co., 28 Ohio St., 418; Hirsch v.The Steamboat Quaker City, 2 Disney’s Rep., 144; Roberts v. Union Line Express Co., 4 West. Law Monthly, 99; Swan’s Treatise, 461; Fenner v. Buffalo, 44 N. Y., 505; Schouler on Bailment, sections 512, 513, 516; Chalk v. Charlotte R. R., 85 N. C., 423; 28 N. Y., 78; Hedges v. Railroad Co., 49 N. Y., 223; Sprague v. Railroad Co., 52 N. Y., 637; Pelton v. Railroad Co., 54 N. Y., 214; Sherman v. Hudson River Railroad, 64 N. Y., 254; Spears v. Railroad, 11 S. Car., 158; Union Express Co. v. Ohlman, 92 Pa., 323; Breckley v. Railroad, 18 Mich., 121; McMillen v. Railroad, 16 Mich., 79; Am. & Eng. Ency. of Law, volume 2, pages 896, 897.
    Further upon the question, when does carrier’s liability as such cease, and his liability as warehouseman commence, courts have held three propositions :
    
      First — That this occurs when goods are placed in warehouse to await delivery to consignee.
    
      Second — That after the goods are placed in warehouse, carrier’s liability as such continues until consignee has had reasonable time in which to remove them.
    
      Third — That carrier’s liability continues until he has notified consignee of the arrival of goods, and he has had reasonable time in the ordinary
    
      course of business, to remove them. McMillen v. Railroad, 93 D., 208.
    The rule in N. H. requiring notice, and a reasonable time to remove after such notice, has been adopted in the following states: Kansas, Kentucky, Louisiana, Michigan, Minnesota, New Jersey, New York, Ohio, S. Carolina, Tennessee, Vermont, Wisconsin. Am. & Eng. Ency. of Law, volume 2, page 93; 2 Mich., 538; 18 Wis., 315; Angelí on Carriers, page 286, et seq., 2 Parsons on Contracts, page 183.
    There is nothing to show that the notice which the plaintiff gave is under section 3221, Revised Statutes. By the admitted facts it was given in pursuance of the custom which had been maintained ev'er since the road had been in operation, and by reason of the known custom the defendant had a right to presume that notice would be given him of ,hhe arrival of the goods.
    The case of the Penn. Co. v. Willer & Co., cited by plaintiff, 35 Ohio St., 541, has no application in this case, for then the owner of the baggage was present on the arrival of train at destination, and the baggage being a part of his personal effects, not freight, it was his' duty to call immediately. If it had been a car load of goods instead of baggage, and had arrived at nine o’clock at night, even though the defendant had been present at depot upon their arrival he would not have been bound to receive the- goods at such an hour, for he had the right to inspect the goods and to receive them during business hours, and at a reasonable time.
    It is not questioned that when a railway or other carrier receives property to be carried, the presumption, in the absence of clear proof to the contrary is, that it was to be carried subject to the common law liability of a common carrier. Davidson v. Graham, 2 Ohio St., 141; Express Co. v. Gahorn, 26 Ohio St., 595; Express Co. v. Bachmore, 28 Ohio St., 144. Liability at common law — by implied contract, liable for loss, except by act of God, or fault of owner or public enemy. Story on Bailment, section 489; Jones on Bailment, 103; 12 Conn., 419; Fields’ Lawyer’s Brief, 2d volume, pages 12, 23, 24, 25.
   Burket, J.

On the part of the plaintiff in error, the railroad company, it is claimed that at the time the goods were destroyed by fire, its liability as a common carrier had ceased, and its liability as warehouseman begun. On the part of defendant in error it is claimed that the liability of the railroad company at the time of the fire was that of common carrier, and that such liability continued until it notified defendant in error of the arrival of the goods, and until he had a reasonable time after receipt of such notice, and during business hours, for the inspection and removal of the same.

While transportation of personal property was carried on by means of stage coaches, and the like, the carrier was required to deliver the goods at the residence or place of business of the consignee, ' and his liability as carrier did not end until such delivery.

In maritime transportation, the rule is very general as well in this country as in England, that the liability of the carrier ceases upon the arrival and unloading of the goods at port of destination.

One strong, if not controlling, reason for this is that the revenue laws imposing duties upon imported goods require regulations which so far interfere with the- custody of the goods after arrival, as to deprive the carrier of full control, and therefore the liability of the carrier ceases, when the control of the revenue officer begins. Cope v. Cordova, 1 Rawle, 203. Hyde v. Trent and Mersey navigation Company, 5 T. R., 394; Chickering v. Fowler, 4 Pick., 371.

As to transportation by river or along the coast, in most of the early cases it was held that the liability of the carrier continued until the arrival of the goods and notice to the consignee with reasonable opportunity for the acceptance and removal of the goods. In some of the cases it was said that liability of the carrier could be ended only with the consent of the consignee, either given in fact or implied by his acts. Ostrander v. Brown and Stafford, 15 Johns, 39; Cope v. Cordova, 1 Rawl., 203; Hemphill v. Chenie, 6 Watts & Sargent, 62; Hill v. Humphreys, 5 Watts & Sargent, 123. When railroads came into general use, and absorbed the bulk of the carrying trade in this country, the courts in some of the states followed the rule in maritime transportation, and held that the liability of the carrier ended upon the arrival of the goods, and unloading them upon a platform or placing them in a warehouse. The courts of other states, for reasons widely differing, followed the rule applied to transportation by river, and held that the liability of the carrier by rail continued after the arrival of the goods until notice to the consignee and reasonable opportunity thereafter for the removal of the same. In some of the states, as New York, Tennessee, California, and perhaps others, this rule has been adopted by statute.

A list of the states not requiring notice, is found in 2 Am. and. Eng. Ency. of Law, 892, with citation of eases, and a list of the states requiring notice, is found on page 893, with like citations.

In this state we have no statute requiring notice to the consignee for the purpose of ending’ the carrier’s liability, unless section 3227, Revised Statutes, would bear such construction. Under that section the carrier cannot charge for storage until ten days after notice, and it might be claimed, as has been held in some cases, that the liability as carrier continues, until the right to charge storage begins. But as the effect of this section was not argued by counsel on either side, we express no opinion as to its construction, and dispose of the case on principles of the common law.

The question has not been passed upon by this court, and therefore we are at liberty to follow that line of decision, which, in our opinion, will best meet the wants of the present course of business.

The court of common pleas found as a fact, that it has always been the custom of defendant below, to give notice of the arrival of goods, and we think that, this is the general, if not the universal custom in this state. Consignments arrive daily and at all hours, both day and night, often hundreds, to as many consignees in a single day, and to require all to be on the lookout, and make inquiry of the ag’ent, would be impracticable, and would seriously retard business.

The custom of sending notice to the consignee sprung out of the necessity of business, and is for the benefit and convenience of both parties. The railroads established this custom, the public acquiesced therein, and the law adapts itself thereto.

As therefore the present course of business is to give notice to the consig-nee of the arrival of his goods, it follows as a necessary sequence, that the carrier must hold and care' for the goods until the consignee has reasonable time after receipt of notice, to inspect and remove them.

After carefully considering all the cases, and the reasons stated in each, the court is unanimous in the opinion, that in the absence of both contract and statute to the contrary, sound policy, and the present course of business, require that the carrier should give notice to the consignee of the arrival of his goods, and that the consignee is entitled to a reasonable time during business hours after receipt of notice, to inspect and remove the goods, unless he is unknown, absent, or cannot be found, in which case the goods may be stored.

In this case the notice was received at six o’clock in the evening, after the close of business hours, and the goods were consumed by fire at about two o’clock the same night. It is therefore clear that the liability of the railroad company, as carrier, had not ended when the goods were burned.

The judgment of the court of common pleas is therefore right.

Judgment affirmed.  