
    Isaac Stadhecker vs. Combs & Co.
    Action against Express Carriers for value of a lost trunk and its contents: — Weld, that defendants' acknowledgments by letter and otherwise were sufficient evidence that plaintiff was the owner to sustain a verdict in his favor.
    Held, that the presiding Judge properly charged the jury that this was a case in which some relaxation of the rule of exactness in the evidence as to the quantity and value of the goods, might be allowed.
    The burden of proving a delivery being on the defendants, held, that the evidence of delivery was insufficient.
    The law of Common Carriers should be strictly applied to Express Carriers.
    BEFORE WITHERS, J., AT CHARLESTON, SPRING TERM, 1855.
    The report of his Honor, the presiding Judge, is as follows :
    “The defendants were “Express” Carriers; and on the 19th March, 1852, at Charleston, gave a paper in writing, acknowledging that they had received, in good order from M. L. Jacobson, at Combs & Co’s office, one trunk marked I. S., care of Isais, New Orleans, Louisiana.
    “ The plaintiff sued for the value of trunk and contents, as having never been delivered according to contract. He adduced in evidence, a letter from the agent of the defendants in Augusta, addressed to him, containing this language: “We received yesterday from Charleston yours of the 28th ult., to that point. On the 19th March, we forwarded one trunk marked J. S., care of Isaacs, New Orleans. It came from Charleston on that day, and went immediately on the same night. It is the first we have heard at this point of its non-arrival. We have written all along the line, and will get it to you as soon as possible. We very much regret the delay, &c.” —(I have underscored the words “ to you.”)
    “ A -witness, called by the plaintiff, spoke to the fact of his having seen a Mrs. Seekendorf packing a trunk in some shop in King street, where- he said he sold goods, i. e., the witness, which he understood was to go from Augusta to New Orleans, as Isaac Stadhecker had gone there: that he believed Seckendorf, the plaintiff’s father-in-law, owned the store : that Isaac did business for his father, — “ That Mrs. Seckendorf was packing the trunk in the back room.” These last words, among others of this witness on my notes I read to the jury ; and on the conclusion of my charge, the defendants’ counsel desired me to say to the jury, that the witness said the goods came from the store; I replied, such precise words were not upon my notes, though I did not myself see where else the goods did come from; yet, I declined to report to the jury any thing else except what I had on my notes, for my memory supplied nothing else; still, if he said what he specified, the jury heard it and would use it as evidence. The counsel rejoined, the witness stated he said so. I sur-rejoined : then, if the jury heard him say so, be it so — my notes were read only to refresh their memories. Such, as near as I can state it, was the colloquy, (all heard by the jury, unless the noise of a most noisy Court room prevent and for this I hope I am not responsible,) out of which one of the grounds of appeal grows.
    “ The same witness gave an account of various goods that he saw packed in the trunk, and made estimates of quantities and values, as nearly as he could, he said.
    “It appeared in evidence, that another witness called, at this plaintiff’s instance, several times, more than twice, on the defendants, in Charleston, concerning the trunk; was told, they ^admitted the receipt of it, and had forwarded to New Orleans ; would write, and as soon as they got particulars, would inform the witness. Calling several times in two or three months, he got no satisfaction; became disgusted, and told them he would turn the case over to counsel, and did. He went at plaintiff’s request, who was then in New Orleans, and it was understood that he and Seckendorf were doing business together. Defendants said the trunk had been delivered.
    “ Upon such evidence, I charged the jury, that plaintiff could not recover, unlesss he showed a right of property, absolute or qualified, in the goods sued for; and whether the facts adduced disproved his right of property, or on the contrary, established an acknowledgment of such right by the defendants, I referred to them, with this doctrine of law, that I did not think a carrier could dispute, in this Court, the right of property of him whom he treated as owner in the undertaking to carry; and they were left to determine- whether Jacobson (mentioned in the receipt) was, and was understood to be the plaintiff’s agent. I charged furth'er, that as to evidence of the goods in the trunk, the law would exact no more specific evidence than the nature of the case admitted — and I thought this might be regarded as a case in which some relaxation of the rule of exactness, as to quantity and value, might be allowed.
    “ Out of this arises other grounds of appeal.
    “The defence rested (mainly and very firmly as the Counsel said, when he forbore to press a motion for nonsuit) upon proof of delivery, as in duty bound. To this point he adduced a deposition of a witness, resident at “ Rising Sun, Indiana,” who represented himself to have been, at a certain time (from October, 1851, to 25 April, 1852,) the discharging agent or clerk of a steamer, “Beacon,” running from Montgomery, Alabama, to New Orleans — that a bill of lading produced shewed the truth in stating that a trunk was received on that boat from a Railroad agent, as he thought, marked “ J. S. care of Isaacs” (not Isais,) “New Orleans”- — -that the same trunk was delivered to “Isaacs,” in New Orleans, by a drayman, and a receipt taken, which had been lost on the return trip of the boat, which sank in a Lake.
    “Upon this a point was made to the jury, whether, if this evidence be true, any proper delivery had been made. I charged them that, if “ Isaacs was not “ Isais,” the trunk had not been delivered : and added, in general and by way of winding up my charge, that the law of common carriers (which I explained briefly) applied to this case, and I thought such law should be strictly applied to it, if it were otherwise satisfactorily made out, as I thought it should, in all cases against Express companies, where their default was sufficiently proved. Out of this arises a ground of appeal.”
    The verdict was for the plaintiff for $200.
    The defendants appealed and now moved for a new trial, on the grounds.
    1. Because, his Honor, the presiding Judge, charged the jury, that where a trunk is sent by this kind of conveyance, packed whether with goods, clothes, or any thing else, the character of the evidence must be somewhat modified and varied from the general rule, so as to require less strictness in the proof of the contents ; whereas, it is submitted that there is no such modification of the general rule, except in the case of a traveller conveyed with his baggage.
    2. Because, his Honor charged the jury, that the law should be “ rigorously and stringently applied to the defendants, for the time would come, when carriers engaged in this business would be entrusted with property of very great value:” whereas, it is respectfully submitted, that the law should not be rigorously and stringently applied to one man any more than to another, and the jury were thus prejudiced by reference to considerations of public policy.
    3. Because, the plaintiff did not offer any proof of ownership or interest in the goods as consignor, and the aspect of the declaration excluded him from claiming as consignee, nor did he even produce any proof whatever that he was consignee.
    . 4. Because, the Judge in rehearsing the testimony of the witness, Henry Speldock, omitted that he said on cross-examination, that the goods belonged to one Seckendorf, and came out of his store, though requested so to do by defendants’ counsel, and though the witness admitted he had said so.
    5. Because, his Honor should have charged the jury, that the letter of defendants, introduced by plaintiff, identified the trunk demanded with that delivered by them.
    
      James Simons, for appellant,
    cited, 7 Rich. 162 ; 12 Eng. C. L. R. 287; 1 Green. Ev., Section 318, note; 10 Watts, 335.
    
      MeBeth, contra.
   The opinion of the Court was delivered by

Glover, J.

The questions made by the grounds of appeal will be considered in the following order:

1. Did the plaintiff prove an interest in the goods as consignor or consignee. ■

2. Was there such a delivery of the trunk as discharges the defendants.

3. Was there error in the charge of the Circuit Judge.

1. The letter of defendants’ agent in Augusta, and the admissions made in Charleston, prove the receipt of the trunk and recognize the plaintiff as owner. Whether he stood in the relation of consignor or consignee to the carrier is not important, if the legal right was in him. That' Jacobson delivered as the agent of Isaac Stadhecker the owner, is consistent with the terms of the paper dated 19th March, 1852, especially after an acknowledgment of the legal right of property in the plaintiff by defendants. The doubts which Speldock’s testimony may have created, respecting the right of property, was proper for the consideration of the jury and their verdict has resolved them.

It was not probable that a witnesss could specify every article in the trunk and its value, and we concur with the Circuit Judge that in this respect “ some relaxation of the rule of exactness might be permitted.”

2. Whether the witness at Rising Sun, Indiana., proved a delivery of the trunk was a fact properly submitted to the jury and their conclusion is sustained by the evidence. Besides the difference in the address of the trunk received and that alleged to have been delivered, there were circumstances not only calculated to create doubts, but to show that there had been no delivery which would discharge the defendants. More than one month after the receipt of the trunk, the defendants writing from Augusta say, “ we have written all along the line and will get it to you as soon as possible.” Yet several times in two or three months, a witness called on the defendants in Charleston and could get no satisfaction. This is inconsistent with a delivery in New Orleans, in April, which, if true, discharged the defendants' and would have been communicated to the plaintiff in answer to his frequent inquiries. The receipt of the goods by defendants having been established, the burden was on them to prove the delivery or the loss by one of the causes which would excuse it.

3. Error is imputed to so much of the charge as states that the law of Common Carriers should be strictly applicable to this case.

The limited exceptions made in their favor manifest the extent of the legal obligation imposed on this class of bailees. The responsibility of all risks is assumed by them except such as result from the act of God and the public enemy. They are bound to the utmost care of goods in their custody and cannot limit their liability either by a general notice, or a special acceptance.

The rule of law prescribing their duties and accountabilities has always been strictly applied to those who assume the employment of Common Carriers. Public policy requires that the obligations attaching to persons voluntarily undertaking, for hire, to carry and deliver goods safely, shall be exactly performed ; and under some circumstances a more rigorous performance of duty and a greater degree of diligence is exacted of them than is ordinarily required. (Ellis vs. Welsh, 4 Rich. 475.)

There are considerations justifying a strict application of the law of Common Carriers, to Express companies. They profess to employ trusty agents who are charged with the safe custody and speedy transit and delivery of all packages put in their charge. The effect of these inducements is in some measure to supersede the forwarding merchant and to limit’the liability of Rail Road and Steam Boat Companies, who may be as faithful and are certainly as responsible agents. If they shall, by the promise of decided advantages over the usual modes of transportation secure most of the business generally entrusted to Common Carriers, the public is concerned that they should be held tó a rigid fulfilment of the promise. They cannot attain a greater speed than the Railroad and Steamboat which conveys them, and there is no proof that they are in other respects, more trustworthy carriers.

The only advantages which, in truth, they can offer is the safer custody and more certain delivery of goods to the consignee without storage. These temptations may induce the public to employ them at an increased rate and they have no reason to complain of an exact application of the rule of law 'which enforces the responsibility which they voluntarily assume.

We should be regardless of the great interests daily committed by the public to Express Companies, with a confidence induced by their tempting offers, if their liability for a safe carriage and delivery is not rigidly enforced. s

A strict application of the law to Common Carriers is necessary for the protection of the large amount of property committed to the hands of strangers for transportation to distant points, and certainly from such an application Express companies have no claim to exemption. It is a just and reasonable law which requires them to'perform strictly what they have promised, and for which they have been paid.

We therefore approve the instruction of the Circuit Judge in this point, and the motion for a new trial is dismissed.

O’Neall, Wardlaw, Withers, Whitner, and Munro, JJ., concurred.

Motion dismissed.  