
    Edward Haslam, Plaintiff and Respondent, v. The Adams Express Company, Defendants and Appellants.
    1. Uncontradicted evidence, that an incorporated Express Company engaged in the transportation of goods, had done business for years as a common carrier with all that called, establishes prima facie that such Company is a common carrier.
    2. “ What is the usual custom of Express Companies, in delivering packages in this city,” ? (New York,) put to the driver of the wagon of an Express Company, is inadmissible when not preceded by proof that there is a custom, and that he is competent to state what it is; when such question is put to elicit evidence that a delivery of goods, carried for a person doing business in an upper story of a building, may be made by leaving them at the foot of the stairs on the first floor, and notifying him thereof.
    3. An instruction to the jury, that if the plaintiff personally or by his agent acquiesced in such mode of delivery, or gave the defendants to understand by a customary course of business or otherwise, that he would consider such a mode of deposit a delivery; or if the plaintiff’s agent so acted as to induce the defendants to believe that he accepted the goods at the place where they were left, the defendants were not liable, but that if no such delivery had been made or accepted, they were liable: Held, to be as favorable for the defendants upon the evidence, as the rules of law warranted.
    (Before Bosworth, Ch. J., and Robertson, J.)
    Heard, February 20;
    decided, March 10, 1860.
    
      Ah appeal by the defendants from a judgment, and from an order denying a motion made by them for a new trial. The action was tried before Mr. Justice Pierrepoht and a jury, on the 27th of June, 1859.
    The complaint states, that the defendants are a - Company incorporated1 and established as common carriers; that as such, they received on the 6th of July, 1857, at Boston, a box of goods the property of the plaintiff of the value óf $91.59, to be carried from Boston and delivered to the plaintiff at ¡Eew York; a failure to deliver the goods and prays judgment for such value with'interest.
    The answer, first., admits that the defendants. are an incorporated Company, but denies that-they are" common carriers; second, it admits that on the 6th of July, 1857, they received at Boston a box or package of the plaintiff, to be carried by them as an Express Company and not otherwise, and to be delivered to the plaintiff at Eew York, and denies any knowledge of the contents of the box, or of its value; third, it alleges the carrying and safe delivery of the said box, and denies all other allegations of the complaint.
    The plaintiff gave evidence of the delivery of a box with such contents as the complaint specifies, to Pratt & Curtis, express-men at Chelsea, near Boston, to be delivered by them to the de fendants, to be carried by the latter and delivered to the plaintiff at 181 Broadway, Eew York, and that they “do business as common carriers with all that call.”
    
      F. Haslam, testified, that “they were to carry the package to Edward Haslam, the plaintiff, at 181 Broadway.” * * “ The box was to be delivered at 181. Broadway. Eothing was said about the charge for carrying the box. Ten years ago I did business with the defendants. ' I have done no business with them since the box was lost.” The plaintiff" then rested; and the defendants moved to dismiss the complaint, which motion was denied, and they excepted.
    The defendants then called Harvey Marsh, a driver of one of their wagons, and gave evidence tending to show, "that, in July, 1857, he took a box for the plaintiff and left it inside of the door at the foot of the stairs on the ground floor, and then went to the plaintiff’s place of business in the 4th story, -and the plaintiff not being in, told a boy he found there, “1 have got a box at the foot of the stairs by Express,” and that he must take care of it. That he then went down, saw the box standing where he had placed it, and then drove off.
    
      Alonzo Lockwood, a driver of a wagon for the defendants, testified, that he went to the plaintiff the same day, to get a receipt for the delivery of the box, and the plaintiff said he had not received any. He was asked this question: “What is the usual custom of Express Companies, in delivering packages in this city?” On objection the question was excluded, and the defendants excepted.
    
      John JBoey, the manager of the defendants’ freight department was asked, and without objection answered these questions. “Are you acquainted with the customary mode of delivering boxes of this size, when the place of delivery is not on the first floor? A. I am. Q. Is there a general custom in respect to the delivery of packages? A. There is. It is our invariable custom to leave packages of this size down stairs.”
    
      JErastus Littlefield, of Kinsley & Company’s Express, testified, “ I know that there is a custom in this city among Express Companies as to delivering boxes, &c. When the box is bulky or weighty, it is the custom to leave them down stairs, and notify the parties. In such case, we never take them up stairs.”
    The plaintiff then testified, that neither the defendants, nor Kinsley & Company’s Express had ever left any thing for him down stairs, that the boy alluded to was an office boy, about 14 years old, and had no authority to receive packages; that he never heard of a custom to deliver boxes by leaving them down stairs; that the defendants never claimed “ that any such custom as this, as regards delivery to him, existed.” That he had always received boxes of the size mentioned, up stairs at his room.
    
      Alfred Gr. Badger, testified, that he occupied the same room with the plaintiff, that he received packages almost daily from the defendants. “ They ordinarily deliver them in my room. They always so deliver them. All packages to the plaintiff were usually delivered in the room.” No other witnesses were examined.
    When the testimony was closed, the defendants’ counsel renewed the motion to dismiss the complaint, which motion was denied, and the defendants thereupon duly excepted.
    
      The counsel for the defendants then requested the Judge to charge the jury —
    That if they should find from the evidence that the defendants had delivered the box to the plaintiff in the usual and customary mode practised by expressmen in the city of New York, that their verdict should be-for the defendants.
    The defendants’ counsel also requested the Judge to charge the jury, that if they should find that the defendants had delivered the box in the mode sanctioned by previous transactions of similar character with the plaintiff, that their verdict should be for the defendants.
    The defendants’ counsel also requested the Judge to charge the jury, that if they should find that the defendants had caused the box to be deposited in a secure place within the building, where the plaintiff kept his office, and had caused immediate notice thereof to be given to the person in charge of the plaintiff’s office during business hours, and while he was absent, and that person’s conduct led the defendants to believe that he was satisfied with such delivery, and would attend to the box, that their verdict should be for the defendants.
    The defendants’ counsel also requested the Judge to charge the jury, that if they should find that the person in charge of the plaintiff’s office had not used diligence in taking charge of the box after notice, and that but for such neglect the loss would not have occurred, that their verdict should be for the defendants.
    The Judge declined to charge in the language of the requests, but charged the jury as follows, to which exception was duly taken by defendants:
    That the important question in the case was, whether the Company had made a legal delivery of the goods. That depositing a light package at the street-door of the building, in the upper part of which the plaintiff’s office was situated, was not an actual delivery to the plaintiff. But, that if the jury were satisfied from the evidence that the plaintiff personally, or by his lawful agent, acquiesced in such mode of delivery, or ever gave the defendants to understand by a customary course of business or otherwise, that he would consider such mode of deposit a delivery, then the defendants were- not liable.
    
      That if the boy had authority from the plaintiff to act as his agent in this matter, and as such agent accepted the delivery as made, or being the plaintiff’s agent, so acted as to induce the defendants to believe that he accepted the goods at the place where they were left, then sufficient delivery was made out, and the defendants were not liable. But that a deposit of a light package on the pavement of the street was not of itself a delivery in a case like this, unless in some manner induced or accepted by the plaintiff or his agent; and that if the jury did not find from the evidence that any delivery had been made or accepted as above mentioned, then the defendants were liable.
    The defendants’ counsel thereupon excepted to the whole of such charge, so far as the same was not in accordance with the defendants’ request to charge.
    The jury found a verdict for the plaintiff for $104.41.
    The defendants moved for a new trial on a case, and the motion was denied. From the order denying it, and from the judgment entered on the verdict, the present appeal is taken.
    
      E. H. Owen, for the appellants.
    I. The Judge, at the trial, erred in denying the several motions to dismiss the complaint.
    There is no evidence that the box spoken of by the defendants’ witnesses was the one which the plaintiff had given to the Chelsea expressman to be delivered to them; nor could it be legally inferred from the evidence that it was the same.
    There was no sufficient evidence that the defendants were common carriers, or that they were liable as such.
    II. The Judge also erred in excluding the evidence offered in regard to the usage and custom among expressmen as to the mode of delivery.
    Although evidence upon the subject was allowed to be given at a subsequent stage of the cause, yet that did not cure the error in excluding what had been previously offered.
    The witness, by whom it was proposed to prove such usage, may have, and for aught that appears, had, in fact, left the Court before the subsequent ruling upon the subject. He was not recalled; and by' such erroneous ruling, the defendants were, in. fact, deprived of the benefit of this testimony upon the subject. (Foster v. Thompson, 5 Gray, [Mass.,] 453.)
    III. The Judge.'also erred:
    1. In refusing to, charge the jury .that if they should find that the box had been delivered “in the usual and.customary way, practised by expressmen in the city of Few .York, that they should render a verdict for the defendants.”
    2. In his refusing to charge the jury that if they found “ that the person in charge of the plaintiff’s office had not used diligence in taking charge of the box, after notice, and that but for such neglect the loss would not have occurred, the verdict should be for the defendants.”
    IY. The Judge also erred in his charge to the jury. It tended to mislead the jury, and to draw their minds away from the true issues.
    1. There was error in his statement to them that depositing a light package at the street-door of the building, in the upper part of which the plaintiff’s office was situated, was not an actual delivery to the plaintiff.
    Admitting this to be so, as matter of law, still it was not borne out by the facts or the evidence, and it was, therefore an error; moreover, the issue was not as to an actual delivery, but whether or not there had been such a delivery as in law discharged the defendants from further responsibility. It was error to designate the box as a light package, or as having been deposited at the street door, for it was in fact not so deposited, and was not within the ordinary meaning of that term, at the door or upon the sidewalk. Such remarks were calculated to mislead the minds of the jury.
    2. There was error also in the charge that “a deposit of a light package on the pavement of the street was not of itself a delivery in a case like this, unless in some manner induced or accepted by plaintiff, or by his agent.”
    As matter of law, it may be conceded that such a deposit of a light package, would not be a sufficient delivery, but the charge was not borne out either by the facts or evidence in the case, as the box was not a light package, nor was it left upon the pavement. (McIntyre v. Kline, 30 Miss., [1 George,] 361.) The judgment of the Special Term should be reversed, and a new trial ordered.
    
      Charles W. Prentiss, for respondents.
    I. The defendant was proved to be a common carrier.
    Ho evidence was offered by defendant to the contrary.
    This company has been held to be a common carrier in Newstadt v. Adams and others, (5 Duer, 43,) Stoddard v. Long Island Railroad Company. (5 Sand., 180.)
    Other express companies are held common carriers. (Russell v. Livingston, 19 Barb., 346; also by General Term, this district, Sept., 1858, Sherman v. Wells; Teall v. Sears, 9 Barb., 317; and generally, Redfield on Railways, 240, 249; 1, Angel on Carriers, §§ 68, 69, 70.)
    H. The box was received by the defendant to carry, as claimed by plaintiff.
    This is admitted by the pleadings, and is proved by defendant’s own testimony.
    HI. The only question, then, is whether it was delivered to the plaintiff according to contract.
    I. Defendant having agreed to deliver it to the plaintiff, is not at liberty to show by custom a delivery not to the plaintiff. (Hinton v. Locke, 5 Hill, 437.)
    2. If he is, the custom must be uniform, general, and of such permanency, that the Court or jury can say it should have forced itself upon the plaintiff’s notice.
    It should be known to the plaintiff. (Cole v. Goodwin, 19 Wend., 251; Gibson v. Culver, 17 id., 305.)
    3. Ho such custom was shown, but the contrary.
    4. If it is claimed defendant delivered it to an agent of plaintiff, defendant must clearly establish the agency. (Angell on Carriers, §§ 323, 324, 432, 454; Ostrander v. Brown, 15 John., 39.)
    5. The nature of the express business being a carrying of parcels, demands a personal delivery, and the attempt to show the alleged custom was merely showing a constant effort by defendant to evade its just responsibilities. (Redfield on Railways, p. 240.)
    6. To sustain the ancient vigor of the common law as to common carriers, is the settled and sound policy of the law of this state. (Hollister v. Nowlen, 19 Wend., 234.)
    
      IV. The exception to the charge and to the refusal to charge is too general to be available. (Hunt v. Maybee, 3 Seld., 266; Jones v. Osgood, 2 id., 235.)
    V. The charge is correct, and the refusal to charge, likewise.
    VI. The question excluded was improper.
    1. It was too general.
    2. Presupposed such a custom to exist.
    3. The exception, if any exists, was obviated by the proper question being allowed immediately after; and the whole trial went upon this basis.
   Robertson, J.

The motion to dismiss the complaint in this case was based upon two grounds, viz.: First, that the plaintiff had failed to prove that the defendants were common carriers; and, Secondly, that he had not proved a delivery of the goods described in the complaint to the defendants.

The defendants were an Express Company incorporated by the State of Massachusetts, and were engaged in the business of carrying goods between the cities of Boston and New York; a witness for the plaintiff testifies that he had done business with the defendants for about nine or ten years, and “ they did business as common carriers with all that called.” This was uncontradicted, and was amply sufficient to go to the jury on the question of their occupation. The evidence upon the subject of delivery consisted of the testimony of a witness who described the box delivered and its size; and also of a wagon driver of the defendants who testified to carrying a box about the time the one in question should have arrived, and leaving it at the front door of the building where the plaintiff had his office; the answer of the defendants admits the receipt of a box to be carried by them as expressmen, and avers its delivery to the plaintiff. This appears to be sufficient to be left to the jury as evidence of its original delivery to the defendants.

A question, however, was made upon the presentation of the case to the jury, as to the delivery of the goods by the defendants, and the rule by which such delivery should be governed, which requires a little more examination. The plaintiff occupied the fourth floor in the rear of a building on Broadway in the city; the driver who brought the box in a wagon took it out and placed it within the outside door of such building upon a platform which reached to the stairs; he then went up stairs to the plaintiff’s office and notified a boy therein, about fourteen years of age, that he had “ got a box at the foot of the stairs by express, and that he must take care of it;” he then came down found the box where he placed it and drove off. The boy was not authorized to receive packages for the plaintiff, and the box weighed fifty or sixty pounds, as testified to by the driver. This being clearly not a delivery to the plaintiff by any general principle of law, the defendants sought to establish a custom among expressmen to make such mode of deposit a delivery. For this purpose, a question was put to a driver of the defendants, as to “ what was the usual custom of Express Companies in delivering packages in this city,” which was ruled out, and I think properly for various reasons; the witness was not established to be such an expert as to entitle him to speak of a usage; the question was technically irregular, as no custom had been proved to exist," and it was confined to the custom among the Companies, and not extended to those who dealt with them. The question was put in a more proper shape to establish a usage to other witnesses, and answered. Two witnesses testified to the invariable custom to leave boxes which are weighty or bulky down stairs, and notify a party, whose office is up stairs, while another witness and the plaintiff testified that neither of the Companies, of which such witnesses were agents, ever left boxes of the size of the one in question down stairs, but always delivered them personally to the party who was to receive them. It is very plain that a custom, so ill defined as this, should not be allowed to trench upon settled rules of law, for the weight or the bulk of the articles remains entirely uncertain; besides, it does not appear that this usage was well known to all persons dealing with such Companies, (Cole v. Goodwin, 19 Wend., 251; Gibson v. Culver, 17 id., 305,) nor was its origin, or continuance for any length of time shown. Nor does it seem to me, that such a usage could ever begin to establish a legal custom; the delivery of goods at a tavern or known stopping place of a carrier where they are always in charge of some one, as in Gibson v. Culver, (17 Wend., 305,) or on a wharf after giving notice and allowing a reasonable time for a consignee to take possession is entirely different from abandoning parcels intrusted to a common carrier in an exposed place, and notifying the owners that they are so abandoned. It would in all cases be a very, doubtful, chance, whether the owner in a fourth story or a marauder in the street would first reach the prize, even supposing, the owner or his representative ready at all times to rush swiftly down stairs and able to carry the package up which was too heavy for the driver; and indeed the box in this case does not seem to have been one which the only person notified (a boy of fourteen years of age) could have readily transported to the fourth story. The law is exceedingly jealous of. any innovation upon the responsibility of common, carriers, even by express .contract, much more by usages, (Hollister v. Nowlan, 19 Wend., 234,) and the express business most of all requires that the. most uniform and constant dereliction of duty. however successful, should not enable express carriers to .evade liability for a. lost parcel committed to their care, (Redfield on Railways, 240,) by getting up a usage.

Even, however,..if the evidence in this case had . tended to establish a legal custom binding upon all persons engaged in the business .of sending or receiving parcels.. by. express,-. I do not think there was any request to ¡charge, whose refusal should maleé the.verdict erroneous ?. The first request as to “ usual and customary modes of expressmen.” was wrong, because it did not require the assent of those sending by express, or even their knowledge of such a practice. The' second request, as .to the mode sanctioned by previous transactions between the parties was not warranted by any evidence, 'the only' testimony given on the subject, disproving any. such mode as that claimed; besides which, such request was substantially .complied with. The third and fourth requests in reference to acceptance by the plaintiff’s agent, were unjustifiable in any other form than that' in which the third was substantially charged, rendering the fourth unnecessary; the conduct constituting an acceptance of the delivery made, should not only'have been such as actually led the defendants to believe such acceptance had been made, but such as would be adapted to lead any one so to believe; but even the former was charged as requested.

I can find no fault in any rulings at the trial or the charge of the Judge before whom it was tried, and am therefore of opinion the judgment should be sustained.

Bosworth, Ch. J., concurred in the conclusions of Robertson, J.

Judgment affirmed.  