
    Julius M. Lyon, Respondent, v. William M. Barrett, as President of the Adams Express Company, an Unincorporated Association Consisting of Seven or More Persons, Appellant.
    (Supreme Court, Appellate Term, First Department,
    December, 1915.)
    Negligence — evidence of — carriers — burden on plaintiff to establish negligence.
    In an action against an express company to recover the value of a diamond ring delivered to it for transportation to a consignee C. O. D. in a package directing defendant to permit an examination of the contents before delivery and payment, there was no evidence of negligence in the defendant or its 'connecting carrier in keeping the package which at its destination was examined by one claiming to be the consignee who stated that he would return with an expert jeweler to determine whether the diamond was genuine, but he never called for it, and after due notice by mail to the shipper and consignee the ring was returned to the shipper in a sealed package and on inspection in the presence of defendant’s clerks the shipper declared that an imitation stone had been substituted for the one which was shipped. Held, that a finding of fact by the'trial justice that defendant was negligent in so permitting an inspection of the jewelry in question that the consignee was enabled to appropriate the genuine and substitute an imitation diamond was unsupported by the evidence and that judgment in favor of plaintiff should be reversed and a new trial granted.
    That the circumstances proved rebutted any negligence on the part of defendant and the burden was on plaintiff to establish the defendant’s negligence and that it or its connecting carrier was responsible for the alleged substitution.
    Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, entered in favor of the plaintiff for $405 and costs after trial by the court.
    Stewart & Shearer (Harry K. Davenport, of counsel), for appellant.
    David B. Baum (S. C. Sugarman, of counsel), for respondent.
   Page, J.

The record in this action shows that the plaintiff delivered to the defendant company a diamond ring to be transported to Birmingham, Ala., consigned to one J. A. Gooch, C. O. D. $405, with instructions printed upon the package directing the carrier to allow an examination of the contents before payment. The package was carried to its destination and was' there examined by a person who claimed to be the consignee. The alleged consignee stated that he would return with an expert jeweler to determine whether the diamond was genuine. He never called again for it, however, and after due notice had been sent by mail to both shipper and consignee it was returned to the shipper in New York in a sealed package. The shipper inspected the ring in the presence of the defendant’s clerk and declared that an imitation stone had been substituted for the one which was shipped. He refused to accept the ring tendered by the defendant and brings this action to recover the value of the diamond, for the failure of the defendant to return it. The defendant placed in evidence a blanket agreement covering future shipments signed two years prior to the present shipment, whereby the plaintiff agreed with the defendant as follows: 1. Whereas we, the undersigned, intend hereafter to ship by the Adams Express Co. packages consigned C. O. D. by us to points on the lines or routes of said express company and also packages consigned C. 0. D. by us to points beyond or off the lines or routes of said express company, which packages shall be shipped as ordinary merchandise, but shall also contain watches or other articles of jewelry which under the tariff of rates of said express are carried only at special rates, and shall bear instructions to said express company to allow examination of contents of said packages by consignees before acceptance; now, in consideration of the said Express Company now and hereafter accepting such goods shipped as aforesaid, with the privilege of examination, as ordinary merchandise at ordinary merchandise rates, and for one dollar and other valuable considerations to us in hand paid, the receipt whereof is hereby acknowledged, we hereby agree that said Express Company shall not be liable for any loss, shortage or damage which shall or may hereafter accrue to us arising out of the loss or misdelivery of or failure to deliver, or damage to any watch or other article of jewelry which may be contained in any of said C. 0. D. packages which shall or may be hereafter shipped by us either to points upon or points off the lines or routes of said Adams Express Company.”

Assuming, as claimed by the plaintiff, that this agreement did not and could not lawfully operate as a release of any claim for damages to the shipment in suit arising out of the negligence of the defendant, the question to be determined upon this appeal is whether the plaintiff has shown such negligence. The defendant showed by the testimony of the three clerks of the Southern Express Company at Birmingham, Ala., who had the package in charge, that a man claiming to be Gooch, the consignee, inquired for the package the day before it arrived and called again on the day after its arrival to examine it. The package was then taken out of an iron safe by Vance, the on-hand clerk for the Southern Express Company, who was the only man who knew the combination of the safe. Vance handed the package to Atcheson, assistant, on-hand clerk, who waited on the consignee at a broad counter behind which the clerks were employed. Before Vance gave the package to Atcheson, he informed Ould, secretary to the agent of the Southern Express Company at Birmingham, that a $400 C. O. D. package was about to be examined and Vance and Ould stood a few feet away and watched the transaction while Atcheson waited upon Gooch. Vance was compelled to turn away for a few minutes, but Ould did nothing during the examination of the package by Gooch but watch him closely. Both Ould and Atcheson testified that Gooch pushed the button which sprung the box open and took the ring in two fingers, examined it, said it was a pretty stone and returned it to the box. He then said he would return later with a jeweler to appraise the stone before he accepted it. Ould and Atcheson both kept their sight fixed upon the ring until it was returned to the box, at which point Vance returned, took the ring and box and placed them again in the safe, where they remained until, on instructions from the plaintiff, the package was taken from the safe by Vance, sealed and returned to the plaintiff by the Adams Express Company. It was tendered to the plaintiff with seal unbroken and in apparent good order.

Upon this uncontradicted evidence the learned trial justice found “asa fact that the defendant was negligent in so permitting an inspection of the jewelry in question, that the consignee was enabled to appropriate the genuine and substitute an imitation diamond.” I am of the opinion that this finding is unsupported by the evidence. The defendant was compelled by the terms of its contract with the plaintiff to allow the consignee to inspect the ring before delivery. Just what precaution it or its clerks or agents could have taken to prevent substitution, which they did not take, is not apparent. They did not depend upon the vigilance alone of the clerk who waited on the consignee but two other men stood by and watched the transaction with fixed attention. If the substitution was made it must have been done by a person so skilled in the art that no amount of vigilance would have detected the trick. Furthermore the plaintiff testified that the stone was ordered by .mail from an advertisement and was not exactly like the one pictured in the advertisement, but as near to it as he could find for the price offered. It would have been difficult, therefore, for the consignee, Gooch, to have on hand for the purposes of substitution a bogus ring exactly like the one shipped in size, color and setting unless he had advance knowledge from New York as to the exact ring which was sent.

There was no evidence of negligence in the defendant or its connecting carrier in keeping the package. The evidence shows that it arrived with unbroken seal at Birmingham, was kept there in an iron safe to which but one trusted clerk had the combination, was sealed again by the said clerk and returned with unbroken seal to the shipper. The respondent claims that the so-called delay in returning the goods from November twenty-sixth when the shipper gave instructions by mail to return it until December twenty-second when it arrived in New York was prima facie evidence of negligence. There is nothing to show, however, that this delay in any way contributed to the loss. The ring was in the safe at Birmingham until shipped, after which it arrived in due course. The delay in returning it was merely due to the routine of the express offices as shown by the correspondence in evidence. The respondent also relies upon the well known rule that proof of non-delivery of an article by a carrier or bailee raises a presumption of liability which places upon the carrier or bailee the burden of explaining its loss. To satisfy this burden the defendant has fully accounted for the package during every moment of time while it was in the custody of the carriers and under circumstances which rebut negligence. Thereafter the burden was on the plaintiff to establish the defendant’s negligence and show that the defendant or its connecting carrier was responsible for the alleged substitution of a spurious diamond for the genuine one which was shipped.

Guy and Philbin, JJ., concur.

Judgment reversed, and new trial granted, with thirty dollars costs to appellant to abide event.  