Gorham Manufacturing Co. v. Fargo

By the court, Fbeedman, J.

The American Merchants’ Union Express Company was, in respect to the package in question, a common carrier. The package was addressed to well known manufacturers of silver. There was no fraud, imposition, unfair concealment or disguise of the package, so as to entitle the defendant to claim the benefit of the rule laid down in Warner agt. Western Transportation Company (5 Robt., 490). The external appearance of the package was in harmony with its contents, and, in connection with the size and weight of the package, indicated clearly that the latter was not one containing ordinary merchandise. Fío proof was adduced that coin is not commonly packed as this was; and there is no claim that any verbal misstatement was made *93by any one or to any one in the matter. In such case the rule is that a consignor is not bound to volunteer any information to the carrier, or make any statement whatever, unless he is asked by the carrier.

The carrier is bound to make the inquiry as to the value of the box, or the articles delivered to him, and the owner must answer at his peril; and if such inquiries are not made, and it is received for such price for transportation as is asked with reference to its bulk, weight, or external appearance, the carrier is responsible for the loss, whatever may be its value.

Defendant’s receiving clerk testified that it was the general rule to ask the question, “ What is the value of this package % ” and, if information was refused, not to decline carrying, as the company lawfully might, but to receive the package and to place on the receipt “Value askéd; not given.” But in this case he asked no questions and undertook to use his own judgment. And, finally, it should be pointed out that the defendant did not show under what circumstances the package was lost, or show that its loss resulted from the difference in care, which the company was accustomed to exercise toward merchandise and valuable packages.

From this it follows that, being a common carrier and having received the package without a special contract in limitation of the common-law liability, and the same having been lost while in the carrier’s possession, but not through the act of God or of the public enemy, the company is liable for its value within the general' rule as to the responsibility of common carriers; and as no request was made for the submission of the case, or of any particular question of fact involved therein to the jury, a verdict was properly directed in favor of the plaintiff (Schroff agt. Bauer, 42 How., 348).

Defendant’s exceptions should be overruled, and judgment absolute ordered for plaintiff on the verdict, with costs.

Mouell, J., concurred.