subjects of a similar character might be legislated into the statute books, and that the foreign insurance companies would be required to consent thereto, and that the state had a right to exclude foreign corporations from doing business therein. The court didn't hold the statute to be unconstitutional because it provided a fee to the prosecuting attorney in each case brought against insurance companies, although the Supreme Court of the United States in Texas and Kansas cases had held similar laws to be unconstitutional, but it did hold that the statute in question was unconstitutional because under the terms of the statute "an agreement to lower the rates becomes unlawful if that statute is valid." The court intimates that such a provision is not the exercise of a police power on which so much stress was laid by the attorney-general in his application of the case of Paul v. Virginia. The statute under consideration was intended to prevent any combination of capital or skill, or acts whereby the price of any article, commodity, use or merchandise may be fixed, and is intended to prevent restrictions in trade, the limiting of the production, or the increase or decrease of the price of any commodity, and to prevent competition in insurance, or in making, transporting, selling or purchasing any article, or to fix any standard whereby its price to the public shall in any manner be established, or to enter into any contract whereby any party is not to deal in any article below a certain price, or by which the parties agree to keep the price at any sum. The statute also declares that any persons violating the same shall be conspirators, and punished accordingly, that any corporation of the state violating the same shall have its corporate existence declared forfeited by suit, and any foreign corporation violating the same is to be driven from the state, that all contracts in violation of the statute are absolutely void, that any purchaser of a commodity in violation of the statute can plead the violation as a complete defense, and any person injured in his business, property or employment by any violation of the statute can recover damages, any person or corporation accused of violating the statute can be compelled to furnish all books and papers on the question, and finally the statute exempts any assembly or association of laboring men from the provisions of the statutes. The court in its decision says: "It cannot be said of this statute that any one material provision may be held void and allow the balance of the statute to stand and be enforced. Of some statutes that rule can be invoked. If this statute is valid two men in the same line of business cannot form a partnership if he tends to maintain prices. Nor can a corporation be formed by two or more, if by so doing the price is maintained. The statute is not a step, but it is a long stride, hundreds of years backward, when monarchs, cabinet officers and every parliament decreed the price to be paid for a day's labor, and the cost of all necessaries of life, even to the loaf of bread." The court further says on this same subject: "Jurists and statesmen, practically without conflict, have repeatedly said 'the right of contract is the greatest of all blessings enjoyed by a free people, and guaranteed us by a constitution so long as that instrument may last." And the court quoting from the constitution that "no man shall be deprived of the equal protection of the laws." calls attention to the fact that "the statute expressly excepts from its provisions assemblies or associations of laboring men." The court holds that the case of Waters-Pierce Oil Co. against the state of Texas, 177 U. S. 28, does not cover this case because that in the Texas case the corporation entered the state and was licensed at a time when there was a valid statute prohibiting certain corporations from doing certain things, and that the complainants in the present case were rightfully in Nebraska when these illegal or unconstitutional statutes were passed. The court distinctly holds that the legislature of Nebraska can place onerous burdens on foreign insurance companies, and they can discriminate in favor of Nebraska insurance companies, but says that statutes with which I am dealing apply to all insurance companies, resident and foreign, and the statutes are equally void. in my judgment, as to all." the TERMINATION OF EXTRAORDINARY LIABILITY OF CARRIER OF FREIGHT. It is the policy of the law to secure from common carriers the highest degree of care and diligence with reference to the goods intrusted to them. Before the introduction of railroads the carrier by land was liable for loss of or damage to goods intrusted to him for transportation till they reached the hands of the consignee, unless the loss or damage was occasioned by the act of God or of the public enemy. The rule that the liability of the carrier is that of an insurer against loss or damage has been long held to be subject to exception in cases where the loss or damage is occasioned by, 1. The act of God: 1 Merchants' Disp. T. Co. v. Hallock, 64 Ill. 286. 2 Willock v. Pa. R. Co., 166 Pa. St. 184, 45 Am. St. Rep. 674; McCarthy v. L. & N. R. Co., 102 Ala. 193. 3 In this term are included accidents which are the result of natural causes, and which are beyond human power to prevent; as earthquake, lightning, death, etc. Long v. Pa. R. Co., 147 Pa. St. 343; Merchants' Disp. T. Co. v. Smith, 76 Ill. 542; Maybin v. S. C. R. Co., 8 Rich. (L.) 240, 64 Am. Dec. 753. 2. The act of the public enemy ;* 5. The inherent nature of the goods.7 The basis of the carrier's libility is the trust reposed in him; and the liability can arise on a complete delivery to him of the goods for transportation, and the delivery must be for immediate transportation; otherwise, the liability of the carrier will be that of warehouseman merely. However, to constitute delivery and acceptance no receipt or other writing is necessary." Thus, to illustrate, if goods are delivered at a railway company's storehouse to be kept till further orders and directions as to shipping, destination, etc., the company is liable, not as carrier, but as warehouseman.10 And so, after the goods are delivered to the carrier, if anything remains to be done by the shipper to conform to the law or the contract, the relation of shipper and carrier has not begun." Where a railway company allows wool to be stored in its warehouse without any arrangement as to shipment, it will be held liable in case of destruction by fire only on proof of gross 4 Coggs v. Bernard, 2 Ld. Raym. 909; Liv. L. C. Liverpool S. S. Co. v. Phoenix Ins. Co., 129 U. S. 397. Mobs, robbers, and strikers cannot be classed as public enemies, as the term is used in this exception; otherwise with pirates who are the Ishmaelites of commerce. R. Co. v. Nevill, 60 Ark. 375, 46 Am. St. Rep. 208. While a mere refusal of his employees to work does not relieve the carriers from liability (Pittsburgh, Ft. Wayne & C. R. Co. v. Hazen, 84 Ill. 36, 25 Am. Rep. 422; Haas v. K. C., Ft. S. & G. R. Co., 81 Ga. 742), the rule is otherwise where there is an accompanying feature of intimidation and mob violence which the carrier cannot overcome. Empire Transp. Co. v. P. & R. Coal, etc. Co., 35 L. R. A. 623, and cases cited in note. As where goods are seized in transit, and condemned to destruction because they are infected by disease, or where intoxicating liquors are destined to a use contrary to the laws of the states. R. Co. v. O'Donnell, 49 Ohio St. 489, 34 Am. St. Rep. 579. 6 As where he conceals from the carrier the character of the goods shipped, and such concealment is the cause of the loss. McCarthy v. Louisville R. Co., 102 Ala. 193, 48 Am. St. Rep. 29. negligence.12 The liability of the carrier when acting in that capacity has been explained as the liability of an insurer; and the exceptions to the rule have been set out. As contradistinguished from the high degree of liability attaching to the carrier as a carrier, a warehouseman is responsible for ordinary care merely, and is not liable for the destruction of the property by fire or by inevitable casualty, or for its loss by theft. 18 It will be clearly seen that by reason of the different duties and the varying nature of the liability it is frequently of the utmost importance to determine when the carrier's duties as a carrier cease, and when his duties and consequent liability as a warehouseman begin. As to this there are two widely divergent views. But fortunately the courts of the various states have, as a general thing, taken their stand squarely on the one side or on the other. One set of courts follows the rule laid down in 1854 by the Supreme Court of Massachusetts, and which is known as The Massachusetts Rule.-This is, that the liability of carrier as carrier is ended when he has carried the goods to their destination and has placed them in his warehouse to await delivery to the consignee. From that moment he is responsible as warehouseman only. This rule has been adopted in Illinois, Indiana, Iowa, Georgia, Missouri, North Carolina, Tennessee and South Carolina. The other view was adopted by the New Hampshire court in 1856, and is commonly referred to as The New Hampshire Rule.-Under this view the liability of the carrier, as such, is perpetuated until the consignee has had a reasonable time after the arrival of the goods to inspect them and take them away in the usual course of business. This is the rule more generally adopted, as will be seen by reference to the decisions hereafter cited from the courts of Alabama, Arkansas, Connecticut, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Nebraska, New York. 14 case is Norway Plains Co. v. Boston, etc., R. Co., though the rule was announced in the previous case of Thomas v. Boston, etc., R. R. Co.15 Under this rule the carrier's liability does not cease until the goods are unloaded from the car, 16 though neither notice nor delivery to the consignee personally is necessary to relieve the carrier from his liability as insurer.17 "It is part of the company's duty as carrier," said the Supreme Court of Massachusetts in Rice v. Boston & W. R. Co.,18 when it has brought the goods to their destination, or to the terminus of its road, to unload them with due care and to place them where they will be reasonably safe and free from injury." The contract for carriage calls, not merely for the transportation to a particular point, but also for the delivery of the merchandise to the consignee, or putting it into a suitable place where it can be received by him. Thus, where a cargo of assorted coal was unloaded on the ground at the place of destination, and could. not be gathered up without taking up dirt and mixing the different kinds of coal, there was a recovery for the damage. 19 In Norway Plains Co. v. Boston & M. R. Co.,20 these points were covered by Chief Justice Shaw in the following language: "Although there is no separate charge for storage, yet the freight to be paid, fixed by the company, as compensation for the whole service, is paid as well for the temporary storage as for the carriage. This renders both the services, as well the absolute undertaking for the carriage, as the contingent undertaking for the storage, to be services. undertaken to be done for hire and reward. We may then say in the case of goods transported by railway, either that it is not the duty of the company as common carriers to deliver the goods to the consignee, which is more strictly conformable to the facts, or, in analogy to the old rule that 141 Gray, 266, 61 Am. Dec. 423. delivery is necessary, it may be said that delivery by themselves as common carriers to themselves as keepers for hire, conformably to the agreement of both parties, is a delivery which discharges their responsibility as common carriers. If they are chargeable after the goods have been landed and stored, the liability is one of a very different character, one which binds them only to stand to loses occasioned by their fault or negligence." If the consignee is not ready to receive the goods on arrival, the carrier can discharge himself of bis liability by storing them safely in charge of competent servants, and ready to be delivered when called for by the proper parties." The rights of the parties are not affected by the fact that the merchandise is placed on a platform, instead of being unloaded directly into the warehouse.22 Modification Depending on the Nature of the Consignment.-No absolute rule can be laid down which will cover, in all cases, the acts which will relieve the carrier of his liability. In an important Iowa case23 Rothrock, J., said that the carrier's "duties must vary according to the nature of the consignment. In the cited cases24 the property was such that it could be removed from the cars and placed in an ordinary depot warehouse. But in the case at bar the grain was in bulk. It was not expected by the parties that it would be removed from the car by the railroad company and carried into its warehouse. It was its duty to place it in such a position on its track that it could be safely, and with a reasonable degree of convenience, unloaded by the plaintiff; and it was the right of the plaintiff to refuse to unload the car until it was so placed; and so long as the defendant, in obedience to its obligation as a common carrier, was required to move the car upon the track, its liability as such common carrier did not cease." And so in Pindell v. St. Louis & H. R. Co.,25 it was held that if the railroad company notifies the consignee of the arrival of a carload of wheat, and places it in a safe place awaiting his action, it is not liable, in the absence of negligence, for the subsequent destruction of the wheat by fire. Other cases than those already cited holding that a railroad company becomes a warehouseman, as matter of law, when the duty of transportation is over and it has assumed the position of warehouseman as a matter of fact, will be found in the note below.26 California. The Massachusetts rule was adopted in this state by the case of Jackson ▼. Sacramento Valley R. Co.,27 but subsequently the rule was changed by legislative enactment providing that "if, for any rea. son, a carrier does not deliver freight to the consignee or his agent personally, he must give notice to the consignee of its arrival, and keep the same in safety, upon his responsibility as a warehouseman, until the consignee has had a reasonable time to remove it." And the sentiment of the courts of that state is in harmony with the change; for, in Wilson v. Cal. Cent. R. Co.,28 Van Clief, J., said: "The rule requiring railroad companies to give notice to consignees of the arrival of their goods, so far as practicable, in order to reduce the liability of the carrier to that of a warehouseman, irrespective of statutory enactment, seems to be founded upon the better reason, and supported by the weight of authority in the states and in England." Georgia.-In Rome R. Co. v. Sullivan, 29 one of the judges made some observations seeming to indicate the necessity of notice, but such remarks were obiter dicta, the question of notice not being involved. In a late case 30 it was held that notice is unnecessary if the goods arrive in the usual time, the carrier being relieved of his carrier's liability in such a case by depositing the goods in a 26 Rice v. Hart, 118 Mass. 201, 19] Am. Rep. 433; Blaisdell v. Com. R. R. Co., 145 Mass. 132; Neal v. safe place ready for delivery on demand."1 But if the freight does not arrive within the accustomed time, notice must be given and a reasonable time allowed for removal. The decision of this case was effected by a provision of the Code.2 Tennessee. In this state, by an act of 1870, the carrier was required to give notice of the arrival of goods at their destination, but this has been construed not to extend the carrier's liability. Tennessee, though it has been said in some places to be among those states which follow the New Hampshire rule, has uniformly and firmly adhered to the Massachusetts doctrine. 2. The New Hampshire Rule.-The leading case on this line of authority is Moses v. Boston & M. R. Co.,34 where the Massachusetts doctrine, while acknowledged to be of a practical character, is said to sacrifice the approved principles of the common law to considerations of convenience and expediency. McClellan, J., in Columbus & W. R. Co. v. Ludden,35 in an able opinion, declared the position of these courts to be "that the liability of a common carrier by rail as an insurer of the consignment continues throughout the transit and until the goods have been unloaded from the cars and deposited in the depot or warehouse of the carrier, or otherwise made ready for delivery, and a reasonable time thereafter has elapsed to afford the consignee an opportunity to come and take them away, and that only after the lapse of a reasonable time, beginning when the transit is complete and the shipment is ready for delivery, will the liability, in the absence of special stipulation of the carrier, as such be converted into the less rigid and exacting liability of a warehouseman for reward." "The rule adopted in Massachusett," said Seymour, J., in Graves v. Hartford & N. Y. S. B. Co.,36 "puts an end to the carrier's responsibility as such, just where that responsibility is of the highest value to the shipper. Between the deposit of the goods on the platform and their delivery to the consignee, they are exposed to theft, depredation and injury by strangers and by the carrier's employees. In making delivery, care is needed to avoid mistakes and attention required to see if the good are uninjured. During the whole process of delivery, until fully completed, the goods should remain in the care of the carrier upon the full responsibility pertaining to him as such." "If the consignee is present upon the arrival of the goods, he must take them without unreasonable delay. If he is not present, but lives at or in the immediate vicinity of the place of delivery, the carrier must notify him of the arrival of the goods, and then he has a reasonable time to take and remove them. If he is absent, unknown, or cannot be found, then the carrier can place the goods in its freight house, and after keeping them a reasonable time, if the consignee does not call for them, its liability as a common carrier ceases.' 9937 A When the question was first presented to the Supreme Court of Michigan, the court was equally divided and no decision was reached. This case, however, is important for a valuable opinion of Justice Cooley, in which that eminent jurist discussed the question on its merits and reviewed the authorities.38 This opinion evidently bore fruit, for very soon after, in the case of Buckley v. Gt. West. R. Co., this court declared its adhesion to the New Hampshire view.39 good statement of the considerations that have induced the adoption of this rule is to be found in the opinion of Peters, J., in Mobile & G. R. Co. v. Prewitt. 40 Speaking of a consignment of goods in care of the railway company, he said it could not be considered that such a bailment was without hire, though no storage charges had beeen demanded. "The accommodation itself is one that has a strong tendency to bring business to the Thus the company is company. paid for the use of its depots by the increase of its business." Other cases supporting these propositions are to be found in the note.41 What is a reasonable time for re * moval of the goods within the meaning of this rule must always be a question to be determined in view of the facts of the case; and, the facts not being in dispute, this question is for the decision of the court. 42 It is such time as will enable one living in the vicinity of the place of delivery to inspect and remove the goods in the ordinary course of business, and in the usual business hours.43 In one case where three days had passed after notification to the consignee and request to remove the goods, this was held sufficient time to relieve the carrier of his extraordinary liability." In another case the consignee was notified on a Saturday of the arrival of cotton at the carrier's dock, but left part of it there till the following Wednesday, when it was burned. The carrier was liable only in case negligence on his part was shown.40 Modification by Usage or Contract.-In any case, however, the whole question of liability may be governed by customary usage or special contract.46 For example, goods were consigned to the shipper's order, with a direction that a third person should be notified of their arrival at place of destination. It was held that such notice relieved the company of liability as carrier. In a recent Georgia case,48 it was held that in order V. Arthur v. St. P. & D. R. Co., 38 Minn. 965; Burling. ton & M. R. Co. v. Arms, 15 Neb. 69; L. L. & G. R. Co. v. Norris, 16 Kan. 333; Maigvan v. New Orleans, J. & G. N. R Co., 24 La. Ann. 333; Wood v. Crocker, 18 Wis. 345, 86 Am. Dec. 773; Winslow v. Vermont R. Co., 42 Vt. 700, 1 Am. Rep. 365; Blumenthal Brainard, 38 Vt. 402, 91 Am. Dec. 350; Berry v. W. Va. & R. R. Co. (W. Va.), 30 S. E. Rep. 143; Back baus v. C. & N. W. R. Co. (Wis.), 66 N. W. Rep. 400; Mo. Pac. R. Co. v. Wichita, etc. Grove Co. (Kan.), 40 Pac. Rep. 899; Mo. Pac. R. Co. v. Nevill, 60 Ark. 375; Kirk v. C., M. & St. P. R. Co. (Minn.), 60 N. W. Rep. 1084. In the last case the goods were left in the car for 48 hours after they had reached their destination. In the absence of proof of any custom to deliver such goods from the car, the company was held liable as carrier for their destruction. 42 Laporte v. Wells, Fargo & Co.'s Exp. Co., 48 N. Y. St. 292. L. L. & G. R. Co. v. Norris, 16 Kan. 333; Kinney v. St. Paul & P. R. Co., 19 Minn. 251; Wood v. Crocker, 18 Wis. 345, 86 Am. Dec. 773. 44 Anniston & A. R. Co. v. Ledbetter (Ala ) 45 Wymanskill Knitting Co. v. Murray, 90 Hun, 554.* |