entitled to is determined by the weight of the weigh-master upon weighing the grain into the elevator. This has been so ever since the establishment of public warehouses under the act referred to. Upon the weight being reported to the elevator company by the weigh-master, the elevator company gives notice of the weight to the railroad company, and also to the consignee, and thereupon the railroad company makes out its freight bill, which is presented to the consignee, and, upon its payment, the railroad gives him a receipt, and also gives the elevator company a statement that the freight-bill has been paid, whereupon, and not before, the elevator company issues a warehouse receipt to the consignee. In this case the railroad company presented the freight-bill to the plaintiffs on November 29th (the 28th was Sunday), and plaintiffs refused to pay it. Neither the plaintiffs nor defendant had any warehouse in Duluth for the storage of grain, all the elevators there being public warehouses under the act of 1885. Neither had defendant any specific instructions from plaintiffs at what warehouse or elevator to deliver grain consigned to them, but the invariable custom had been, in the absence of the particular instructions as to any particular consignment of grain, for the railroad companies to deliver grain to any one of the elevators that was most convenient to them, immediately upon the inspection of the State inspector. It is further agreed" that all the acts of all parties with reference to the wheat in question were in all respects in accordance with the uniform custom or usage in Duluth ever since the establishment of the public-warehouse system by said act of 1885, and that said custom was well known to and acquiesced in by both parties hereto." The sole question presented is whether, upon this state of facts, defendant's liability as common carrier had terminated before the loss of the grain on the night of November 27th. In order to intelligently and correctly determine this question, it is important to consider-First, the grounds upon which this stringent liability is made to rest, and then, second, whether these had, under the facts of this case, ceased to exist, so that there was no longer any just occasion, within the reason of the rule, for holding the defendant to that liability. The reason of the rule, in the language of Best, C. J., in Riley v. Horne, 5 Bing. 217, is that, "when goods are de livered to a carrier, they are usually no longer under of the owner. He seldom follows or sends any servant with them to their destination. If they should be lost or injured by the grossest negligence of the carrier or his servants, or stolen by them or by thieves in collusion with them, the owner would be unable to prove either of these causes of loss; his witnesses must be the carrier's servants, and they, knowing that they could not be contradicted, would excuse their masters and themselves." Chancellor Kent, expressing the GROUNDS ON the eye CAR WHICH same idea more tersely, says the rule is founded on broad principles of public policy and convenience, and was introduced to prevent the necessity of going into circumstances impossible to be unraveled. WHEN TERMINATES. CAR A general answer to the question, When does this liability terminate? is obvious, viz.: Whenever the care and custody of the property has passed from the carrier to the owner, or some bailee of his own choosing, or whenever the RIER'S LIABILITY owner has, after its arrival at its destination, had a reasonable opportunity of taking the property into his own charge. The crucial test is whether, having proper regard to the principles upon which the carrier's liability rests, the property has so far passed out of the care and custody of the carrier or his servants, into that of the owner, that there is no longer any occasion, within the reason of the rule, for further holding the carrier to this strict liability. So long as the reasons continue the liability should also continue; when they cease it should cease. DESTINATION. AT In It is upon precisely this principle that this court, in common with the majority of the courts of the country, has held that, where goods, as usually handled after their arrival at their destination, are placed in the depot or warehouse of the carrier in SAME GOODS the custody of its servants, the liability of the carrier, ARRIVING as such, continues until the consignee has had a reasonable time within which to take them away. The reason is manifest. In such case the owner has not yet got sight of them, or had any opportunity to examine them, in order to ascertain in what condition they arrived, nor to take them into his own custody. case of loss or injury, he would still be at the mercy of the statements of the carrier's servants as to where and how it occurred. He might not desire to leave his property in the hands of the carrier under the more limited liability of warehousemen, but might wish to take it into his own charge or place in that of a custodian of his own choosing. But as he could not know when the goods would arrive, and hence could not be expected to be on hand the exact moment of their arrival, he could not do this until he had a reasonable opportunity to come and examine them, and take them away. If, after such opportunity, he still left them with the carrier, he would be deemed to have assented that it might hold them under the more limited liability of warehousemen. Under the state of facts referred to, the same reasons of public policy upon which the carrier's liability rests during actual transportation are equally applicable, and hence the liability continues. And it is upon these grounds that what is called the "New Hampshire Rule" rests, which is invoked with so much confidence in this case by the plaintiffs. Moses v. Railroad Co., 32 N. H. 523. But the facts are not all analogous to the case supposed. A new method of doing business in the matter of handling bulk grain has arisen under this public-warehouse system and the business usages of Duluth. It is one of the great excellences of the common law that it does not consist of inflexible statutory rules adapted to particular circumstances, which might become obsolete, but of certain comprehensive principles, founded on reason and natural justice, and adapted to the circumstances of all cases which fall within them. When new modes of doing business and new combinations of facts arise, these same principles will apply; but they must be adapted to the new situation by considerations of fitness and reason which grow out of these circumstances. ABILITY AS CAR MINATED. The consideration of the facts of this case, in the light of what has been said, logically and necessarily leads, as we think, to the conclusion that defendant's liability as carrier had terDEFENDANT'S LI- minated before this grain was destroyed. The conRIER HAD TER- dition of the property upon its arrival had been conclusively determined by the inspection and weight of the officers of the State, whose decisions were final as to both parties, and the correctness of which, as to grade at least, plaintiffs had assented. The grain had gone out of the custody of the carrier's servants into that of a public warehouseman, to whom plaintiffs had authorized defendant to deliver it; for, under the custom of doing business, the case stands precisely as if they had expressly designated this particular elevator. The delivery of the grain, as a physical act, was completed. The carrier had done the last act with reference to the property itself which his duty required. It had been stored in the elevator "for and in behalf of the plaintiffs," and they had been notified by the warehouseman that he had placed it to their credit. STRUCTION NOT UNTIL TO ISSUE RE- It is true that it had been delivered to the warehouseman for the plaintiffs, subject to the instruction that a warehouse receipt should not be issued to them until evidence was presented EFFECT OF IN that the transportation charges had been paid, and that, by reason of the freight-bills not having been yet preWERE sented to them, they had not had an opportunity to obtain this written evidence of their title. But it does not seem to us that this fact at all affects or bears upon anything connected with the situation or custody of the property which goes to the considerations of public policy upon which the strict liability of the carrier rests. The custody of the property had completely passed from the carrier into that of the public warehouseman. All control over or right to it on part of defendant had ceased, except the right to resort to it to enforce collection of its freight charges, in case plaintiffs, after demand, should refuse to pay them. Defendant's instructions to the warehouseman, that no warehouse receipts should be issued until the paid freight-bills were presented, imposed no condition upon their issue which is not imposed by clear implication by the statute itself, which pro vides for the issue of such receipts only upon application of the consignee, accompanied by proof that all transportation or other charges, which may be a lien upon the grain, including charges for inspection and weighing, have been paid. This clearly contemplates that the carrier may make delivery of grain for the consignee with the freight charges following it as a lien, which must be paid before a warehouse receipt shall be issued. In fact, business could not be well done in any other way, unless the carrier is to surrender all lien for his freight, because the amount of these transportation charges can only be determined after the grain is weighed into the elevator. The policy of the law is that all legitimate charges connected with the transportation and handling of the property should follow it into the public warehouse, and be paid before a warehouse receipt, transferrable in the market, shall be issued. The inspector's and weigh-master's fees thus follow the property, and why not the carrier's? It is true, the statute provides that the inspector's fees shall be paid by the warehouseman, and added to his charges for storage; but, so far as the weigh-master's fees are concerned, we do not see why they do not stand on the same footing as charges for transportation. Subject to this claim for freight, this property had passed from the custody of the carrier into that of the warehousenian, as bailee of the plaintiffs. Every conceivable consideration of public policy upon which a carrier's liability is founded had ceased, and hence, upon every principle of reason and justice, the liability itself must be held to have also ceased. Judgment reversed, and cause remanded, with directions to the court below, upon the agreed facts, to render judgment for de fendant. When Liability as to Carrier Ceases and Liability as Warehouseman Begins. See Illinois Cent. R. Co. v. Troustine, and note, 31 Am. & Eng. R. R. Cas. 99-101; Gashweiler v. Wabash, etc., R. Co., and note, 25 Ib. 403. INDEPENDENCE MILLS Co. v. BURLINGTON, CEDAR RAPIDS AND NORTHERN R. Co. et al. (Advance Case, Iowa. October 11, 1887.) Where grain carried by a railroad company is most commonly and conveniently removed directly from the car instead of through a warehouse, the liability of the company as a carrier does not cease, and its liability as a warehouseman begin, until the cars are placed in a safe and convenient location for unloading; and the finding of a jury that a car was so placed that it could, but with difficulty, be unloaded, justifies a verdict holding the company liable as a common carrier. In such a case it is not error for the court in its instructions to eliminate every question except that as to defendant's liability as a carrier; if the court also charges that if the car was put in a proper place for unloading; defendant was not liable on any ground. A car-load of wheat was shipped by contract with one of the defendants, to be transferred to a given point in care of another railroad company, but, in violation of that contract, was transferred to the B., C. R. & N. R. Co., the other defendant in this action. The complaint showed these facts, and also showed that the wheat was destroyed while in possession of the latter defendant. Held, that the averments were sufficient to sustain the action, and, as the evidence showed that defendants had a joint interest in the contract of transportation, a verdict against them should be sustained. When no motion is made for a more specific statement, a complaint averring plaintiff's ownership of certain wheat destroyed, the number of bushels, a demand for the same or payment of its value, and demanding damages in the sum of $600, interest, and costs, is sufficient to entitle plaintiff to judg ment, although no value of the wheat, nor the fact that plaintiff was damaged by its loss, is specifically alleged. APPEAL from district court, Buchanan county. Action at law to recover the value of a car-load of wheat which was destroyed by fire on one of the tracks of the Burlington, Cedar Rapids & Northern R. Co. at the city of Independence, in this State. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendants appeal. S. K. Tracy for Burlington, C. R. & N. R. Co., appellant. ROTHROCK, J.-1. On the twenty-ninth day of August, 1885, Peavy & Co., of Minneapolis, Minnesota, shipped from that place to plaintiff, at Independence, Iowa, a car-load of wheat in bulk. The wheat was ordered by the plaintiff to be shipped by way of the Minnesota & Northwestern R., in care of the FACTS. |