American Express Co. v. Second National Bank. employer knew it, or is presumed to know it, by reason of its generality in the neighborhood where it is claimed to exist. The case below was well ruled. Both points, the delivery of the sugar and the custom, were found, on proper instructions, in favor of the defendant. There being no error in the record, the judgment is Affirmed. AMERICAN EXPRESS Co., plaintiff in error, v. SECOND NATIONAL BANK. (69 Penn. St. 394.) Express company - liability beyond route-effect of restrictions. * * An express company received a package of money from a bank at T., to be transmitted to L., and in their receipt they undertook to "forward to the nearest place of destination reached by this company." By the conditions in the receipt, the company were not to be liable "except as forwarders only, * or for any default or negligence of any person or corpora. tion to whom" the package should be delivered, "at any place of the estab lished route run by this company," and such person or corporation was to be taken to be the agent of the consignor. To reach L., the package was carried by three other express companies, but the consignee at L. refused to receive it, and directed it to be returned to T., to which place it was carried by the same routes. On its arrival there, and return to the bank, it was found that part of the money had been abstracted. In an action by the bank against the express company at L., the judge charged that the company were bound by the contract to carry the package safely to L., and that the burden of proof was on the company to show how the loss occurred. Held error, and that at most the defendant company were liable as carriers only to the end of their route, and beyond that only as forwarders; also, that the jury should have been instructed that, if the evidence satisfied them that the loss had not occurred on defendant company's route, either in going or returning, but on some other part of the route, and that, in the perform. ance of their duties as forwarders, they had used reasonable diligence in the selection of proper carriers, defendant company were not liable. ACTION by The Second National Bank of Titusville against The American Express Company, to recover for the loss of part of a package of money, delivered to defendants to be carried to Lancaster, Peun. The package contained $1,900 when delivered to American Express Co. v. Second National Bank. defendants, and was addressed to Amos Funk, Lancaster, Penn. The route of defendants extended only to Corry; from Corry to Lancaster, three other express companies successively had the route. The receipt given to plaintiff was as follows: "AMERICAN EXPRESS COMPANY, "TITUSVILLE, Penn., May 25th, 1866.) "The American Express Company do a general express business between all the principal cities and towns of the States of New York, Kentucky, Wisconsin, Western Pennsylvania, Michigan, Missouri, Ohio, Illinois, Minnesota, Indiana, Iowa, Canada. and connecting with other responsible expresses to all parts of the world. "LIVINGSTON, FARGO & Co., Buffalo. "WELLS, BUTTERFIELD & Co., New York." "Received of Second National Bank, Titusville, Penn., one package, said to contain bank notes valued at nineteen hundred dollars, marked Amos Funk, Esq., Lancaster City, Pennsylvania, which we undertake to forward to the nearest point of destination reached by this company, subject expressly to the following conditions, viz.: This company is not to be held liable for any loss or damage except as forwarders only, nor for any loss or damage by fire, by the dangers of navigation, by the act of God, or of the enemies of the government, the restraints of government, mobs, riots, insurrections, pirates, or from or by reason of any of the hazards or dangers incident to a state of war. Nor shall this company be liable for any default or negligence of any person, corporation or association, to whom the above described property shall or may be delivered by this company, for the performance of any act or duty in respect thereto, at any place or point off the established routes or lines run by this company, and any such person, corporation or association is not to be regarded, deemed or taken to be the agent of this company for any such purpose, but, on the contrary, such person, corporation or association shall be deemed and taken to be the agent of the person, corporation or association from whom this company received the property above described. * *The party accepting this receipt hereby agrees * to the conditions herein contained. "For the proprietors. "O. J. BENHAM, Agent." The package reached Lancaster, and Funk, on being notified of its arrival, called at the express office, declined to receive it and American Express Co. v. Second National Bank. directed it to be returned to Titusville. On its arrival at Titusville it was re-delivered to the bank, when it was found to have been opened and $1,300 abstracted therefrom. At the trial the judge charged as follows: "The conclusion of the whole matter is this: The defendants being common carriers, received this package of money consigned to Lancaster, under an implied contract to take or send it by careful and responsible hands to its destination. They declare, on the bill of lading or receipt, that they are doing business with such companies to all parts of the world. Not having delivered it to the consignee, they return it to the owner as sound, demand and receive pay for its safe transmission both ways as sound, and it proves to have been damaged while out of the possession of the plaintiffs $1,300 worth. "The law attaches negligence to the party thus receiving and returning the goods or package. To absolve themselves from liability for this negligence, the burden of proof is on the defendants to show how the loss occurred, so that the jury may judge whether it was altogether without any fault of theirs. You must judge from all the evidence whether the defendants have been guilty of negligence, or are exonerated from liability. "If, then, you believe, from the evidence, that plaintiffs did inclose $1,900 in the envelope, sealed up and gave it to the defendants in that condition, and that there was but $600 in the envelope when it was returned to the plaintiffs, and that the defendants have not accounted for the loss in a manner satisfactory or consistent with their freedom from blame, then the law presumes the loss to have occurred through their negligence and they are liable." The verdict was for plaintiff. error. P. Church, for plaintiffs in error. Defendants took out a writ of W. S. Morris (with whom was Douglass & McCoy), for defendant in error. SHARSWOOD, J. A fundamental error runs through and infects the whole charge and the answers of the learned judge below to the points presented, which renders it unnecessary to discuss the assignments in detail. He instructed the jury more than once that the American Express Co. v. Second National Bank. express company had agreed to carry or send the package in question safely to Lancaster and deliver it to Mr. Funk, to whom it was directed. He entirely put aside, as of no validity, the special contract contained in the receipt, actually filled up by the bank, and accepted by them, undoubtedly with full knowledge of its stipulations. He put this, it would seem, on two grounds, both of which are unquestionably true, but have no application to the case, viz.: First. That common carriers cannot so limit their liability, by special notice or contract as to exempt themselves from the consequences of their own or their servants' negligence; and Second. That if property is received by a common carrier, and he fails to deliver it safely at its place of destination, the burden is on him to prove that it was not lost or injured while in his custody; and in general, the only way in which he can do this satisfactorily is by proving when, where, and how the loss did actually occur. There was, however, in this case, no attempt to relieve the common carrier from the necessity of proving to the satisfaction of the jury that the package, after its delivery to the express company, was not broken open and rifled of part of its contents while in the possession and custody c any of their officers or agents. The learned judge thougnt, and 30 charged, that it was incumbent on them to prove affirmatively where, when and by whose negligence, or otherwise, the loss had actually happened. We think, however, that this rule is not appli cable to the case. By the express terms of the contract contained in the receipt, the express company undertook only to forward to the nearest point of destination reached by them, and upon this, among other conditions, that they were not to be liable for any default or negligence of any person or corporation to whom they might deliver it at any point off their own established route or line. If they were carriers at all, it was only to the nearest point of destination; beyond that they were forwarders only. There was nothing unreasonable, unusual or unlawful in such a contract. It is very well settled that forwarders are not insurers as common carriers. They are liable only as ordinary bailees to carry for hire. "A person," says Mr. Justice STORY, "who receives and forwards goods, taking upon himself the expenses of transportation, for which he receives a compensation from the owners, but who has no concern in the vessels or wagons by which they are transported, and no interest in the freight, is not to be deemed a common carrier, but a mere warehouseman or agent." Story on Bailees, § 502; Chitty on Grant v. City of Erie. Carriers, 18; Hooper v. Wells, 5 Am. Law Reg. N. S. 16; Jenneson v. The Camden and Amboy Railroad Co., 4 Am. Law Reg. 234; Camden and Amboy Railroad Co. v. Forsyth, 61 Penn. St. 81. To hold that a forwarder merely is bound not merely to clear his own skirts of negligence, but to prove when, where and how, the loss occurred, would be to impose upon him an obligation which attaches only to a carrier, and not to an ordinary bailee for hire. A carrier who is bound, at all events, to deliver safely, must bring himself, by positive evidence, within the exceptions, the act of God, or public enemies. Not so an ordinary bailee. It is enough for him to satisfy a jury, by the best evidence in his power, that he has performed his duty with care and fidelity, and that the loss has not arisen from any default of himself or his servants. The jury then should have been instructed that if the evidence satisfied them that the loss had not occurred between Titusville and Corry, either in going or returning, but on some other part of the route, and that, in the performance of their duties as forwarders, they had used all usual and reasonable care and diligence in the selection of proper carriers, their verdict should be for the defendants. Judgment reversed, and venire facias de novo awarded. GRANT, plaintiff in error, v. CITY OF ERIE. (69 Penn. St. 420.) Municipal corporation — damage resulting from neglect to maintain reservoir. make a sufficient num. Under this act a reser By an act of the legislature, a city was empowered to ber of reservoirs "to supply water in case of fire." voir was constructed, but was afterward partially destroyed by the city, so that when a fire occurred on plaintiff's premises, near by, there was no water in the reservoir to extinguish it. In an action against the city for damages, held, that plaintiff could not recover, on the ground that it was dis cretionary with the city to construct or maintain the reservoir. (See note p. 275.) ACTION by Benjamin Grant against the City of Erie. Plaintiff alleged that he was the owner of buildings in Erie, which were destroyed by fire February 1, 1868; that, by an act of the assembly |