Erie Company v. Shuart/Dissent Hessin Clarke
Mr. Justice CLARKE dissenting.

I greatly regret that I cannot concur in the opinion and judgment of the court in this case, but I cannot consent to share in what seems to me a very strained construction of a definition in the Hepburn Act (34 Stat. 584, c. 3591, § 1 [Comp. St. § 8563]) which will result in keeping alive a bill of lading, with the effect of excusing the carrier from liability for negligently damaging the live stock of a consignee, after it had been delivered, on the ground that a claim in writing for the damage, duly verified, had not been presented within five days.

My reasons for dissenting, stated as briefly as may be, are as follows:

It is shown by the opinion of the court that the consignee, a partnership of three members, was bound by the bill of lading to unload the horses at destination.

The consignee, being notified by the carrier as to the probable time of the arrival of the car, on the day before it arrived, paid what was supposed to be the full amount of the freight charges, and two members of the partnership were at the station at 3 o'clock in the morning to receive and unload it.

When the train came, the senior member of the consignee stood in the cattle chute with the conductor, while the latter was placing the car for unloading and approved as satisfactory the position in which it was placed. Thereupon a brakeman set the brake, the engine was cut off and the conductor went away and left the car in the sole custody of the consignee, after saying to its representative, 'You had better get them out as soon as you can as they have been on the road a good while and are tired and hungry.' Two members of the partnership, consignee, went to work at once to unload the horses, but it was necessary to get some boards to make the bridge from the car to the chute safe, and in about half an hour, when the two were in the act of leading two horses from the car, other cars were negligently thrown against it and caused the damage sued for.

I dissent from the opinion of the court because I agree with the three New York courts that the undisputed facts thus stated show that the transportation was ended and the delivery of the stock was so completely made as to end all liability of the carrier under the bill of lading, before the negligence of the company occurred which caused the damage complained of.

What constitutes delivery of goods or of live stock by a carrier is usually a mixed question of law and fact, but where, as here, the facts are not disputed, it is a question of law.

What more was there for the carrier to do,-what more could it have done-to make more complete the delivery necessary to fulfill its obligation as a carrier? The journey was ended, the freight charges were paid, and the car was placed on a side track in an appropriate place and position for unloading, which was approved by the consignee. It had been accepted by two members of the partnership, consignee, and had passed into their exclusive custody a full half hour before the accident. No assistance was asked for or needed after the conductor delivered the car and went away and thereafter the carrier owed to the consignee only the duty which it owed to any property lawfully upon or near to its tracks-not to negligently or willfully injure it, and it was for violation of that duty, not for failure to discharge duties imposed by the bill of lading, that this suit was instituted. The case is one of side track delivery, the equivalent of the familiar delivery of a car to an 'industrial track' or 'team unloading track' of a railroad, with possession taken by the consige e before the damage was done.

To the weighty authority of the New York courts which decided in this case that the delivery was complete before the damage was done, may be added, a few from many, the decisions of the Supreme Courts-of Michigan, in a strikingly similar case, but with not so complete a delivery, in Brown v. Pontiac, etc., R. R. Co., 133 Mich. 371, 94 N. W. 1050; of Illinois, in Gratiot Street Warehouse Co. v. St. Louis, etc., R. R. Co., 221 Ill. 418, 77 N. E. 675; of North Carolina, in Reid v. Southern Railway Co., 149 N. C. 423, 63 S. E. 112; of Georgia, in Kenny Co. v. Atlanta, etc., R. R. Co., 122 Ga. 365, 50 S. E. 132; and see Hedges v. Railroad Co., 49 N. Y. 223.

The definition of 'transportation' in the Hepburn Act (34 Stat. 584), relied upon in the court's opinion, seems to me quite irrelevant. That provision was incorporated into the act to prevent unjust discrimination by carriers in terminal delivery charges, as the context and the history of the act abundantly show. It defined 'transportation,' but did not define what should constitute delivery to a consignee; that was left untouched and is governed by the prior decisions of courts and by those which have been developed since.

Equally beside the question involved seems to me the decision in Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Dettlebach, 239 U.S. 588, 593, 594, 36 Sup. Ct. 177, 60 L. Ed. 453, cited in the opinion of the court. The question there under consideration was, whether when goods carried to destination were lost, after they had been held more than a month uncalled for, the liability of the carrier was to be determined by the terms of the bill of lading or by the more limited liability of a warehouseman. Obviously there was no question in the case as to what constituted delivery, for there was no pretense of delivery, actual or constructive, and therefore the decision cannot be of service in determining this case.

The opinion of the court in this case concludes:

'The animals were in the car; no adequate time for unloading      had transpired. The carrier had not fully performed the      service incident to final delivery imposed by law. These      included the furnishing of fair opportunity and proper      facilities for safe unloading, although the shippers had      contracted to do the work of actual removal. See Hutchinson      on Carriers, §§ 711, 714, 715.'

I cannot find justification, in the sections cited, for such a statement of the law as is here made.

Section 711 deals with the obligation to unload carload freight, and, after saying that it is 'the uniform rule and costom in this country' for the consignee to unload, the only other relevant statement of the writer is:

'All, therefore, that can be required of the railroad company, is that it shall place the cars where they can be      safely and conveniently unloaded.'

This the carrier in the case before us had done to the satisfaction and acceptance or the consignee before the accident complained of.

Section 714 deals with the liability of the carrier pending removal (delivery) of the goods, and says:

'During this reasonable time [for delivery] the liability of      the carrier remains unchanged; but so soon as it has elapsed      he no longer stands in the relation of carrier to the goods.      but in that of an ordinary bailee for hire.'

The 'reasonable time' here referred to is palpably that necessary for the carrier to wait before its obligation becomes that of a warehouseman when the consignee does not appear to claim the shipment; it is not applicable to the time for unloading after the property has been accepted by the consignee.

'If the consignee is bound to unload the goods himself from      the car, it is the duty of the carrier to place the car where      it can be unloaded with a reasonable degree of convenience      and to furnish the consignee with safe and proper facilities      for the purpose.'

All of this the carrier in this case did, and the consignee not only approved as satisfactory, safe n d proper, the position in which the car was placed and the facilities furnished for unloading it, but the delivery of the car was accepted and was in the actual possession and custody of the consignee for a very considerable time before the accident complained of happened. It was not in any attempt or effort on the part of the carrier to improve the unloading facilities or to assist the consignee that the damage was done, but it was the result of a tort, pure and simple-of a negligent switching operation, entirely independent of the delivery of the shipment, occurring a half hour after it had been accepted.

The delivery having been completed and accepted by the consignee, the five-day limitation, so unreasonable in itself that it has been prohibited by congressional enactment (Act March 4, 1915, 38 Stat. 1196, c. 176, § 1 [Comp. St. § 8604a]), has, in my judgment, no applicability to this case, and to bottom the conclusion announced upon the definition of 'transportation' in the Hepburn Act is to convert what was intended for the protection of shippers of property in interstate commerce, into an instrument of injury and injustice.

For the reasons thus stated I dissent from the opinion and judgment of the court.

Mr. Justice McKENNA and Mr. Justice BRANDEIS concur in this dissent. Mr. Justice DAY also dissents. 

Notes