Lloyd v. Haugh , 223 Pa. 148 ( 1909 )

Opinion by

Mr. Justice Stewart,

We shall not attempt to discuss separately each of the twenty-one assignments of error in these appeals. The learned counsel agree that together they raise but five questions; these we shall consider in the order they have been presented.

1. Was the defendant a common carrier? The learned trial judge held as matter of law that it was. Briefly these were the facts, undisputed. The defendant, an incorporated company, though chartered to do a general warehouse and storage business, does not confine itself strictly to the particular business for which it was chartered, but engages as well in the business of moving household goods in the city of Pitts-burg and vicinity. The president of the company, speaking to this point, says in his testimony that general hauling of household goods is one of the particular lines of business in which the company engages, and that it solicits business of this kind by public advertisements in various ways, by signs upon its wagons, upon fences, when that is allowed, by cards intended for general distribution, and by the bills and tags used in the course of business. These advertisements speak for themselves, and unquestionably establish the fact, independent of everything else in the case, that the defendant does hold itself out to the public as engaged in the moving of household goods, thereby inviting employment along this line. None of these advertisements contain a suggestion of limited liability, or that the company will render such service only as it may select its patrons. Notwithstanding this public committal of the company to a general and undiscriminating service, it is argued that inasmuch as the company claims the right to select those whom it will serve, and because its custom has been and is to discriminate, accepting some and rejecting others, as it may choose, this circumstance makes it a private as distinguished from a common carrier, and exempts it from the obligations and liability which the law imposes on the latter relation. The argument assumes that no legal duty rests upon the defendant to treat alike all applying for its services, and avoid discrimination except upon justifying circumstances. Whether such a duty attaches as a necessary incident to the relation of common carrier, under any and all circumstances, need not be discussed. In Steinman v. Wilkins, 7 W. & S. 466, in speaking of the duty resting on a common carrier, Chief Justice Gibson uses this language : “ He is bound in England by the custom of the realm to carry for all employers at established prices; but it is by no means certain that our ancestors brought the principle with them from the parent country.” Conceding, however, that such a duty rests upon a common carrier, to claim that one is not a common carrier because he has persistently disregarded this duty and has arbitrarily chosen whom he would serve, notwithstanding he has invited the public generally to apply, is to make a public duty determinable by the pleasure of the individual and not by principle or law. We express a doctrine universally sanctioned when we say, that anyone who holds himself out to the public as ready to undertake for hire or- reward the transportation of goods from place to place, and so invites custom of the public, is in the estimation of the law a common carrier: Beckman et al. v. Shouse et al., 5 Rawle, 179; Verner v. Sweitzer, 32 Pa. 208. There is contrariety of view as to whether a single or occasional engagement to transport for hire, will bring one within the class of common carrier; but that question is not here raised. We are dealing with a case where the carrier made the transportation of household goods part of its regular business, advertised that business in a way to solicit custom from the general public. An unavoidable implication arises that it holds itself in readiness to engage with anyone who might apply. What duty we attach to the relation of common carrier is a matter aside from present inquiry ; the question here is not one of duty but of liability. Whatever the duties may be, they do not establish or determine the relation, but result from the relation. If a carrier is sued for breach of legal duty, the first thing to be determined is whether he is a common carrier or a private carrier, for the status must first be determined before the duty can be known to exist. The learned judge correctly held that the defendant here was a common carrier. It follows that the burden was on the defendant, in seeking to escape liability for the goods destroyed, to show that the loss was to be referred to some one of the exceptions to the common-law rule.

2. We are disposing of appeals in two cases. In the one, the plaintiff is William F. Lloyd, and in the other Maud P. Lloyd, his wife. The contract for transportation was made with the husband who applied to the defendant company to transport his household effects, no mention being made of the wife’s goods. The wife was allowed to recover in a separate action for her own loss. In loading and packing, the goods of the wife were not distinguished from those of the husband; both alike were received by the defendant company at the hands of the husband. Appellant insists that inasmuch as the contract was with the husband alone, it covered only his goods, and did not extend to the wife’s. No question was made as to the wife’s ownership; the goods she is here claiming for were admittedly her own. The right of action in all such cases follow's ownership of the goods, and anyone having a beneficial interest in them may maintain the action. If the action against the company is in tort, it should be brought by the owner of the goods, whether he be consignor, consignee or a third person. Anyone having a beneficial interest in the goods may maintain an action for damages thereto: 6 Cyc. L. & P., p. 510, and the authorities there cited. It is a matter of no consequence at whose hands the carrier may have received the goods ; and it does not concern him to know who is the real owner of goods committed to him for transportation. Indeed, under ordinary circumstances, he has no right to inquire, since the law protects him against the real owner if the goods are delivered in pursuance of his employment without notice of his claim : Addison on Torts, sec. 701. The circumstance of ownership can neither add to nor detract from the service that the company engages to render, nor can it make any difference in the consideration, he is to receive. It would be intolerable if everyone delivering goods to an express company, for instance, could be required to first establish his ownership before transportation could be secured. The defendant company makes no pretense that the carrying of the wife’s goods in addition to thbse of the husband, imposed upon it any larger or heavier service than was contracted for, or that it was deceived in any way, or that it would have done less than it did had the ownership of the wife been disclosed.

3. It appearing that the defendant was a common carrier and the loss of the goods having been shown, its liability for the goods became fixed, except as it could bring the loss within one of the common-law exceptions. In the effort to do this it utterly failed. The theory defendant advanced was that the goods were consumed by the fire originating in spontaneous combustion. We by no means concede that this would’ be such a vis major as would relieve from liability. Spontaneous combustion, where loss of goods results, would seem to imply negligence in greater or less degree. But however this may be, spontaneous combustion was merely shown to be a possible cause ; and the expert who testified to this was careful to say, that the evidence in the case did not indicate any particular cause of the fire, and that no substance had been mentioned which would refer it to spontaneous combustion. The court very properly held that the evidence was not sufficient to justify a finding in accordance with the theory advanced.

4. The true measure of damages in cases of this character is compensation. “ The market price of an article is only a means of arriving at compensation ; it is not in itself the value of the article, but is evidence of value. The law adopts it as a natural inference of fact, but not as a conclusive legal presumption. It stands as a criterion of value because it is a common test of the ability to purchase the thing: ” Kountz v. Kirkpatrick, 72 Pa. 376. “ What a thing will bring in the market at a given time is ( perhaps the measure of its value then; but it is not the only one Trout v. Kennedy, 47 Pa. 387. Many of the goods for which compensation is here asked, were of such a character that their market value could not compensate for their loss, as, for instance, clothing and other personal belongings. It cannot be said that they had no value in the open market, since at public auction they would most likely have brought something, but manifestly the price they would have there commanded would not represent their value to the owner. Therefore, it is that other considerations than market value govern, with respect to those things which have peculiar value to the owner and little or none in a general market. Where this is the case the just rule of damages 'As the actual value of the thing destroyed to him who owns it, taking into'account its cost, the practicability and expense of replacing it, and such other considerations as in the particular case affect its value to the owner : Sedgwick on Damages, sec. 251. And this was the measure that the jury in this case was instructed to observe. It is true that with respect to many of the goods, including many of the kind of which we have here been speaking, the plaintiffs gave nothing beyond a description of the articles and their cost; but the defendant could and did on cross-examination inquire into the length of time they had been in use and other matters affecting their value to the owners. From such data as they had before them it was for the jury to determine the compensation by the standard we have indicated. - The instruction of the court on this point was as follows : “ The value of these goods that were lost in the custody of the defendant, is what is called the market value; that is, as to a great portion of the goods, As for the goods of a personal nature, such as wearing apparel, and other goods and effects of a personal nature, and which have no market value — and there seems to have been a great many of that kind here — as to those that have no market value, the rule which you will follow is their value to the plaintiffs, not any fanciful or imaginary value they may have put on the articles as may be worth to them only, but what is the value of these articles in money to them — not any valuation outside of their money value.” This is a clear, concise and correct statement of the true rule. The assignments of error are overruled.

The judgment is affirmed.