Opinion
December, 1905.
Guthrie, Cravath Henderson, for appellant.
Emanuel J. Livingston, for respondent.
The plaint of the plaintiff is that, on August 25, 1904, he delivered a package of men's trousers to the defendant, the United States Express Company, consigned to one George Chylak, Olyphant, Pa.; that the United States Express Company delivered said package for transportation to the defendant, the Adams Express Company; that, thereafter, the latter company, tendering delivery and the consignee refusing to accept, the package was returned to the office of the Adams Express Company; that the defendant failed and neglected to notify the plaintiff, the consignor, of non-acceptance by the consignee; and that, thereafter, he was informed that the package had been stolen or lost, and for that reason could not be returned to him. The action was discontinued as to the United States Express Company, and part of the package of trousers was returned to the plaintiff at the trial. When the carrier transported and tendered delivery to the consignee and the consignee refused to accept, it performed its duty as carrier, and thereafter assumed another relation. While it has not been flatly determined in this State that notice under any and all circumstances to the consignor by the carrier is not required, the cases cited, containing expressions looking that way, seem to be cases where the consignor had been otherwise apprised of the fact, or where there had not been a complete refusal to accept by the consignee. Assuming, but without deciding, that it was the duty of the carrier herein to notify the consignor of the refusal of the consignee to accept, it must be determined that its failure so to do was not proximate to the loss of the goods, and "where the refusal to deliver is explained by the fact appearing that the goods have been lost, either destroyed by fire or stolen by thieves, and the bailee is therefore unable to deliver them, there is no prima facie evidence of his want of care, and the court will not assume, in the absence of proof on the point, that such fire or theft was the result of his negligence." Claflin v. Meyer, 75 N.Y. 260, 262. Loss by theft herein appearing, the plaintiff was not entitled to recover in the absence of proof that the defendant as bailee was negligent.
SCOTT and BISCHOFF, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.