LANCASTER LAW REVIEW. of, the said horses, which are now valued by the plaintiff at $4,029.80, were delivered to the defendant and shipped by it. VOL. XXXII.] FRIDAY, OCT. 15, 1915. [No. 50 It is also claimed that, on the way, the Common Pleas--Law. Detweiler v. Adams Express Company. Express companies — Liability of for damage to property forwarded-Affidavit of defense-Practice. In an action based on the contract, against an express company for loss in value of horses shipped, through injury while in its custody, caused by its negligence, an affidavit of defense is sufficient which denies that the damage alleged, if any, was caused by the defendant or its agents or employees. The liability of an express company is that of a forwarder and not that of a common carrier. Forwarders are not insurers, and in a suit for loss the shipper must prove affirmatively the act of negligence on which he relies. In such case, while recovery might be limited by the amount of the valuation stated in the contract, where the amount claimed is very much less, the fact that the horses brought after delivery a larger sum in the market than such valuation, is not a defense. Rule for judgment for want of a sufficient affidavit of defense. C. P. of Lancaster County, August Term 1915, No. 41. Chas. W. Eaby, for rule. John A. Nauman, contra. said "horses were cut, bruised, maimed, injured and damaged by the carelessness and negligence of the said defendant company," and that, when they arrived at their destination, by reason thereof, they were worth only $3,225.50, and that, by the carelessness and negligence of the defendant in permitting and causing the horses to be injured and damaged while in its care and custody, the plaintiff has suffered damage to the amount of $804.30, with interest. To this claim, the defendant has filed an affidavit of defense. In it, it is first averred that, notwithstanding the Procedure Act of 1887, which directs an affidavit of defense to be filed in actions on contracts, the defendant in this case ought not to be compelled to file an affidavit of defense, because the Act does not include actions ex delicto or of a mixed character of contract and tort, and that the present action is of that character. However, it is further contended that, notwithstanding a presumption of negligence might arise against the defendant for its failure to deliver the horses free from damage as received, the alleged damages, if suffered, were not due to any causes for which it was responsible or over which it had control, and that neither it nor its agents nor employees did or omitted to do anything which injured or damaged the said October 9, 1915. Opinion by LANDIS, horses; and that, if any injury or dam P. J. The plaintiff's action is in assumpsit, and, by his statement, it appears that he was a shipper and dealer in livestock, residing at Pughtown, Chester County, Pennsylvania. The defendant was an incorporated common carrier, engaged in interstate commerce. It is asserted that, on January 5, 1915, the plaintiff entered into a written agreement with the defendant, whereby twenty-eight horses were to be transported from the National Stock Yards, in the State of Illinois, to East Earl, Lancaster County, Pennsylvania, and, in pursuance there age was suffered, it arose from the care- and was $2,800.00; and that the plaintiff is bound by that valuation; that he received from their sale a larger sum, namely, $3.225.50, and that, for this reason, the defendant is not liable to him in any amount. The express company and the plaintiff entered into a written contract, which, in an action of assumpsit, must govern their rights. The company undertook to forward to a point reached by the express company which is the nearest or most convenient to destination, and there deliver to other parties to complete the transportation, the animals mentioned in the contract, to wit: "Twenty-eight horses consigned to W. P. Detweiler, c/o J. D. Bair, East Earl Pennsylvania, Two Hundred Forty-five Dollars and Cents, which charge is fixed by and based upon the value of said animals as declared by the shipper, as hereinafter mentioned." The fifth paragraph of the contract provides: "The shipper, in order to avail himself of said alternative rates and in consideration thereof, being asked by the express company to value said animals, now declares the values hereinafter mentioned to be the true values of said animals so to be shipped as follows, to wit: * * (Number and kind) Twenty-eight Horses, Valued, $100.00 each. *** And it is expressly agreed that in no event shall the express company be liable in excess of the above valuation." The sixth paragraph of the contract reads: "The express company shall not be liable for the conduct or acts of the animals ***. The shipper hereby releases and discharges the express company from all liability for delay, injuries to or loss of said animals from any cause whatever, unless such delay, injury or loss shall be caused by the negligence of the agents or employees of the express company, and in such the express company shall be liable only to the extent of actual damage, which shall in no event exceed the valuation herein declared by the shipper." The ninth paragraph states: "The shipper agrees that the responsibility of the express company shall be that of a forwarder only and not that of a common carrier, and it is understood that it uses and relies wholly upon the facilities of transportation furnished by railroads and other carriers, which facilities it does not control or direct. All the stipulations and conditions in this contract shall inure to the benefit of and extend to each and every carrier, railroad company, express company, forwarder, firm, corporation or person to whom the express company or any connecting carrier may entrust or deliver said animals for transportation, and shall define and limit the responsibility and liability therefor of any such company or person for the acts of their agents or employees." In Century Dictionary, a forwarder is defined to be: "One who forwards or sends forward; specifically, in the United States, one who ships or sends forward goods for others to their destination by the instrumentality of third persons; a forwarding merchant. * * * A carrier who undertakes to transport the goods only part of the way often becomes a forwarder in respect to the duty of delivering them to some proper carrier to complete the transportation." In 13 Amer. & Eng. Encycl. of Law, 1165, it is said: Forwarders are persons or corporations who, for compensation paid or to be paid them by the consignor or by the ultimate consignee, receive and undertake to deliver goods to a carrier to be by him transported to their destination." In the case of Place v. Union Express Company, 2 Hilt. (N. Y.) 19, the Court, in distinguishing a forwarder from a carrier, used the following language: "A forwarder is one who, for a compensation, takes charge of goods intrusted or directed to him and forwards them; that is, puts them on their way to their place of destination by the ordinary and usual means of conveyance, or according to the instruction he receives. Platt v. Hibbard, 7 Cow. (N. Y.) 499; Ackley v. Kellogg, 8 Cow. (N. Y.) 223; Brown v. Denison, 2 Wend. (N. Y.) 593. His compensation is limited to his care and trouble and the charges paid by him, in receiving, keeping and duly forwarding; and when he has placed the goods in the course of transit by the proper conveyance, his duty is at an end. His occupation is further distinguished from By the common law, the carrier is an insurer of the goods intrusted to him, excepting as damaged by the act of God, or a public enemy: Farnham v. Camden & Amboy R. R. Co., 55 Pa., 53; Trace v. Penn'a R. R. Co., 26 Sup., 406. it is well settled that a common carrier may, by special contract, limit its liability for loss of or injury to goods in loss or injury resulting from its own or its servants' negligence. Thus, in Crary v. Lehigh Valley R. R. Co., 203 Pa., 525, Mr. Justice Brown, speaking for the Court, said: "At common law, if property was lost or injured while in the hands of the carrier, the burden of proof was on the carrier to show the existence of such circumstances as were sufficient to excuse him from liability. Such is still the general rule, but when a special contract is entered into between the shipper and the carrier, the contract takes the place of the common-law rule, and fixes the liability of the carrier." Needy v. West, Md. R. R. Co., 22 Sup., 489; Leh v. D. L. & W. R. R. Co., 30 Sup., that of the carrier by the circumstance | own skirts of negligence, but to prove that he has no interest in, and receives when, where and how the loss occurred, no part of, the compensation that is paid would be to impose upon him an obligafor the carriage and due delivery of the tion which attaches only to a carrier, and goods." Sawyer, J., in Hooper v. Wells, not to an ordinary bailee for hire." 27 Cal., 11, 85 Am. Dec. 211, said: "The liability of forwarders is like that of warehousemen and common agents, and is governed by the general rule applicable to other bailees for hire not subject to extraordinary liabilities. They are responsible for ordinary care, skill and diligence; that is, such care and diligence as prudent men in similar circumstances usually exercise in the manage-trusted to it for carriage, excepting for ment of their own business. Story on Bailments, Section 444. They are not, it is true, insurers like common carriers, but they are responsible for all injuries to property while in their charge resulting from negligence or misfeasance of themselves, their agents or employees." In American Express Company v. The Second National Bank of Titusville, 69 Pa., 394, Mr. Justice Sharswood, in delivering the opinion of the Court, said: "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 per-396; Allam v. Penn'a R. R. Co., 183 Pa., son or corporation to whom they might 174. In Keller v. Penn'a R. R. Co., 45 deliver it at any point off their own es- Sup., 383, Mr. Justice Head said: "It is, tablished route or line. If they were car- of course, true in Pennsylvania that, even riers at all, it was only to the nearest where there is a special contract between point of destination; beyond that they shipper and carrier, the latter is not perwere forwarders only. There was noth-mitted, on grounds of public policy, to ing unreasonable, unusual or unlawful in extinguish or even restrict its liability such a contract. It is very well settled for a loss occasioned by its own neglithat forwarders are not insurers as com- gence. But even in such cases, the shipmon carriers. They are liable only as per, suing on his contract, must prove ordinary bailees to carry for hire. A affirmatively the act of negligence on person,' says Mr. Justice Story, who which he relies. He cannot avail himself receives and forwards goods, taking upon of the presumption which the law raises himself the expenses of transportation, only in favor of him who relies on a for which he receives a compensation contract that the law makes for him.” from the owners, but who has no con- Injury to the contents of a car, however, cern in the vessels or wagons by which may itself furnish an inference of want they are transported, and no interest in of ordinary care in transportation: the freight, is not to be deemed a common | American Express Co. v. Sands, 55 Pa., carrier, but a mere warehouseman or 140; Rowdin v. Penn'a R. R. Co., 208 agent. **** To hold that a forwarder Pa., 623; Stewart v. B. & O. R. R. Co., merely is bound not merely to clear his 37 Sup., 273. 6 In this case, however, it must be remembered that the liability of the express company is that of a forwarder and not that of a common carrier. The defendant, having no road of its own, but undertaking to forward the horses over the roads of common carriers, is liable under its contract solely for the negligence of its agents and employees. In the affidavit of defense, the defendant expressly denies that the loss occasioned arose from any such source. If this be found upon the trial to be true, then the plaintiff cannot recover from the defendant the damages he claims. He has, however, the right to bring his action of trespass and declare against the carrier the negli-leged to be broken. gence of whose servants occasioned the loss. It was also averred that the horses were not damaged to the extent of $804.30, but that the damage was insignificant and far less than that amount. In view of the opinion concerning the proposition just discussed, I do not think this question requires much consideration. If it was important, I would say that the averment is too general to be of any effect. ment, but, on the contrary, stored and packed the celery in a careless and negligent manner, so that it was damaged by foul and contaminating odors and by freezing, and part of it became worthless and unmarketable. Mr. Justice Potter, in delivering the opinion of the Court, said: "It is clear that the legal wrong with which the defendant is charged is the breach of a contract. The plaintiff seeks to hold it responsible for the consequences of its failure to perform certain acts in the way in which it is alleged it agreed to perform them. The source of the obligation resting upon the defendant is the contract which is alTherefore, as sumpsit was the proper form of action to pursue in seeking a remedy. The fact that the breach of the contract occurred through negligence which was tortious in its character makes no difference. ✶ ✶✶ The underlying principle is, that where there is gain to the tort feasor, you can sue in quasi-contract. Where the wrong results in no such profit, the remedy is in tort only." Therefore, if, in this case, it is shown I do not think that the valuation of upon the trial that the loss for which the the goods enters seriously into the pres- plaintiff claims redress was caused by ent controversy. If the amount claimed the servants or agents of the defendant exceeded the valuation placed upon the in not properly shipping and caring for horses by the shipper, it might well be the horses, I think the plaintiff can recontended that, under the contract, the cover in this action. But, on the conrecovery must be limited to that amount.trary, if no such facts appear (and the Here, however, the injury is only partial, and the amount of the damages is for a very much less sum. The fact, therefore, that the horses, after delivery, brought a larger sum in the market than that at which they were valued in the agreement cannot be used for the benefit of the defendant in the present proceeding. Nor do I think that Stanton v. Phila. & Reading R. R. Co., 236 Pa., 419, rules conclusively the present case. There it was admitted that the plaintiff had delivered to the defendant company 3,651 crates of celery, for the purpose of having it kept in storage for his benefit, and that, when the celery was placed with the defendant, it was in first-class condition and was received as such; that the defendant failed to comply with its agree burden is upon the plaintiff to prove them), the verdict must necessarily be for the defendant. That the former situation is expressly denied in the affidavit of defense seems to me sufficient to take the case to the jury. For these reasons, am of the opinion that this rule should be discharged. Rule discharged. Bair v. Adams Express Company. Express companies - Liability of for damage to property forwarded-fhdavit of defense-Practice. Rule for judgment for want of a sufficient affidavit of defense. C. P. of Lancaster County, February Term 1915, No. 29. Charles W. Eaby, for rule. John A. Nauman, contra. October 9, 1915. Opinion by Landis, P. J. The question raised in this case is the same as that just decided in the case of W. P. Detweiler v. Adams Express Company, August Term, 1915, No. 41. For the reasons set forth in that opinion, we conclude that the rule for judgment ought to be discharged. We, therefore, make that order. Rule discharged. Quarter Sessions. Commonwealth v. Masonheimer. Criminal law Nuisance Exceptions by Commonwealth-Right to binding instructions to convict - Province of jury—Act of May 19, 1874. Under the Act of May 19, 1874, P. L., 219, exceptions may be taken by the Commonwealth to any ruling of the court in a criminal trial for nuisance; but the court cannot give binding instructions to convict, since the final question of the defendant's guilt rests upon the credibility of the witnesses and the conclusiveness of their testimony. Only where the facts are fully admitted and the case turns entirely upon a question of law submitted to the court, would binding instructions to convict be warranted. Motion by Commonwealth for new trial. Q. S. York Co., Aug. Sess., 1913, No. 96. binding instructions to convict. The defendant denies the power of this court to grant a new trial under these circum stances. The question thus raised was authoritatively decided against the Commonwealth in Com. v. Wallace, 7 Pa. Superior Ct. 405, where the appellate court said: " But whatever the English courts may have held, the practice in Pennsylvania from the origin of the Commonwealth has been based upon the view that a verdict of acquittal in a criminal case is the final determination of the case, and no case has been found in which a new trial has been granted at the instance of the Commonwealth. If a new trial may now be granted because of a misdirection of a judge, the power to grant it is conferred by the Act of May 19, 1874, P. L. 219, and is by that act vested solely in the appellate court." This decision was followed in Com. v. Stephens, 9 Pa. Superior Ct. 218, and in Com. v. Stillwagon, 13 Pa. Superior Ct. 547. See, also, Com. v. Hayward, 4 Del. Co. Reps. 569; Com. v. Coble, 9 Pa. Superior Ct. 215; and Com. v. Pflueger, 10 Dist. R. 717. To the same effect precisely is United States v. Sanges, 144 U. S. 310, where the Supreme Court of the United States held it to be "well settled by the overwhelming weight of American authority that the state has no right to sue out a write of error upon a judgment in favor of the defendant in a criminal case except under and in accordance with express statutes, whether that judgment was rendered upon a verdict of acquittal or upon the determination by the court of a question of law." A number of cases following this ruling will be found. in Rose's Notes to Vol. 144, U. S. Supreme Court Reports. The same con James G. Glesner and Harvey A. Gross, clusion was reached by the Supreme for motion. C. W. A. Rochow, contra. Opinion by WANNER, P. J. Although the defendant was acquitted of the charge of maintaining a public nuisance, the Commonwealth now moves for a new trial because the court refused, at the trial of this case, to give the jury Court of Pennsylvania in Guffy v. Com., 2 Grant, 66, which was decided prior to the passage of the Act of 1874, referred to in Com. v. Wallace, 7 Pa. Superior Ct. 405. The Act of May 19, 1874, P. L. 219, provides that in criminal cases charging the offence of nuisance or forcible entry and detainer," exceptions may be taken by the Commonwealth "to any de |