Fitzsimmons vs. The Southern Express Company.

and cases cited: Chitty on Car., 38. As to valuation, they said owner was bound by representations at shipment: Ang. on Car., 258-9, 481, 484; Story on B., 565; O. City B'k vs. Brown, 9 Wend. R., 116; Hollister vs. Nolen, 19th Wend. R., 234; Cole vs. Goodwin, Ib., 251; Watkinson vs. Laughton, 8 John. R., 213; Amory vs. McGregor, 15th John R., 24. Delivery to Bates relieved defendant: Labar vs. Taber, 35 Barb., 305; Ang. on Car., 291, 502; Rome R. R. vs Sullivan, Cabot & Co., 14th Ga. R., 279. Diligence is for the jury: Ang. on Car., 7, 11, et passim.

MCCAY, J.

We have no doubt that the verdict of the jury is supported by the evidence. The plaintiff in error, has no right to a new trial, unless there be such error in the charge of the Court as to require it.

The principal complaint made against the charge is, that the Court told the jury: 1st. "That in such a case as this the rule that one person cannot be the agent of two parties, who have conflicting interests, did not apply." And 2nd, "that if the jury believed Alston shipped the goods to the care of Bates, he made Bates his agent, and a delivery to Bates discharged the company; thus, if goods are shipped to the care of the Superintendent of the Georgia Railroad, it makes such superintendent the agent of the shipper, and a delivery to him relieves the company of all liability."

Some criticisms were made in the argument, on other parts of the charge, but it was conceded, and we think properly, that if the two charges we have referred to were properly given, the other errors, if they were such, were not so material as to justify the reversal of the judgment of the Court below, in refusing a new trial.

As to the first point, we doubt if there be any such rule of law, as was contended for, and which it is complaine the Judge said did not apply to such a case. Two parties may always, by mutual consent, no matter how diverse thei interests, make a third their agent. It is true, if A have a agent, that agent cannot, without A's consent, act as the agen

Fitzsimmons vs. The Southern Express Company.

of B, in a matter in which A's interest conflict with B's. But B, who selects the agent, knowing he is the agent of A, cannot object to take advantage of his own wrong, in giving, knowingly, or the agent a trust, conflicting with his duty to A. This is plain common sense, and the every day practice. It is not denied that Mr. Alston knew Bates was the agent of the Express company, and if he did make Bates his agent, however the company might complain, Mr. Alston cannot.

2. Was there evidence to justify the other charge of the Court? We think there was. The charge is justifiable if there was any evidence going to show that Alston made. Bates his agent, that is, sent his goods to the care of Bates, meaning not to the company but to Bates, as an individual. Bates says he promised Alston to take care of the box, as though it were his own, and there is much in the testimony of both Alston and Bates to show, that the mere transhipment of the box to Charlotte, would not fufill his intentions. He desired it, when there, to be kept and taken care of. He did not expect it to be delivered to Mrs. Fitzsimmons, on its arrival, but stored, until it suited him, or her, to get it. Prima facie, such a duty is outside of the business of an Express Company. Its undertaking is to carry. It is true, that, as a necessary incident of carriage, there is a duty, as bailee to keep safely, until delivered, but an Express Company does not, prima facie, make contracts to keep, independent of the duty incident to their undertaking as carriers. As we have said, there is evidence, from which it was competent for the jury to presume that Alston expected and intended more should be done than simply to carry his box and safely deliver it-that he wanted it stored, watched, kept, for an indefinite time, after it reached Charlotte. This duty the jury might presume, from what Bates says, Alston expected Bates, as an individual, to perform. We do not say, the evidence of Alston and Bates proves this, but, it goes to prove it, and, if so, it was proper for the Judge to give to the jury the law to be applied to such a state of facts, if they believed, from the evidence, such a state existed.

But there was more in the evidence than the statements of

VOL. XL.-22.

Fitzsimmons vs. The Southern Express Company.

Bates and Alston. The box was directed to "Mrs. Fitzsimmons, care of Bates, agent of the Southern Express Company, at Charlotte." We are inclined to think that if the address stood alone, it would justify the charge. The company would be bound to take care of this box, as incident to its duty as carrier, without any such direction. If nothing more was intended, why was anything more said? The simple direction, to "Mrs. Fitzsimmons," would have covered all that, it is now contended, was meant. If it had not been intended that a special trust was placed in Bates, why does his name appear? Nobody pretends that there was any custom of the company, or of those who dealt with it, to direct packages thus. It is an unusual and unnecessary addition to the address, unless something more was meant than would follow from the simple address to Mrs. Fitzsimmons. If anything more was meant, then Bates was Alston's agent, and a delivery to him complied with the contract.

If Bates kept it in the company's rooms he did so as the agent of Alston, and if he shipped it to Richmond, he did that also as his agent. The cases in 2 Redfield on Railroads, 65, and the case in 16th New York Court of Appeals, 515. are distinguishable from the case at bar in this, that there it was in proof that it was common to direct goods that way. That when they were designed for a locality not on the line, but in the country, on one side or the other, this direction was put there to indicate at what station they should be stopped, and sent inward. Either station, out of two or three, might be chosen, at the option of the consignor. We can easily see how such a custom might arise.

But Charlotte was on the line-it was the very point to which the goods were consigned, and we can see no meaning in putting them in the care of Bates, unless it was intended that he, not the company, should take care of them at Char lotte. They were in the care of the company without this. There is nothing in the testimony to hold the defendant's below liable, in their capacity as carriers. If they

at all, it is as warehousemen, or simply bailees. In that capacity, we think, there was sufficient evidence to justify the

White vs. Ross.

verdict. It is true, the evidence is not conclusive. But it is a well settled rule, that the Court will not disturb the verdict, unless it be strikingly against the weight of evidence. Assuming that the direction did make Bates the agent of Alston, as mere warehousemen, and that too without hire, the company do not appear to have acted with such negligence as would authorize us, under the circumstances, to say that the verdict shocks the moral sense. It is plain this box was in danger at Charlotte. The company, and other prudent people, were moving their valuables to Richmond, and it would be very hard to hold the defendants below liable, unless they can show clearly what became of the box after it got to Richmond. Public history, informs us of events there, just at that period, which make it very probable what became of it. In the going out of one army, and the coming in of another, in the burning and sacking of a city, a box of silver would hardly escape both fire and thieves. Judgment affirmed.

WILLIAM H. WHITE, administrator, plaintiff in error, vs. ALFRED ROSS, defendant in error.

bill was filed by R., a person of color, against the administrator of R., person of color, alleging that the complainant was the illegitimate son of the intestate, who, during his lifetime, and at the time of his death, always recognized, owned and treated the complainant as his on and child. The intestate died about the 11th day of July, 1866. The complainant claims one-half of the intestate's estate, as his heir-law, under the 3d section of the Act of 9th March, 1866: Held, bat as the intestate died after the passage of the Act of 9th March, 866, which declared "every colored child heretofore born, to be the gitimate child of his mother, and also of his colored father, if knowledged by such father," and before the passage of the Act of

December, 1866, that the complainant is entitled to inherit his are of the intestate's estate as the legitimate child of his deceased ther.

istribution of estates. Illegitimates. Negroes. Decided Judge GIBSON. Richmond Superior Court. June Term,

White vs. Ross.

The bill of Alfred Ross, of said county, averred that he was the illegitimate child of Jacob Ross, a negro, of said county, who died intestate, leaving realty and personalty worth $6,000 00, and no heir but his wife, (who was not Alfred's mother, and had no children by Jacob Ross,) and himself; that Jacob Ross, "during his lifetime, and up to the time of his decease, (11th July, 1866,) always owned, recognized and treated Alfred as his son and child;" that said property was accumulated by the labor of said Jacob, assisted by said Alfred; that said White administered on said estate, which was inventoried at $4,242 80, that being less than its value; and notwithstanding the claim of Alfred for his distributive share of said estate, said White refused to give him any part of it, and delivered the whole of it to the widow of Jacob Ross, who made a will, by which this property passed to her children by a former husband, to the exclusion of said Alfred, (in which said White was named as her executor,) and died. White proved the will, was qualified as such executor, and was proceeding to execute the will. Alfred claimed that he was entitled to half of said estate, or if the widow took dower in the lands, then to one-half of the personalty and two-thirds of the realty in presenti, and a remainder in the dower estate at the death of said widow, and because White had disregarded his claim, he prayed an account and settlement from him, etc., both in his individual capacity and as executor of said widow.

To this bill a general demurrer was filed. The point was, that because Alfred was an illegitimate, whose parents were never married, he was not entitled to any part of said estate. The demurrer was overruled, and the defendant was required This is assigned as error.

to answer.

JOHN T. SHEWMAKE, for plaintiff in error.

J. C SNEAD, CLAIBORNE SNEAD, for defendant in error