Coosa River Steamboat Co. v. Barclay , 30 Ala. 120 ( 1857 )

STONE, J.

In Paschall v. Whitsett, 11 Ala. 478, this court used the following expressions: “It may be conceded, that a statute which merely gives a remedy at law,, where it could previously have been made available in equity only, or vice versa, may, consistently with the constitution, operate retrospectively, so as to embrace contracts already made.” — See, also, Iverson v. Shorter. 9 Ala. 715.

In Hoffman v. Hoffman, 26 Ala. 545, it was said, “Whenever a statute is leveled against an abuse, or in furtherance of an acknowledged principle of right and justice, every reason exists for its most liberal application.” See, also, Wolcott v. Pond, 19 Conn. 597.

We think the following propositions are sustained both by reason and authority; and that we may safely lay them down as governing-this case :

1. It is not within the power of the legislature to takeaway vested rights. — Dash v. Van Kleck, 7 Johns. 477; Baughn v. Nelson, 9 Gill, 299; Woodruff v. The State, 3 Pike, 285; Paschal v. Perez, 7 Texas, 348; Bruce v, Schuyler, 4 Gilm. 221; Clarke v. McCreary, 12 Sm. & Mar. 347; Houston v. Bogle, 10 Iredell, 496.

2. The legislature may alter, enlarge, modify, or confer a remedy for existing legal rights, without infringing any principle of the constitution. — The People v. Tibbets, 4 Cowen, 384; Baughn v. Nelson, supra; Read v. Frankfort Bank, 10 Shep. 318; Woods v. Buie, 5 How. (Miss.) 285; Fales v. Wadsworth, 10 Shep. 553; Woodfin v. Hooper, 4 Humph. 13; Fisher v. Lackey, 6 Blackf. 373 ; Knight v. Dorr, 19 Pick. 48; Commonwealth v. Phillips, 1 Pick. 28.

3. It is not within the power of legislation to create a cause of action out of an existing transaction, for which there was, at the time of its occurrence, no remedy. — Falconer v. Campbell, 2 McLean, 195; Austin v. Stephens, 11 Shep. 520; Medford v. Learned, 16 Mass. 215; Sutherland v. DeLeon, 1 Texas, 250.

4. Statutes which relate alone to the remedy, without creating, enlarging, or destroying the right, operate generally on existing causes of action, as well as those which afterwards accrue. — The People v. Tibbets, 4 Cowen, 884 ; Baughn v. Nelson, supra; U. S. Bank v. Longworth, 1 McLean, 35; Pratt v. Jones, 25 Vt. 803; Searcy v. Stubbs, 12 Geo. 437 ; Paschal v. Perez, supra; Hope v. Johnson, 2 Yerger, 125 ; Maltby v. Cooper, 1 Morris, 59; West v. Creditors, 1 La. Ann. Rep. 365; Newton v. Tibbets, 2 Eng. 150; Rockwell v. Hubbell, 2 Doug. 197.

The aet of 1854, under which this proceeding was instituted, comes within the principles stated above, numbered 2 and 4; and the rule to show cause why the attachment should not be dissolved, was rightly discharged. — Acts of 1853-4, p. 29.

All the authorities agree, that a common carrier is excused from liability, if the loss or damage be traceable solely to the act of God. What are we to understand by the expression, “act of God” ? Lord Mansfield said, “I consider it to mean something in opposition to the act of man; * * * such act as could not happen by the intervention of man, as storms, lightning, and tempests.” Forward v. Pittard, 1 T. R. 27.

Messrs. Hare & Wallace, in their notes to Smith’s Leading Cases, vol. 1, p. 180, favor the idea, that the legal phrase, “act of God,” embraces only those results “that arc occasioned exclusively by the violence of nature ; by that kind of force of the elements, which human ability could not bave foreseen or prevented; such as lightning, tornadoes, sudden squalls of wind,, &e.”

In support of this position, these annotators refer approvingly to McArthur & Hurlbert v. Sears, 21 Wendell, 190. The opinion of Cowen, J., in the case cited, is certainly an elaborate and careful presentation of the authorities on this question; but with all due deference,, I think the case cited does not sustain them in their conclusions. The liability of the carrier, in that case, was based on the “admixture of human means” with the operations of nature ; and this, it was declared, vitiated the defense. Indeed, the loss was chargeable solely to the mistake of the master of the carrying vessel: mistaking a light on the steamboat North America, for one of the beacon lights of the harbor.

I think that Lord Mansfield, by employing the language, “such act as could not happen by the intervention of man,” did not intend to hinge the carrier’s liability on the physical ability of any man or set of men to rival the alleged operations of nature. His purpose was, to express in strong language the duty which the law casts on the carrier, of showing by satisfactory proof that the loss is not traceable, either in whole or inpart, to human means,, or to the negligence of himself or his agents; in other words, that it resulted from the unmixed “act of God.” In my opinion, “the act of God,” and the operations of nature, unmixed with human agency or human negligence, are synonomous. This view is sustained by the following modern authorities; and I think, it is the only one consonant with reason: Story on Bailments, §§ 511-16; Smyrl v. Niolin, 2 Bailey, 421; Williams v. Grant, 1 Conn. 487; Fish v. Chapman, 2 Kelly, 357; Edwards on Bailments, 462; Angell on Carriers, 181; Neal v. Saunderson, 2 Sm. & Marsh. 572; Cowles v. Finch, 12 Conn. 419.

In thus laying down my views of the law, it is not my purpose to shift the onus, or to relieve carriers from the strict diligence required of them in the older authors. To render -the excuse valid, not only must the carrier-trace the loss or injury immediately to the operations of nature, but he must also convince the jury that such loss or injury resulted from inevitable necessity, “which, no human prudence could foresee or prevent.” — Williams v. Grant, supra.

I think it should have been left to the jury, to say whether, at the time of the disaster, the boat was in the usual and customary channel; whether the snag was deposited there without human agency; and whether it was so concealed, and so recently deposited, that no human skill and prudence could have detected and avoided it. On all these points, the law lays the 'onus on the carrier.

The paper relied on as a bill of lading, is hut an account for freight, usually called a freight bill. This is a sufficient answer to that part of the argument, which assumes it to be a bill of lading.

We decline to consider the demurrers, as they present no question affecting the merits, which is not disposed of above.

Without making special application of these principles to the various charges given and refused, it is my opinion the judgment of the circuit court ought to be reversed. The chief-justice, however, differs with me. He holds, that the evidence in this case shows a case of a danger of the river, but utterly fails to trace the loss to the “act of God,” within the legal definition of that term. In support of his opinion he cites Hare & Wallace’s Notes, supra; McArthur & Hurlbert v. Sears, 21 Wendell, supra; Friend v. Woods, 6 Grattan, 189; Turney v. Wilson, 7 Yerger, 840.

Under the influence of the opinion of the chief-justice, the charge of the court was not technically correct. It did not, however, injure the 'defendant, because there was no evidence on which the jury could have excused the carrier. It was error without injury.

The result of this divided opinion between the only two members of the court who are competent to sit in this cause, is, that the judgment of the circuit court is affirmed.

WaleeR, J., not sitting.