Moore v. Mayor of Mobile , 1 Stew. 284 ( 1828 )

JUDGE WHITE

delivered the opinion of the Court.

In support of the plaintiff’s position, it is contended that the liability which the law, from principles of public policy to prevent collusion with thieves, imposes on common carriers, should, from the same policy, and for the same reason, be required at the hands of these defendants. We can'find no decision which would bear us out in the application of this principle, (severe in itself and existing only in a few instances from the force of policy alone,) to the present case. Courts hate heretofore been cautious in extending it, and we feel ourselves bound to tread in their prudent footsteps. We believe that the situation of the defendants in the present case resembles much more strongly that of a warehouseman, or a bailee for hire without special contract to insure. A warehouseman, or the community by whom he may be employed, almost universally receives storage, and yet it will be seen, by consulting the late edition of Comyn's Digest, ^a and the authorities there referred to, that he is only bound to take reasonable and common care of the commodity entrusted to his charge. On the previous page of the same book and in 1 Esp. Cases,^b it is laid down, that a bailee for hire is not answerable for the property, if he took the same care of it that a prudent man would take of his own ; not, though the loss should arise from the embezzlement of his servants. We think that the defendants in the present action did not incur a greater responsibility than in the cases cited; and, therefore, are of opinion that the Circuit Court were right in their charge, and that this judgement must be affirmed.

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