Southern Express Co. v. Newby , 36 Ga. 635 ( 1867 )

Walker, J.

1. An Express Company which pursues continuously, for any period of time, the business of transporting goods, packages, etc., is a common carrier; and in ease of the loss of goods entrusted to it to be carried, the presumption of law is against it; and no excuse will avail it, unless the loss was occasioned by the act of God, or public enemies of the State. Rev. Code, Sec. 2040; Fish vs. Chapman, 2 Kelly’s Rep., 349. At common-law a carrier is in the nature of an insurer, and is bound to keep and carry goods entrusted to his care safely, and is liable for all losses, and in all events, except those caused by the act of God, and the king’s enemies. This is the law, it is believed, in every State in the Union. Ch. on Car., 34, and note.

2. The responsibility of the carrier commences with the delivery of the goods either to himself or his agent, or at the place where he is accustomed or agrees to receive them. Rev. Code, Sec. 2044. In this case, the witnesses do not agree on the question of delivery, but that was a question for the decision of the jury, and they found in accordance with the weight of the evidence; in accordance with the receipt which acknowledged the reception of the goods. It is very clear that the agent of the Company agreed to receive the goods at the place where they were, in the depot, and the agent of the plaintiff ceased all control of them from the time of the giving of the receipt. There was sufficient evidence to warrant a finding that the goods had been delivered to the carrier, and when the liability commences by a delivery, it continues until the delivery of the goods at the point of destination. Code, 2044.

3. It is insisted that the receipt given in this case was evidence of such an express contract as is contemjdated by the Code, Sec. 2043. Perhaps a more inviting field for legal disquisition than this, could not be found. The books, especially of late yeai’S, are filled with cases bearing upon this question. One who has leisure, and desires to explore this doctrine, can be gratified by examining Angel’s and Chitty’s works on Common Carriers; Story and Edwards on Bailments; the notes in Smith’s leading cases to Coggs vs. Bernard, and the cases in 19 and 21 Wendell, and 2 Hill’s H. Y. Reports.

Our Code has incorporated the rules of the common-law as expounded in Georgia, in Fish vs. Chapman, 2 Kelly, and with it we are satisfied. The learned annotator of Ch. on Car., p. 45, calls the opinion of Mr. Justice Nisbet, in Fish vs. Chapman, a “learned and thorough opinion,” and quotes it almost entire as evidence of the common-law. “ A common carrier cannot limit his legal liability by any notice given either by publication or by entry on receipts given, or tickets sold. He may make an express contract, and will then be governed thereby. Rev. Code, Sec. 2042. The carrier, then, cannot limit his liability by entry on receipts given, though he may make an express contract. This section intended to require the assent of the shipper to be given to any modification of the common-law contract of common carriers. The mere acceptance by the shipper of a receipt with an entry on ‘ it, was not intended to be an express contract, for the carrier cannot by this, limit his liability. A carrier may adopt reasonable rules and regulations for his own safety and the benefit of the public, (Rev. Code, Sec. 2043 ;) such as requiring the nature and value of the goods delivered to him, to be made known, and any fraudulent acts, sayings or concealments by his customers, will release him from liability. Rev. Code, Sec. 2054; Ang. on Car., Sec. 235-6. In 1 Bell’s Commentaries, p. 382, he says: “ There seems to be only one point to which, legitimately, notices of carriers could be admitted, viz: the regulation of the consideration for risk. Saving always the power of making an express contract, the effect of a mere notice ought justly to be restricted to this point; as to which alone it is competent for a carrier to refuse employment.”

The entry on the receipts in this case, can be regarded in no other light than as notices given by the carrier, and though it be considered that they were brought home to the plaintiff, yet they are not of that character, and did not relate to such “regulations” as he had a right to adopt of his own mere will, and bind shippers thereby. They did not relate alone to “the consideration for risk,” and there is no pretence that the carrier was not correctly informed as to the nature and value of the goods entrusted to him. There were no fraudulent acts, sayings or concealments by his customer. It was a simple effort on the part of the carrier, by an entry on a receipt, to limit his legal liability; nothing more, nothing less, and this the law says he cannot do. “ For the law charges this person (the common carrier) thus entrusted to carry goods, against all events, but acts of God and enemies of the king. For though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless, he is chargeable. And this is a politic establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs oblige them to trust these sort of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all persons that had any dealings with them.” Per Holt, C. J. Coggs vs. Bernard, 2 Lord Raym. R., 918.” “It appears from all the cases for one hundred years back, that there are events for which the carrier is liable, independent of his contract. By the nature of his contract, he is liable for all due care and diligence; and for any negligence, he is sueable on his contract. But there is a further degree of responsibility by the custom of the realm, that is, by the common law, a carrier is in the nature of an insurer.” Per Lord Mansfield in Howard vs. Pittard, 1T. R., 33, (1785.) “His responsibility is established with a view to public policy, to the reward which he receives, to his character as an insurer, and to the terms of his contract, express or implied.” Edwards on Bail., p. 454. “ The extent of the carrier’s liability, does not depend on the terms of his contract; it is declared by law when he is charged as a carrier; it is on the ground of an obligation imposed upon him by law.” Ib., 46 6-7. His liability being fixed by law, he cannot lessen it at will by notice brought home to the opposite party, but he may make an express contract, and will then be governed thereby. Having become liablefor the custody of the goods, it devolved on defendant to show such facts as will relieve it from this liability; otherwise, it will be held accountable. In Berry vs. Cooper, 28 Ga. R., 543, the Court below charged the jury, that if the cotton was received by the carrier under a contract exempting him from loss by fire, and the cotton was burnt, still the plaintiff was entitled to recover, unless there was no negligence on the part of the carrier, and the onus of proof of this fact lies on the carrier. This charge was excepted to, and this Court held that it was right; and the Court say : “ To place the onus upon the plaintiff, would be to deny him all redress. * * Let the carrier then prove the loss and the manner of the loss. Policy, as well as the safety of all concerned, demands the establishment of this rule,” p. 551. This is conclusive, and establishes the doctrine, that in cases of express contracts, the onus of proving the facts necessary to relieve the carrier from the common-law liability for the loss of goods entrusted to him as such, devolves upon him, and not upon the shipper.

4. The reception of the goods to be carried, makes the carrier liable for their safe custody and transportation within a reasonable time; and if he would relieve himself from liability, he should by proof, show such facts as may be necessary for that purpose. The charge requested by defendant’s counsel as set out in the fifth ground of the motion for a new trial, was given with a qualification which the Court deemed necessary to make it applicable to the facts of the case. We understand there is no difference of opinion as to the correctness of the general proposition contained in the request. Standing alone, it was not applicable to the facts of the case, and the Court might very properly have simply declined to give it in charge.

5. The Court is not bound to give in charge a general proposition, though it be the law, unless it be applicable to the facts of the case. If such general charge be requested, he may either decline to give it, or he may modify or add to it so as to make it pertinent to the facts and the issue to be tried. While the request to charge, with the addition made thereto by the Judge, is not perhaps as happily expressed as it' might be, still we think it sufficiently clear to be understood, and to contain a correct legal proposition. We understand the whole charge taken together, to mean that so far as a common carrier is concerned, the mere acceptance by a shipper of a receipt containing limitations of the carrier’s liability, would not make an express contract between the parties, and thereby relieve the carrier from the extraordinary diligence imposed upon him by law. Thus understanding the charge of the Court below, we concur with him.

This is a hard case, and I have felt a strong desire to protect this Company against the payment of this claim, if I could do so on legal principles. If the jury had found that an express contract was made, by which the Company was not to be liable as common carriers, but only as ware-housemen, and only took charge of the goods as such, until such time as means of transportation could be procured, I think I would have been better satisfied with the verdict. But that was a question for them, and I cannot say that the verdict is decidedly and strongly against the weight of evidence. This issue having been found against the defendant, I think, under the law, it is accountable for the goods burned; and the whole Court being of that opinion, the judgment of the Court below is affirmed. See also the cases of Purcell and Barnes against the same defendant decided during this term.