Bennett v. Charles Byram & Co. , 38 Miss. 17 ( 1859 )

Harris, J.,

delivered the opinion of the court.

The defendants,in error brought their action in the Circuit Court against the plaintiff in error, to recover damages against him as a common carrier by steamboat, for the non-delivery of goods according to contract.

The defendant filed his answer, — a general denial of the statement of the cause of action in the complaint; upon which issue was joined, and jury and verdict for plaintiff.

It is assigned for error, that the jury found contrary to law and evidence.

That the court erred in giving the charges asked by plaintiff below, and in refusing charges asked by the defendant beloAV.

And lastly, that the court erred in refusing to grant a new trial.

It appears, by the record, that on the 4th day of June, 1855, the plaintiff in error, as master of the Eliza, No. 2, a steamboat navigating the Tombigbee river between Mobile and Aberdeen, by bill of lading of that date contracted to deliver certain goods as a carrier to the defendant in error.

The boat proceeded on her Avay as far as Gainesville, and was unable to proceed farther on account of the low stage of water. The goods Avere stored in the warehouse of McMahon in June, 1855. The water remaining too Ioav for steamboat navigation for several months thereafter.

On the 21st August, 1855, defendants in error sent an order to McMahon for all the goods except the iron, and received and hauled them to Aberdeen. And afterwards, in January, 1856, the iron was shipped to plaintiffs by the steamboat Champion. In this action it is sought to recover all the expenses which defendants in error incurred, after receiving the goods at Gainesville, and indeed after they were left there by the plaintiff in error, as well as a small amount of damage sustained by the rusting of the iron. It is not claimed that any other damage was suffered.

There is no proof of damage by negligence or other improper conduct on the part of plaintiff in error, unless his failure to reach Aberdeen with the goods intrusted to his care is to be so regarded. We lay out of view all that is said in this record, and in argument, as to the alteration of the bill of lading, and the circumstances under which the bill was signed, as wholly immaterial in this case. The addition of the words, “ water permitting,” did not change the character of the contract, as they are embraced under the general exception, “ the act of God.” See Angelí on Carriers, §§ 289, 333, and note 2.

The first question for our determination upon the record before us, which it is material to consider, is what was the obligation of the plaintiff in error under this contract as a common carrier.

Admitting that this bill of lading was intended as a contract to deliver the goods to the defendants in error at Aberdeen (which seems not'to have been expressed on its face), the carrier was bound first to proceed without deviation from the usual and ordinary course, to the place of delivery. He was next bound to deliver the goods to the consignees in safety, at all events, excepting the act of God, the public enemies, and the act or conduct of the owners. He was bound to make delivery in a reasonable time and with reasonable expedition, as no time of delivery is specified in the contract. For (says Mr. Angell in his work on Carriers, § 283), the duty to deliver, within a reasonable time, is a term ingrafted by legal implication upon a promise or duty to carry generally. See also Hand v. Baynes, 4 Whart. Penn. R. 204, cited in note, and numerous other cases cited. “Whatwould be reasonable time, must be determined under all the circumstances, with a view to the condition of the river, the season of the year, the state of the weather,” &c. See Angell on Carriers, § 289, and notes, p. 288 ; 8 Term. R. 259 ; Story on Bailments, § 545, a.

Again: the obligation of the carrier to deliver according to his contract, is only suspended during any temporary obstruction. It is not thereby avoided. Angelí on Carriers, § 289, and cases cited. Hence, plaintiff in error was bound, notwithstanding the hindrance of navigation by low water, to deliver defendant’s goods in safety, as soon as ho could, by reasonable diligence, after the removal of the unavoidable cause of delay. See also Angelí, § 294.

From the obligation to deliver, at all events, the carrier may, under certain circumstances, be excused. And among these, the same learned author mentions the following: “ If the owner or shipper is induced from any cause to accept the goods short of the place to which they were first intended to be conveyed, the carrier is not only discharged from liability further, but is entitled to a pro rata compensation for the transportation as far as it has been continued.” Angelí, p. 330, § 331.

The acceptance of the goods voluntarily from the warehouseman, knowing that the voyage had been abandoned on account of the low water, and paying these charges for storage, will excuse delivery, and discharge the carrier from further liability therefor. See Rossiter v. Charter, 1 Doug. Mich. R. 154; Parsons v. Hardy, 14 Wend. 215; Hunt v. Haskell, 11 Shep. Maine R. 339; 1 Nott & McCord, 132.

In the case before us the proof is clear by the testimony of the parties themselves, that they did accept the goods at Gainesville, paid the freight and storage, and hauled the goods to Aberdeen— all except the iron — long before the plaintiff in error could have complied with his contract, or was bound to have made delivery under the facts in proof. By this acceptance, we have seen that the plaintiff in error was discharged from all subsequent liability or responsibility on account of his contract. Until the goods were so accepted, the carrier was entitled to no compensation before delivery, and was bound for all charges and expenses incurred in the preservation of the goods, and all damage or injury impairing their value while in his possession. After acceptance, he was only entitled to his pro rata share of the freight. If he received more than the usual freight from Mobile to Gainesville, he is liable to the defendant in error for such overplus, if they have been compelled to pay it, or have paid it, to him or to his agents or factors, in order to obtain their goods.

After acceptance of the goods at Gainesville by the owners, the carrier was not bound for the expenses of transportation from thence to Aberdeen.

In the view of the case here presented, the 4th, 5th, 6th, 7th, 8th, 9th, and 10th instructions were erroneous, and the verdict of the jury for a greater sum than the testimony warranted under the principles above stated. .

Let the judgment be reversed, cause remanded, and a venire de novo awarded.