Houston & Galveston Navigation Co. v. Dwyer , 29 Tex. 376 ( 1867 )

Smith, J.

appellants are sued as common carriers, engaged in the transportation of merchandise and passengers by steamboats, and otherwise, between the cities of Galveston and Houston, under the firm-name and style of “The Houston & Galveston Navigation Company,” and are charged with having received of the appellee, at Galveston, a lot of merchandise for transportation, to be delivered to him, in good order, at Houston; that while in their charge the merchandise was greatly damaged, to the loss and injury of the plaintiff below, and this suit is brought to recover that loss.

The defendants plead the general denial, and also that the merchandise was carried upon a vessel propelled by steam, known as the “Bayou City,” used by the defendants in carrying passengers and merchandise, &c.; that under an act of Congress of the United States, passed 30th August, 1852, for this purpose, the boat and all appendant had been duly inspected and examined, and found sufficient and proper for service; that the boat was duly manned with the proper officers and crew; that the engineer employed upon the boat, and in charge of the machinery and boilers thereof, was duly licensed by the board of inspectors, under said act of Congress; that the defendants were compelled, under penalties provided in said act, to employ upon their boat such licensed engineer and none other; that tlie loss complained of was caused by the neglect or want of skill and capacity of the engineer thus employed, and for which the defendants should not be held liable. The injury was caused to the merchandise from an explosion of a boiler of the vessel. The facts set forth in this plea were admitted by the plaintiffs below. Verdict and judgment were rendered in favor of the appellee, and the appellants bring the cause here for revision.

The doctrine, that persons engaged in transportation of the goods of all persons for hire are responsible for all damage done them while in their charge, unless by the act of God or public enemy, applies as well to common carriers by water as by land. (26 Wend., 591; 15 Con., 539; 3 Stew. & Port., 136; 11 Ohio, 303; 8 Hump., 497.)

This doctrine, which holds persons who may be transporting goods by water liable, applies as well to external as to internal navigation: one who transports from port to port, coastwise, or to foreign countries, (11 Pick., 41; 12 Con., 410,) except so far as the perils of the sea may be excepted by special terms in the bill of lading. (10 Johns., 1; 21 Wend., 190.)

The injury done the goods in this instance was by an explosion of a boiler of the boat. This could not be pretended to be the act of God or a public enemy, or a vis major, and the defendants must be held liable for the injury done, unless, as contended by them, they are relieved from the responsibility resting upon them as common carriers by the act of Congress referred to above. The bill of lading contains no exceptions from liability on account of the dangers of the sea or any other cause.

Article 4, section 5, of the Constitution of the United States, gives “ Congress the power to regulate commerce with foreign nations and among the several States, and with the Indian tribes,” which has been adjudicated to mean, intercourse with these nations and among the States for the purpose of trade,‘and includes all the means by which it may be carried on, whether by the free navigation of the waters or the passage over land through the States, when either becomes necessary for the commercial intercourse between the States. (18 How., 421; 4 Wash. C. C., 378; 15 Peters, 504.)

Whether this clause of the Constitution of the United States authorizes Congress to pass laws regulating the rights and liabilities of common carriers by water confined in their operations alone to the limits of one State, and thereby, in effect, to repeal the State laws upon the subject, may well be questioned. Can the rights and liabilities of common carriers of merchandise by water, from Galveston to Houston, be subject to congressional legislation, when their rights and liabilities are in no way connected with foreign commerce, or of that among the States ? (2 Pet., 251; 14 How., 568.) If Congress has this power, why cannot it also make rules and regulations for transportation by the railroad between those points, and also any other railroad in the State, or any other means of transporting merchandise? But, be that as it may, we are of opinion, that Congress has not, in the above-recited act, attempted to regulate the rights and liabilities of the proprietors of steamboats engaged in the business of a common carrier. If the act be at all applicable to a vessel propelled by steam, engaged in the internal trade of this State, and not coast-wise, we are of opinion it was not intended to release the carrier from any of the duties or liabilities attached to him by the common law, but that it was intended to give persons and property an additional security against injury and loss, that had in so many instances been caused by the use of imperfect and insecure boats and machinery, and unskillful and careless engineers, and has wisely made it a punishable offense to use a boat in transportation of freight, or to employ an engineer who has not been licensed by the board of inspectors, and thus officially indorsed for skill and trustworthiness. It is no answer to say that the defendants could employ no engineer without license; they could have selected among those who were licensed, and should not select one who could not obtain license.

It is evident that proprietors of steamboats cannot be exonerated from liability for losses caused by the neglect of any employee on the boat by the said act of Congress. The 52d section of this act (Brightly’s Dig., p. 857) reads as follows: “In all suits and actions against proprietors of steamboats; for injuries arising to persons or property, from the bursting of the boiler of any steamboat, or the collapse of a flue, or other injurious escape of steam, the fact of such bursting, collapse, or injurious escape of steam shall be taken as full prima facie evidence, sufficient to charge the defendant, or those in his employment, with negligence, until he shall show that no negligence has been committed by him or those in his employment.”

A verdict was rendered in favor of several who had been sued as members of the company, and it is here contended, that the plaintiff had no legal right to a judgment against any of the defendants, unless he obtained it against all that had been sued, and for this reason judgment should have been rendered in their favor. This is believed to have been the common-law rule of practice. That system of practice has not been adopted in this State, and ours assimilates more to the chancery practice, and we are of opinion that the rule in this State is different. (Shipman v. Allee,) [ante, p. 17,] decided at this term. The plaintiff could have dismissed as to these defendants, and we see no good reason why a verdict and judgment may not be rendered in their favor. We are unable to see that the other defendants have been, or how they could have been, deprived of any valid defense against the cause of action by the verdict" and judgment in favor of their co-defendants.

There is no error in the proceeding below, and the judgment is

Affirmed.