Varble, &C. v. Bigley
| Decision Date | 25 March 1879 |
| Citation | 77 Ky. 698 |
| Parties | Varble, &c. v. Bigley. |
| Court | Kentucky Court of Appeals |
The appellants, who alleged that they were and for many years had been engaged in the towboat and jobbing business, on the Ohio River and its tributaries, brought this action against the appellee to recover the agreed compensation for towing a coalboat containing twenty thousand bushels of coal, from Pittsburgh, Pa., to a place called "the Pumpkin Patch," above Jeffersonville, in the state of Indiana; and also to recover for an alleged indebtedness on other accounts, not necessary to be stated.
The appellee denied that the coalboat had been delivered at the place where the appellants undertook to deliver it, and alleged that in consequence of the negligence of the appellants the boat was sunk, and the greater part of the coal was lost; and sought by way of counter-claim to recover damages sustained in consequence of the sinking of the boat.
The law and facts were submitted to the court without the intervention of a jury, and the petition and counter-claim were dismissed. From that judgment the appellants appeal and the appellee prosecutes a cross-appeal.
The parties disagreed as to the place at which, by the terms of the contract, the coalboat was to be delivered. The appellants contended that it was to be delivered at "the Pumpkin Patch," and the appellee contended that it was to be delivered at the regular landing of Bonner & Duffy, some distance below "the Pumpkin Patch." The appellants also contended that the boat was landed and received by the consignees, and that they took possession and control of it.
On all these questions there was a direct conflict in the evidence, and without reciting it we deem it sufficient to say there was ample evidence to authorize the finding of the court, and that this court will not enter into a minute examination and analysis of the evidence in order to determine whether there may not be a preponderance in favor of the appellants.
The judgment dismissing the petition must therefore be affirmed.
The court, in dismissing the appellants' petition, decided that they had not delivered the tow at the place agreed upon, and thus was established one of the facts necessary to sustain the counter-claim.
If the boat was lost in consequence of the negligence of appellants, there should have been a judgment against them on the counter-claim; but as the court dismissed the counter-claim, and the evidence on the question of negligence was conflicting, we must presume that the court found there was not such negligence as would of itself render the appellants liable for the loss of the boat. (Coleman v. Meade, 13 Bush, 358.)
But the appellee contends that the appellants, as owners of the towboat, are liable as common carriers, and this presents the only question of difficulty in the case.
Whether the owners of steamboats, who undertake to tow other crafts, are common carriers, is an open question in this state, and the authorities on the subject are in conflict.
The Supreme Courts of Louisiana and North Carolina have decided that they are. (Smith v. Pierce, 1 La. 349; Adams v. N. O. Steamboat Co., 11 La. 46; Walston v. Myers, 5 Jones, 174.)
The Supreme Courts of California and New Jersey, while deciding the cases before them upon other grounds, and waiving this question as unnecessary to the decision of the cases, have intimated similar views. (White v. Mary Ann, 6 Cal. 470; Ashmore v. Penn. Steam-tow & Transportation Co., 4 Dutcher, 180.)
The Supreme Courts of New York and Pennsylvania hold the opposite doctrine. (Caton v. Rumney, 13 Wend. 387; Alexander v. Green, 3 Hill, 1; Wells v. Steam Nav. Co., 2 Comst. 204; Leonard v. Hendrickson, 18 Pa. St. 40.)
We do not find that any of the cases have entered into a discussion of the principles governing the subject, and in this state of the authorities we feel at liberty to treat the question as res integra, and to decide it upon such principles as from its nature ought to govern in its solution.
The authorities, both elementary and judicial, recognize two kinds or classes of carriers, viz. private carriers and common carriers.
All persons who undertake, for hire, to carry the goods of another belong to one or the other of these classes. The former, like ordinary bailees for hire, are only liable for the injury or loss of the goods intrusted to them when it results from the failure of themselves or their servants to exercise ordinary care. The latter are liable as insurers for all injury or loss not resulting from the act of God or of the public enemy. The former are not bound to carry for any person unless they enter into a special agreement to do so. The latter are bound to carry for all who offer such goods as they are accustomed to carry, and tender reasonable compensation for carrying them; and if they refuse to perform their obligation in this respect, they are liable to respond in damages.
Private carriers are such as carry for hire, and do not come within the definition of a common carrier. (Angell on Carriers, sec. 46.)
If, then, we ascertain whether the owners of steam towboats come within the definition, we will have reached the conclusion sought.
(Parsons on Shipping and Admiralty, vol. 1, p. 245.)
etc. (Angell on Carriers, sec. 67.)
"To bring a person within the description of a common carrier, he must exercise it as a public employment; he must undertake to carry goods for persons generally; and he must hold himself out as ready to engage in the transportation of goods for hire as a business, not as a casual occupation pro hac vice." (Story on Bailments, sec. 495.)
"Common carriers undertake generally, and for all people indifferently, to convey goods and deliver them at a place appointed, for hire, and with or without special agreement as to price." (2 Kent, 598.)
In Fish v. Chapman (2 Kelly, Ga. R., p. 353) the question was whether Fish was a common carrier. The court said: ...
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