Ducker v. Barnett

• Decision Date: 31 May 1838
• Citation: 5 Mo. 97
• Court: Missouri Supreme Court
• Parties: DUCKER v. BARNETT & SHEOFE.

5 Mo. 97

DUCKER

v.BARNETT & SHEOFE.

Supreme Court of Missouri.

May Term, 1838.

ERROR TO THE CIRCUIT COURT OF JACKSON COUNTY.

T. C. BURCH, for Appellant. Upon this evidence the court instructed the jury, on motion of the plaintiffs, “that if the jury believe from the evidence that the defendant received the goods at the lower bank, and undertook to keep them for a reasonable reward, and attempted to carry the goods up the bank, and in so doing lost the goods, he is responsible, unless it was out of his power to save them, from acts of God or the enemies of the State.” The giving of this instruction is assigned for error, and surely it is manifest error. The doctrine embraced in the instruction is applicable alone to common carriers and probably to inn-keepers and stable-keepers; and what is said in the declaration about common carriers? Not a word. It charges the defendant as an ordinary bailee for hire, which every warehouseman is in law. See Story's Commentaries, Bailments, p. 289, and as such responsible for losses by ordinary negligence. Ibid, Jones' Bailments, 97, 49 and 96; Roberts v. Turner, 12 Johns. R. 232; Brown v. Denison, 2 Wendell's R. 593. And the case of a warehouseman is not to be governed by that required of common carriers. Vide same authorities.

But suppose the declaration charged the defendant with any promise or undertaking whatever to carry (but it does not), it is not every person who undertakes to carry goods for hire that is deemed a common carrier. A private person may contract with another for the carriage of his goods, and incur no responsibility beyond that of any ordinary bailee for hire; that is to say, the responsibility of ordinary diligence. Story's Bailment, 322; Bac. Abr., Carrier A.; Robinson v. Dunmore, 2 Bos. & Pul. 417; Hutton v. Osborne, Selw. N. P. 382, N.; Jones' Bailm. 121. 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's Com. Bailments, 322, and authorities there cited in note 2. A common carrier has therefore been defined to be one who undertakes for hire or reward to transport from place to place the goods of such as choose to employ him. Story's Com. Bailments, 322 and authorities there cited in note 3.

BURDEN, for Appellee. The main questions presented from the declaration, evidence and the instructions given and refused, are: First, did the appellant become liable as a common carrier? Secondly, was the judgment given for the proper party? Thirdly, is the evidence made a part of the record in this cause? First, I contend that the declaration is sufficiently broad to charge the defendant below as a common carrier. See 2 Chitty's Pleadings, pages 655, 679. Secondly. That the evidence is sufficiently broad to charge the defendant as a common carrier, although it is in proof that the defendant had said that he would not receive and be responsible for goods thrown on the lower bank; yet, it is very evident that he received the plaintiff's hogshead of sugar and two other persons' goods and chattels at the lower bank on the same day; and that the plaintiffs had no notice that he was not accustomed to receive goods at the lower bank on the river; and the evidence goes to show that he, the defendant, was in the habit of receiving goods at the upper bank for persons generally, and storing the same, and receiving compensation therefor, thereby holding himself out as a common carrier. Thirdly. That warehousemen in this country frequently have the business and duty of carriers attached to their other character, and then they become responsible as carriers. See 2 Kent's Com....