Faucher v. Wilson

• Citation: 68 N.H. 338,38 A. 1002
• Court: Supreme Court of New Hampshire
• Decision Date: 26 July 1895
• Parties: FAUCHER v. WILSON.

38 A. 1002

68 N.H. 338

FAUCHER

v. WILSON.

Supreme Court of New Hampshire. Hillsborough.

July 26, 1895.

Action by Henry I. Faucher against John W. Wilson. Judgment for defendant.

The defendant was engaged in the business of trucking goods for hire from the railway freight station in Manchester to different stores in the city. On one of the warmest days in the summer of 1891, he transported a hogshead of molasses from the freight station to the plaintiff's store, on Elm street, a distance of a little over half a mile. By reason of the fermentation of the molasses, the hogshead burst while being unloaded. The plaintiff's loss was not caused by any want of ordinary care on the part of the defendant. Each party moved for judgment in his favor.

Burnham, Brown & Warren, for plaintiff.

Joseph W. Fellows, for defendant.

CHASE, J. It is not found that the defendant was a common carrier. The finding that he was engaged in the business of trucking goods for hire from the railway freight station to different stores in the city lacks the distinguishing characteristics of a common carrier, namely, the holding of oneself out as ready "to carry at reasonable rates such commodities as are in his line of business, for all persons who offer them, as early as his means will allow." Shelden v. Kobinson, 7 N. H. 157, 163; Elkins v. Railroad Co., 23 N. H. 275; Moses v. Railroad Co., 24 N. H. 71, 80, 88, 89; McDuffee v. Railroad Co., 52 N H. 430, 448; State v. United States & Canada Exp. Co., 60 N. H. 219, 261; 2 Kent, Comm. 597, 598; Story, Bailm. §§ 495, 508; Brind v. Dale, 8 Car. & P. 207; Alkali Co. t Johnson, L. R. 9 Exch. 338, 343; Scaife v. Farrant, L. R. 10 Exch. 358, 365; Nugent v. Smith, 1 C. P. Div. 423; Fish v. Chapman, 2 Kelly, 349; Allen v. Sackrider, 37 N. Y. 341; Lough v. Outerbridge, 143 N. Y. 271, 278, 38 N. E. 292. The inference from this finding is as strong, to say the least, that the defendant's business was limited to trucking for particular customers at prices fixed in each case by special contract, as it is that he held himself out as ready to truck for the public indiscriminately, at reasonable prices. If such was the character of his business, he was not an insurer of the plaintiff's goods (there being no special contract of insurance), and was only bound to exercise ordinary care in respect to them.

If the defendant was a common carrier, he is not liable for the plaintiff's loss, since it happened from the operation of natural laws, which a common carrier does not insure against. Hudson v. Baxendale, 2 Hurl. & N. 574; Railway Co. v. Blower, 20 Wkly. Rep. 776; Nugent v. Smith, 1 C. P. Div. 423; Nelson v. Woodruff, 1 Black, 156; Smith v. Railroad Co., 12 Allen, 531, 533; Swetland v. Railroad...