Fish v. Ross

• Decision Date: 31 May 1847
• Docket Number: No. 53.,53.
• Citation: Fish v. Ross, 46 Am.Dec. 393, 2 Ga. 349 (Ga. 1847)
• Parties: William Fish, plaintiff in error. vs. Chapman & Ross, defendants in error.
• Court: Georgia Supreme Court

2 Ga. 349

William Fish, plaintiff in error. vs. Chapman & Ross, defendants in error.

No. 53.

Supreme Court of the State of Georgia

MAY TERM, 1847.

From Washington.

This was an action brought by Chapman & Ross against William Fish, in Washington countySuperior Court, and was tried before Judge Holt, March Term, 1847.

It appeared that Fish the plaintiff in error, received at the then head of the Central Railroad, from the agent of transportation on that road, certain packages of goods belonging to Chapman & Ross, the defendants in error, which, by special contract he promised to deliver in good order and condition at Macon, unavoidable accidents only excepted.In attempting to cross a stream his wagon was upset and the goods damaged.The action was brought to recover the loss sustained by the injury thus done to the goods.Upon the trial the special contract to deliver as above was proven, whereupon the Court below decided that the plaintiff in error, under his contract with Chapman & Ross, was a common carrier, and the defendants in error recovered.

To which decision of the Court below the plaintiff in error excepted.

Fish, for the plaintiff in error.

Thomas & Johnson, for the defendants.

Mr. R. M. Johnson, for defendants, submitted the following points and authorities:

All railroads are common carriers unless exempt by some special provision.

An agent of a railroad giving a receipt of goods to a bailor for a wagoner connects the wagoner with the railroad, and thereby makes him a common carrier.

A wagoner is a common carrier whether transportation be his direct and principal employment or only an occasional and incidental employment.Smith Leading Cases, Coggs vs. Barnard, 178, note referring to 1 Watts & Sergeant, 285.

One who undertakes to carry produce or goods of any sort from one place on the river to another is a common carrier.See Smith L. C. above, referring to Peck Ten.R. 270; 17 Yerger, 340, 342.

All persons carrying goods for hire come under the denomination of common carriers.PetersdorffAbr. b. 57.

Where a witness testifies that one is a common carrier, it must betaken that he knows what constitutes a common carrier.

Where a wagoner gives his receipt for goods restricting a liability which attaches to a common carrier, but not to a special bailee for hire, he admits himself to be a common carrier.

If a common carrier deviates from the voyage, he is liable for all losses, even those which arise from unavoidable accident.Story on Bailments, sec. 509; Wright 193;5 PetersdorffAbr. 143;Story on Bailment, sec. 497.

The liabilities of a carrier by land and of a carrier by water are the same; or, if not the same, those of a carrier by land are greater.Story on B. 497.

A common carrier is liable for all losses which happen, except by act of God or public enemies.Act of God means something in opposition to act of man 1 T. R. 27.Something occasioned by violence of nature.1 Wend. R. 190, 195, 196; Story on B. sec. 511.Inevitable necessity.Ib, sec. 489;19 Wend. R. 263.

A common carrier cannot restrict his liability by notice or express agreement in Georgia.He could not do so in England until 1796, and such restrictions then were confined almost exclusively to certain goods of great value and small bulk, and to a certain sum.He cannot, at common law, restrict his liability.He is an insurer.1 Esp. R. 36;19 Wend. R. 232, 251; Story on B. 493;1 StarkieR. 186, 172;2 HillR. 623.

If a common carrier can limit his liability, a promise to carry safely, unavoidable accidents only excepted, is no limitation of his liability, " unavoidable accident" being synonymous with "act of God."

Mb.Thomas, on same side in conclusion, contended, that if the party was not a common carrier, his obligations are precisely the same under his contract; and if any difference exists, he is even more strictly liable by his contract than a common carrier.Story on B. sec. 36.

Unavoidable accidents and inevitable accidents are the same, and both mean whatever occurs by the act of God.Story on B. secs. 511,457;2 Bos. & Pul. R. 419;Smith L. Cases, Coggs vs. Bernard, 33 LawLib. 180.

Departing from the public road or highway when an accident happened, it is a conclusion of law that it was by negligence.Story on B. secs. 509,413.

If the Court below erred in charging the jury that the party was a common carrier, still he was a private carrier, under as strong liability by contract as common carriers, and therefore error in this could not have controlled the verdict.

The Court did not err in charging the jury that leaving the road shows negligence.

By the Court—Nisbet, J., delivering the opinion.

The plaintiff in error, William Fish, received at the then head of the Central Railroad, from the agent of transportation on that road, certain packages of goods belonging to the defendants in error, Chapman & Ross, which by a special contract he promised to deliver in good order and condition at Macon, unavoidable accidents only excepted.In attempting to cross a stream his wagon was upset and the goods damaged.Chapman and Ross brought suit against him to recover the loss sustained by the injury done to the goods.A number of points are made in the assignment, and some of them of great practical importance in this community.They grow out of the construction which the Court below put upon the contract for the carrying of these goods above recited.I shall not consider each point separately, believing that all of them will be discussed and decided in those which I shall particularly notice.

The Court below decided that the plaintiff in error under his contract with Chapman & Ross was a common carrier, to which opinion he excepts.The evidence upon this point is the contract and nothing more.It does not appear that carrying was his habitual business; all that does appear from the record is, that he undertook upon a special contract, and upon this occasion, to haul on his own wagon for a compensation specified, the goods of the defendants from the then terminus of the Central Railroad to the city of Macon.Does such an undertaking make him a common carrier?That is the question, and we are inclined to answer it in [2.] the negative.A common carrier is one who undertakes to transport from place to place for hire, the goods of such persons as think fit to employ him.Such is a proprietor of wagons, barges, lighters, merchant ships, or other instruments for the public conveyance of goods.See Mr. Smith's able commentary on the case of Coggs vs. Bernard, 1 Smith Leading Cases, 172;Forward vs. Pittard, 1 T. R. 27;Morse vs. Slew, 2 Lev. 69;1 Vent. 190, 238;Rich vs. Kneeland, Cro. Jac. 330;Maving vs. Todd, 1 Stark, 72;Brook vs. Pickwick, 1 Bing. B. 218.Railway companies are common carriers.Palmer vs Grand Junction CanalCo., 4M.&W. R. 749.

"Common carriers (says Chancellor Kent,) undertake generally and for all people indifferently, to convey goods and deliver them at a place appointed, for hire, and with or without a special agreement as to price."2 Kent, 598.

"It is not (says Mr. Justice Story,) 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 an ordinary bailee for hire, that is to say, the responsibility of ordinary diligence.To bring a person under the description of a common carrier, he must exercise it as a publie employment; he must undertake to carry goods for prisons generally, and he must hold himself out as ready to engage in the transportation of goods for hire, as a business and not as a casual occupation "pro hac vice."Story on Bail, sec. 495.

A common carrier is bound to convey the goods of any person offering to pay his hire unless his carriage be already full, or the risk sought to be imposed upon him extraordinary, or unless the goods be of a sort which he cannot convey, or is not in the habit of conveying.Jackson vs. Rogers, 2 Show. 327;Riley vs. Horne, 5 Bing. R. 217;Lane vs. Cotton, 1 Ld.RayR. 646;Edwards vs. Sheratt, 1 East. R. 604;Batson vs. Donovan, 1 B. & A.R. 32; 2 Kent, 598;Elsee vs. Gatwood, 5 T. R. 143;1 Pick. R. 50;2 SumnerR. 221; Story on Bail, 322, 323; Dudley S. C. LawandEq. R. 159.

It will be seen hereafter we hold that according to the common law as of force in this country in 1776, a common carrier cannot vary or limit his liability by notice or special acceptance, and shall advert to this subject again.For the present we state the proposition broadly, that he is in the nature of an insurer of the goods entrusted to his care, and is responsible for every injury sustained by them occasioned by any means whatever, except only the act of God and the King's enemies.1 Inst. 89;Dale vs. Hall1 Wils. 281; Covington vs. Willan, Gow 115;Davis vs. Garrett, 6 Bing. 716; 2 Kent, 597;Coggs vs. Bernard, 2 Ld. Ray, 918;1T. R. 27;3 Esp. R. 127;5 Bing. R. 217.

It is from these definitions and from the two propositions stated, that we are to determine what constitutes a person a common carrier.I infer then that the business of carrying must be habitual and not casual.An occasional undertaking to carry goods will not make aperson a common carrier; if it did, then it is hard to determine who, in a planting and commercial community like ours, is not one; there are few planters in our own State owning a wagon and team, who do not occasionally contract to carry goods.It would be contrary to reason, and excessively burdensome, nay, enormously oppress ve, to subject a man to the responsibilities of a common carrier, who might once a year or oftener at long intervals, contract to haul goods from one point in the State to another.Such a rule would be exceedingly inconvenient to the whole community, for if established, it might become difficult in certain districts of our State to procure transportation.

The undertaking must be general...