Holtzclaw v. Duff

• Decision Date: 31 October 1858
• Citation: 27 Mo. 392
• Parties: HOLTZCLAW et al., Defendants in Error, v. DUFF et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

27 Mo. 392

HOLTZCLAW et al., Defendants in Error,

v.DUFF et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1858.

1. The liability of warehousemen and forwarding agents is different from that of common carriers; they are responsible only for losses occasioned by their fault or negligence.

Error to Hannibal Court of Common Pleas.

The facts sufficiently appear in the opinion of the court.

Lamb & Lakenan, for plaintiffs in error.

I. From the plaintiffs' own testimony defendants were only shown to be carriers of persons and property on the Hannibal and St. Joseph Railroad. They carried upon no other thoroughfare. They were not in the habit of shipping their freight on board of steamboats or of storing it at Hannibal. Defendants were not common carriers. They were not responsible as common carriers for loss in question. They transported the hemp safely to Hannibal. (See Story on Bail. §§546, 446; 4 Term R. 581.) The defendants had a right to exempt themselves from liability as common carriers. They did so by giving notice. (13 Barb. 353; Sto. on Bail. §549; 2 Kent, Comm. 605; 2 Camp. 415; 3 B. & C. 606; 6 How. 382; 2 Comst. 204.)

Dryden, for defendants in error.

I. A carrier cannot limit his common law liability by the publication of a notice such as is relied on in this case. (6 How. 382; Sto. on Bail. §§570, 571; see 2 Hill, 623; 19 Wend. 240; 19 Wend. 272.)

RICHARDSON, Judge, delivered the opinion of the court.

The defendants were the contractors for the construction of the Hannibal and St. Joseph Railroad, and used so much of the road as was finished in running cars for transporting materials for the work and in carrying passengers and freight for compensation. They caused notices to be published and posted at the stations on the line of the road--which were seen by the plaintiffs before they made the shipments that led to this controversy--to the effect that they proposed, for the convenience of citizens along the road, to transport persons, and the articles of merchandise therein named, upon certain conditions, which should become a part of all contracts for transporting persons and property, to-wit: 1st, that they did not assume the position of common carriers, and would not be subject to any responsibility as such; 2d, that they would not be responsible for any loss or injury which might result from accidents to the trains, detention, exposure to the weather, or any other cause; 3d, that the owner must receive his goods on the arrival of the cars at the place of delivery; and, 4th, that, as store-houses had not been provided at the stations on the road, they could not take care of property after its arrival at the place of destination, and, therefore, reserved the right, in case the owner should not be present to receive his property, to store it, subject to the charges for transportation, at the owner's risk, and cost for drayage and storage. On the 1st and 2d September, 1856, the plaintiffs delivered to the defendants, at the Palmyra dépôt, two lots of hemp, in good order, which they agreed, in consideration of a reasonable reward to be paid by the plaintiffs, to carry safely to the Mississippi river (at Hannibal), and there to be safely delivered on board of a steamboat, for the purpose of being carried to St. Louis. When the hemp arrived at Hannibal, it was removed from the cars and deposited on the levee, in front of the steamboat landing, and, whilst lying there awaiting a boat, being insufficiently protected, was injured by rain. The defendants had no warehouse at Hannibal, for storing freight, except a building fifteen by forty feet, which was sometimes used for that purpose; but a portion of it was occupied as a machine shop, in which a steam engine was in operation. It appeared, however, that there were warehouses in Hannibal, owned by different commission merchants, sufficient to have stored the hemp, distant four or five hundred yards from the terminus of the road. The court instructed the jury that the defendants were common carriers; that they could not limit their common law liability as such by a general notice to the...