Levering v. Union Transp. & Ins. Co.
| Decision Date | 31 October 1867 |
| Citation | 42 Mo. 88 |
| Parties | LEVERING et al., Appellants, v. UNION TRANSPORTATION AND INSURANCE CO., Respondent. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
The following instructions, asked for by defendant, were refused, viz:
2. If the jury believe from the evidence that the cotton in controversy was shipped under the bill of lading read in evidence, then the plaintiffs were bound by the conditions expressed in said bill of lading, and cannot recover unless they prove affirmatively, to the satisfaction of the jury, that the loss occurred through the gross negligence of the defendant or its agents.
3. If the jury shall find that the defendant received the cotton in question, to be forwarded by defendant over railroads owned by other parties and companies, and that the plaintiffs knew the manner in which the said cotton was to be forwarded, then the defendant is not liable as an insurer, and can only be held liable for gross negligence.
4. If the jury believe from the evidence that the cotton in question was, while in the possession of the defendant, lost or destroyed by fire, then the plaintiffs are not entitled to recover.
5. If the jury believe from the evidence that the cotton in question was lost by fire, then the defendant is not liable in this suit, unless the plaintiffs have proven to the satisfaction of the jury that the loss was occasioned by the negligence of the defendant.
6. There is no evidence in this case that the cotton in question was lost or destroyed by the negligence or carelessness of the defendant or its agents.
The following instruction was given by the court, of its own motion:
If the cotton in question was lost by fire, while in defendant's possession, on a railroad train, then the defendant is not liable, if the persons in charge of the train took all reasonable care and observed all reasonable precaution in the management and conduct of the train, and if the car in which the cotton was burned was reasonably tight and suitable for the transportation of such freight.
Hunton, Moss & Sherzer, for appellants.
I. Though a common carrier, as to certain excepted risks in his bill of lading, may limit his common law liability, he is still held, in respect to those risks, to the exercise of due diligence and care: his contract does not extend to exemption from liability for negligence. In this respect his common law liability still exists.
II. The court decided aright on the burden of proof. See case cited. (2 Green. Ev. § 219; Whitesides v. Russell, 8 Watts & Serg. 49; 2 Ohio S. R. 141-2; Slocum v. Fairchild, 7 Hill, N. Y., 296-7.)
III. Plaintiffs' second instruction should have been given--the bill of lading in land transportation being merely a receipt, and not binding as a contract upon plaintiffs unless signed by them or expressly agreed to. .)
In any event, it was no express agreement as to its conditions, the common carrier not being able so to limit his common law liability. (Gould v. Hill, 2 Hill, N. Y., 623; Cole v. Godwin et al., 19 Wend. 251-262; Fish v. Chapman et al., 2 Kelley, Geo., 358.) It is only by express agreement that this liability can be controlled. (Hallister v. Hollen, 19 Wend. 234; Cole v. Goodwin et al., 19 Wend. 251; Fish v. Chapman et al., 2 Kelley, Geo., 358; N. J. Trans. Co. v. The Merchants' Bank, 6 How. 366; Gould v. Hill, 2 Hill, N. Y., 623; Camden & Amboy Trans. Co. v. Belknap, 21 Wend. 355; 3 Hill, 9-20; 10 Met. 472.)
Knox, and Smith & Knight, for respondent.
I. The Union Transportation Company had a right to contract against liabilities occurring from “loss by fire.”
II. The appellants, having alleged in their petition a loss not within any of the excepted perils, were not entitled to a verdict if the jury found the loss to have been occasioned “by fire.”
This suit was brought by plaintiffs to recover the value of twenty-six bales of cotton, which defendant had received to transport from East St. Louis to New York. The cotton was destroyed by fire in the course of its transit, in one of defendant's railway cars. At the time the cotton was delivered to defendant, it gave a receipt for the same, in the nature of a bill of lading, which had stamped across its face the words, “At owners' risk of fire,” and also a like reservation in regard to loss by fire inserted in one of the conditions embodied in the instrument.
The plaintiffs claim damages to the amount of the value of the cotton, and allege that the loss was occasioned by the negligence and carelessness of the defendant in failing to furnish suitable cars for its transportation. The jury, acting under instructions of the court, found a verdict for the defendant, on which judgment was rendered. There is nothing in the evidence requiring comment; and if the law was correctly and properly declared, there is nothing to justify an interference. The plaintiffs were not bound to show negligence on the part of the carrier, in the first instance. All that is necessary to charge a carrier is to prove the delivery of the thing to him to be carried, and the burden of accounting for it is thrown upon him; and if he wishes to exonerate himself from liability, he must either show the safe delivery of the goods, or prove that the loss occurred by one of the causes excepted in his undertaking. (Tumey v. Wilson, 7 Yerger, 340; Berry v. Cooper, 28 Geo. 543; Cameron v. Rich, 4 Strob. 168.) It is universally admitted that the carrier is always liable for injuries resulting from his own negligence, which will include defects in the means of transportation provided by him; and his liabilities will extend to agencies which the violence of nature causes in consequence of his negligence or defective means. In general, he has been held to be an insurer of the safety of the goods intrusted to his care, and can only be exempted from perils occasioned by the act of God and the public enemy. For a long time it was denied by most respectable and eminent authorities that a carrier could release himself from the stringent responsibility imposed upon him by the common law, or destroy the character of insurer which he held toward the person employing him either by notice or contract. But the opinion now seems to prevail that he may stipulate for a limitation of his responsibility. (Parsons v. Monteith, 13 Barb. 353; Moore v. Evans, 14 id. 524; Dorr v. The New Jersey Steam Nav. Co., 11 N. Y. 486; New Jersey Steam Nav. Co. v. The Merchants' Bank, 6 How. 382; York Company v. Central Railroad, 3 Wallace, 107; Camden v. Beelduff, 16 Penn. St. 67; Davidson v. Graham, 2 Ohio St. 131; Western Transportation Co. v. Newhall, 29 Ill. 466.) But although he may thus restrict his liability, so far as he is an insurer against losses by mistake or accident, he cannot exempt himself from losses caused by a neglect of that degree of negligence which the law casts upon him in his character of bailee.
As the exception is an innovation on the principles of law, and introduced exclusively for the benefit of the carrier, the construction must be made most strongly against him.
In Atwood v. Reliance Transportation Co., 9 Watts, 88, in relation to the restriction in a contract by a carrier, Mr. Chief Justice Gibson said: “Though it is, perhaps, too late to say that a carrier may not accept his charge on special terms, it is not too late to say that the policy which dictated the rule of the common law requires that exceptions to it be strictly interpreted, and that it is his duty to bring his case strictly within them;” and the authorities are all to the same effect. The peculiar duty and high responsibility which has been imposed upon the common carrier arises from the public character of his employment, the extensive control he exercises over the property of others, and the facilities which he usually has for securing impunity for an abuse of his trust. (2 Kent's Com. 597.) It is the imperative duty of a common carrier to receive whatsoever goods are offered to him for transportation in the usual course of his employment, and he takes them with all the responsibilities attached by law to his calling or employment. He cannot vary his liability by inserting conditions in his acceptance of goods; but to have this effect of exonerating him, there must be a special contract assented to by the shipper.
The argument in favor of the right of the carrier to vary his liability, by introducing conditions into his acceptance, is...
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