Walker v. Skipwith

• Decision Date: 31 December 1838
• Citation: 19 Tenn. 502
• Parties: WALKER v. SKIPWITH.
• Court: Tennessee Supreme Court

19 Tenn. 502

WALKER

v.SKIPWITH.

Supreme Court of Tennessee.

December Term, 1838.

In an action on the case, commenced on the 11th of April, 1836, in Maury Circuit Court, by Peyton H. Skip. with against James Walker, the plaintiff declared that, whereas the defendant, on the day of February, 1835, was, and long before had, and since hath been, a common carrier of goods, chattels, persons, and baggage, by a certain common stage-coach or carriage, going and passing from the city of Nashville to the town of Columbia; and by himself and servants hath been used and accustomed to carry the goods and chattel of all persons whatsoever requiring the carriage thereof from said city of Nashville to the town of Columbia, and also from the latter to the former, for certain hire or reward, to be therefor paid to the defendant; and the said defendant, so being such common carrier, on the day of February, 1835, at the city of Nashville, in consideration that the said plaintiff, at the special instance and request of the defendant, had delivered to the defendant a certain quantity of goods and chattels, to wit, one steel-mixed frock-coat of the value of $40, one box of cigars of the value of $--, and one pistol of the value of $18, to be safely and securely carried by the defendant from the city of Nashville to Columbia, for a reasonable reward therefor, paid to the defendant for the carriage thereof, he, the said defendant, undertook and promised the plaintiff, safely and securely to carry and convey the aforesaid goods and chattels from Nashville to Columbia: and although the defendant then and there received the said goods to be conveyed and carried as aforesaid, yet, not regarding, &c., did not safely and securely carry and convey the said goods and chattels from Nashville to Columbia, but so carelessly and negligently and improvidently behaved himself in and about the carriage thereof, and took so little and such bad care thereof, that by and through the mere neglect and default of the defendant, and his servants by him employed in and about the carriage thereof, the said goods were wholly lost, &c.

The defendant pleaded not guilty, and issue was thereupon joined. On the trial, at January term, 1838, before his Honor Judge Dillahunty and a jury of Maury, the plaintiff proved by Orange Swan that, in the month of February, 1835, he put the articles described in the declaration in a box, which box he delivered at the bar of the City Hotel in Nashville to Mr. Lyle, who was then acting there as barkeeper, and also, as he had reason to suppose, as stage agent, with directions to forward it by the mailstage to Skipwith at Columbia; that he paid Lyle fifty cents for the transportation of the box; that Lyle said he would have the box entered on the way-bill; that Lyle did not then, or at any previous time, tell him that the contractors would not be liable for any baggage unless under the charge of passengers; but that he did tell him so repeatedly after he knew that the box had been lost; and that at the time when Lyle told him that the box had been lost, he also admitted that he had not notified him of said rule of the contractors. The plaintiff also proved that Lyle was, at the time in question, stage agent for Walker at his office at the City Hotel.

The defendant proved that it had been one of the rules and regulations of the line, and that Lyle and all his other agents at his office in Nashville had been instructed that no package or parcel of any kind should be sent on the stage unless it constituted a part of the baggage of a passenger, or was under the care of a passenger, except at the risk of the owner or person sending such package or article. Lyle swore that he had been so instructed, and, in consequence, had written a bill to that effect, and put it up at the bar. He also swore that when Swan brought the box he notified him of this rule, but Swan said that Skipwith had directed him to send it by the first stage, and it would have to go at his risk; that Swan offered him fifty cents for the transportation of the package, and requested that it should be entered upon the way-bill, but that he refused to receive the money or to enter the package; that Swan then called to the bar-room servant to put the box upon the stage the next morning, which was done, as both the servant and the driver informed the witness. This was substantially the testimony submitted to the jury.

His Honor instructed the jury that a common carrier was a person who carried goods, &c., indifferently for all persons for hire; that if a man undertook for hire to carry goods from one point to another, either by land or water he would be held liable as a common carrier; that a common carrier was liable for all losses or damages, except for those which happened by the act of God or the public enemies of the country; that if the defendant was in the habit of carrying goods for hire in his stages under any special limitation or restriction as to his liability, notice thereof must be fixed upon the plaintiff or his agent at the time the goods were received, or else the defendant would be liable as a common carrier; that no private instruction of the employer to his general agent would be binding on the plaintiff, unless he or his agent were notified thereof; that if Lyle was a special agent of the defendant, having power to receive passage-money from persons who travelled in the stage and nothing further, defendant would not be liable for goods received by him. for it was a principle of law that a special agent could not bind his principal by any act beyond the scope of his authority.

The jury found for the plaintiff, and assessed his damages at $58.75. The defendant moved for a new trial, which was refused, and the Court gave judgment upon the verdict, from which the defendant appealed in error.

Pillow and Cook, for the plaintiff in error.

Cahal, for the defendant in error, said: The points raised by this record are, 1st, as to Walker's liability as a common carrier; 2d, as to his right to have a general agent in his employment, with secret instructions unknown to those with whom he transacted the business of his principal; and 3d, the notice necessary to limit the ordinary responsibility of a carrier. As to what persons come under the denomination of common carriers, see 2 Kent, 598; 1 Saund. Pl. 320; Chit. on Con. 149; Comyns on Con. 294; Story on Bail, 322.

As to their liabilities, see 1 Stark, 202; 2 Kent, 597, 600-602; 2 Comyns on Con. 291-293; Story, Bail. 317, 324, 325; Jeremy's Law of Car. 11, 12, 24; 10 Johns. 1;11 Johns. 107. In Tennessee, Peck, 260, and Turney v. Wilson, 7 Yer, 340.

1. Whether Walker was a common carrier in the common-law definition of the term,...