Wolf v. American Express Co.

• Decision Date: 31 March 1869
• Parties: LOUIS WOLF, Respondent, v. THE AMERICAN EXPRESS COMPANY, Appellant.
• Court: Missouri Supreme Court

43 Mo. 421

LOUIS WOLF, Respondent,

v.THE AMERICAN EXPRESS COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

At the trial the court gave the following instructions, on motion of plaintiff:

“The term ‘act of God,’ in law, means a cause which operates without any aid or interference from man; for if the cause which produced or occasioned the injury became destructive by human agency or co-operation, then the loss is to be ascribed to man, and not to God.”

“And if the jury believe from the evidenee that the wine in question was damaged after it was received by the defendant, and before it was delivered to the plaintiff, then the jury must find for the plaintiff--unless they further find from the evidence that the ‘act of God’ was the immediate and sole cause of such damage, and that the defendant was not guilty of any carelessness, negligence, or fault which conduced to the damage.”

“The burden of proving that the injury complained of (if any happened) was caused by the ‘act of God’ rests upon the defendant in the first instance.”

“If the jury believe from the evidence that, after defendant received the wine in question, and before the same was delivered to the plaintiff, the defendant permitted said wine carelessly to lay exposed in the weather, and thereby the same was frozen and spoiled, they will find for the plaintiff-- unless the jury further find that the defendant was prevented from taking proper care of said wine by the ‘act of God.”

To the giving of which, defendant at the time excepted.

On motion of defendant, the court gave the following instructions:

“If the jury believe from the evidence that the wine of plaintiff was damaged by reason of the sudden and extreme change of weather, and without any carelessness or negligence on the part of defendant, its agents, servants, or employees, they will find for defendant.”

“The common carrier is not liable for injury to property in its charge which is occasioned by the ‘act of God;’ and extreme cold weather is such an act. If, then, the jury believe from the evidence that the injury complained of was by reason of the severe cold, and that the carrier could not, by the exercise of the greatest care and foresight which its agents or employees could have exercised under the circumstances, prevent the accident, then the jury will find for the defendant.”

A statement of the case will be found in the opinion of the court.

Knox & Smith, for appellant.

The wine was unquestionably damaged by reason of the extreme cold. This is the direct act of God, over which man has no control. For such damage the carrier is not liable. (Sto. Bailm. §§ 492, 510 et seq.; Edw. Bailm. pp. 168, 456, 457; 40 Mo. 491 et seq.) The wine was destroyed by no human agency. The whole injury was the result of storm and cold. For such injury the carrier is not liable.

Jecko & Hospes, and Clover, for respondent.

I. The carrier is bound to take all possible care of goods consigned to his charge as such, and is responsible for every injury which might have been prevented by human foresight and prudence. This has been the rule of the common law for ages. (Woodrefe v. Curtis, 1 Rol. Abr. 2; Co. Litt. 89, a.)

II. The only exceptions to the responsibility above aeclared are acts of God or the public enemy, and then excepted in the contract of affreightment itself. 1. The damage done was not the result of any cause excepted in the contract of affreightment. 2. It was not the act of the public enemy. 3. It was not the act of God. The phrase “the act of God” has been said to mean the same thing as “inevitable (or unavoidable) accident.” But this is a mistake. The rule is intended to hold the common carrier responsible, wherever it was possible that he caused the loss either by negligence or design. Hence, “the act of God” means some act in which neither the carrier himself nor any other man had any direct and immediate agency. Lord Mansfield, in Proprietors of Trent and Mersey Navigation Co. v. Wood (3 Esp. 131; 4 Doug. 290), says: “The act of God is a natural necessity, as winds and storms which arise from natural causes, and is distinct from inevitable accident. (3 Kent, 213; Steamboat Lynx v. King & Fisher, 12 Mo. 275; McArthur v. Sears, 21 Wend. 190; Jeremy on Carriage, 59; Bowman v. A. T. & E. M. Teall, 23 Wend. 306.)”

WAGNER, Judge, delivered the opinion of the court.

This was an action commenced by the plaintiff to recover damages sustained by reason of the freezing of his wine while in the charge and custody of the defendant. The facts are shortly these: The plaintiff delivered at New York, to defendant, a common carrier, a quantity of wine in casks and cases, to be transported and delivered to him at St. Louis. The wine arrived at East St. Louis on Saturday, the 31st day of December, 1863. At the time of its arrival the weather was severely cold, and, on account of the ice floating in the river, it could not be ferried across and delivered to the plaintiff. Defendant had it taken from the cars and stored on a platform, where it was exposed to all the severity and inclemency of the weather from Saturday evening till the next Monday or Tuesday, and while it was lying in this situation it was badly frozen and greatly damaged in value. It is in evidence that wine properly stored or protected...