Majority
p. 497Platt and Dimick against Hibbard and Webb. ALBANY, Oct. 1827.
Headnote
One who receives goods, for reward, into hi~ store, though standing upon a wharf, the goods to remain there for the purpose of being forwarded, subject to the baior's order, is liable merely as a warehouse man: not as a common carrier or wharfinger: and he is bound to exercise no more than ordinary care in preserving the goods.Semble, that a wharfinger is bound only to the- same degree of care as a warehouse man; and is not liable to the same extent as a common carrier.
Public store-keepers, receiving and storing goods, for hire, are not liableto the same extent as common carriers; nor are they bound to take better care of the goods, than aprudent man would ordinarily take of his own property.
Semble, that where goods so received are, of themselves, well secured, the mere circumstance of receiving goods of another sort into the same store, which invite thieves into the store, who set it on fire and consume the former goods, will not make the bailee liable, unless the receipt of the latter goods will probably produce such a consequence.
Semble, that where goods are so destroyed, the bailee is prima facie liable, on the bailor showing the loss or destruction of the goods; and it lies with the bailee to show they were not lost in consequence of the want of ordinary care on his part But, guere; vid. note (a) to this case.
The standard by which ordinary diligence, in a bailee, is to be tested. Per Walworth, 0. Judge, in his charge to the jury.
The difference in extent between the liability of a common carrier, and innkeepers and other bailees for reward; and what is meant by the words “ the act of God." Per.Walworth, 0. Judge, in his charge to the jury.
OASE; tried at the Olinton circuit, January, 1827, before WADwoRTU, 0. Judge.
*The declaration contained a count in trover, and three special counts; one charging the defendants, as common carriers; and that as such, they received certain pot-ashes and corn to be transported to St. Johns; another, as storing and forwarding merchants, receiving the goods to be stored and forwarded; and another, as keepers of a public store-house, and as receiving the goods to be safely kept and stored.
p. 498
On the trial, the defendants admitted that they received of the plaintiffs, at the defendant’s store-house in Champlain, which stood on the defendant’s wharf, on the lake, certain pot-ashes, in seven different parcels of three barrels each, from the 6th of July to the 3d of August, 1824. The delivery of the corn at the same place was proved. It appeared that the ashes were left in these quantities till enough should accumulate there to send to the Canada market at St. Johns, by water, on lake Champlain. On the 3d of August, one of the defendants told one of the plaintiffs, that he (the defendant) thought he could send the ashes to market in a day or two. But on the following night the store was entered by thieves and incendiaries, who set it on fire; and it was consumed with the pot-ashes, and corn, and various articles in store for others. It farther appeared that the defendants were then, and had been for several years, engaged there in the storing and forwarding business. They forwarded little or none by their own boat; but principally, if not wholly, by other boats which offered. The store in question was well secured. But no person slept in it. The same day on the evening of which the fire took place, about 3000 dollars worth of silk goods were landed at the storehouse from the steamboat, and stored there. Other dry goods were previously in store there. The defendants charged wharfage on ashes shipped at their wharf, whether stored or not. In 1824, the steamboat did the principal carrying from their wharf. The defendants had, in that year, previous to the fire, forwarded thence for the plaintiffs various articles of produce, a part in the boat of a third person, on which they had paid the freight, and charged it to the plaintiffs with commission on the freight.
*The plaintiffs’ counsel insisted that public storekeepers, receiving and storing goods as such for hire and reward, are, by law, liable to the same extent as common carriers; or if not, that they are bound to take better care than a prudent man would ordinarily take of his own property. Or, in another view; if common prudence required the defendants to guard the store more securely, or cause some person to sleep in it, and in such case the loss would not
p. 499
have happened; or if the loss was occasioned by the defendant’s mingling other property with that in question, which required it to be better guarded or secured, and for lack of such better care the whole was destroyed; or if the loss happened for want of due care and diligence; that in either case the defendants were liable. And the plaintiff s’ counsel requested the judge to charge the jury according to these several views of the case.
The judge told the jury, that common carriers are liable in all cases of loss or destruction of the property which they carry, unless such loss or destruction be occasioned by the public enemies of the country, or the act of Grod, which last meant a destruction by lighting, or some other accident which no human foresight or prudence could guard against.[3] That if the goods in question were, at the time of the loss, in the defendants’ hands as common carriers, to be transported for freight, there could be no doubt of their liability. They were not, however, received by the defendants as common carriers; but as the keepers of a public store-house; to be kept till orders should be given to send to Canada. That if the defendants were expected to transport the goods in their own boat, of which there was no evidence; yet their risk as common carriers had not commenced at the time of the loss; the goods being in the store-house awaiting the plaintiffs’ orders.
That storing and forwarding merchants and wharfingers, who do not undertake to transport the property themselves, and do not receive a profit on account of the transportation, are not liable to the same extent as inn-keepers and common carriers.
Tet in all cases of bailment of property to a person who carries on a public business of receiving it into his custody, under his care for reward, it is necessary that a strict rule should be enforced against the bailee, to prevent fraud. Hence, when property entrusted to a warehouse-man, wharfinger, or storing and forwarding merchant, in the ordinary
p. 500
/course of business, is lost, injured or destroyed, the weight of proof is with the bailee, to show a want of fault or, negligence on his pan; or, in other words, to show the injury did not happen in consequence of his neglect to use all that care and diligence on his part, that a prudent or careful man would exercise in relation to his own property.[3] He is bound to guard against all probable danger; the common carrier against all possible danger; arid there is no middle line or degree of vigilance between these two. That the question of negligence- was for the jury; and perhaps no better way of determining* it could be adopted, than to inquire whether a prudent man, owning the property in question, would, with a full knowledge of all the facts, have entrusted it in the store-house, as this was left. If so, the defendants were not liable; otherwise they were.
That their liability did not' depend on the question, whether a prudent owner of the silks and other dry goods, would have left them in the store-house exposed to thieves and without a guard. If there had been negligence in re
p. 501
gard to these, the defendants might be answerable to the owner, unless he had agreed to leave them there at his own risk. On this branch of the case the question was, whether the potash and corn were in probable danger from being left with the silks.
The jury found for the defendants.
J. A. Collier, for the plaintiffs,
now moved for a new trial. He did not insist much on the positions taken by the plaintiffs’ counsel at the trial. But he contended that the defendants were to be considered in the light of wharfingers, who stand by the common law, on the same footing, as to liability, with common carriers. (Maving v. Todd, 1 Stark. Rep. 72; 5 Burr. 2827; Isaack v. Clerk, Moor. 841; 2 Stark. Ev. 337, Metcalf’s ed.; Wheat. Selw. 301.) The counsel also referred to Wilson’s specimen of codification of the law of carriers in South Carolina, (Pamphlet, p. 37, c. 1, s. 4,) which gives the common law of England, as understood in that state. That the defendants came within the definition of wharfingers, he referred to Jac. L. Diet. tit. Wharfingers.
He admitted that Roberts v. Turner, ( 12 John. 232 ,) was against the position taken at the trial, that a public storer of goods, for reward and for the purpose of forwarding them, is liable to the same extent as a common carrier.
P. Gansevoort & H. Bleecker, contra,
insisted that the law of the case was truly given in the charge of the judge. That he was fully supported by the authorities in his rules of responsibility, both as to storing and forwarding merchants and ^wharfingers. ( 12 John. 232 ; 2 Stark. Rep. 461; 8 Taunt. 443; 2 Esp. Dig. Gould’s ed. 252; 2 Com. on Contr. 342; 4 Esp. Rep. 262; 19 John. 44 ; Peak. N. P. Cas. 114; 4 T. R. 581.) They said there is no distinction, in reason, between the case of a storing and forwarding merchant, and a wharfinger. Neither is like a common carrier, who is bound to more than ordinary diligence, upon grounds of policy applicable to him alone. The authority cited from 1 Starkie’s Rep. 72, is a mere nisi prius dictum
p. 502
of Lord Ellenborough, going beyond the case before him1 and what Lord Mansfield said in 5 Burr. 2827, was evidently meant of one who engages in the double character of wharfinger and common carrier.
But suppose both to stand on the same footing of liability; we deny that the defendants could be considered wharfingers in respect to the goods in question. They were not acting in that character. The store stood upon their wharf, it is true; but this does not determine the question. The goods were not subject to the duty of wharfage till removed from the store, and placed on the wharf in a course of transportation. The plaintiffs were liable for the mere storage duty; and the defendants should be bound to nothing more than a corresponding liability on their part.
Collier, in reply.
True, it is difficult to assign a good reason why a'wharfinger should be liable as a common carrier. But the doctrine seems to be settled by the authorities.[3] It is equally difficult to show upon principle why an inn-keeper should be liable without negligence. Yet such is the settled law.
But there is another difficulty in this case. Though the defendants had a wharf, it does not necessarily follow that they were wharfingers in respect to the goods in question. They had a store upon the wharf
p. 504
*in which the goods were deposited, not as a wharf, but a store. It seems to me the defendants are to be considered as warehousemen. Ho duty as wharfingers had attached ■ to them.]
p. 505
*[Woodworth, J. It cannot be that these defendants were liable as wharfingers; and it, therefore, becomes unnecessary to consider the distinction which you urge. Your argument goes to make every storing and forwarding *merchant in our cities wharfingers. It certainly can make no difference in principle, whether they receive goods into a store which happens to stand upon a wharf, or in the body of the city.]
[Savage, Ch. J. The attempt to fix the defendants in the particular character of wharfingers, as distinguished from warehousemen was not made at the trial; and there does not appear to be any count in the declaration charging them in that character.]
p. 506
IN THE SUPREME COURT Collier. We suppose the count against them as common - carriers sufficient to reach them as wharfingers; provided we show that the latter stand on the
same ground with the former. The Court were clear, that a case of wharfingers
was not made out; and Sutherland, J., said, if that case had been made out, he could see no reason for making the defendants liable as common carriers. He declined, however,
to decide this question; and The Court agreed in considering the case as one of ware- housemen, who are not liable
if they exercise