Knox v. Rives, Battle & Co.

CHILTON, J. The defendants are sued as common carriers, to recover the value of a sealed package, containing $2,500 in bank bills, received on board the steamboat Montgomery, by the clerk thereof, to be carried from the city of Mobile to the city of Montgomery, and to be delivered to the plaintiff. The package was lost. 1. The plaintiff having proved that the boat was engaged in carrying goods and merchandize generally for hire, and the general custom of boats engaged in similar business as the Montgomery, in carrying letters containing remittances of bank bills, we think it was permissible for the defendants to explain that usage, by showing that no freight or compensation was ever charged, or allowed, upon such remittances, unless some evidence was giveu by the boat of their receipt, in which event only a charge was made; and further, to show that such was the uniform practice of defendants’ boat. If we allow the usage to be irrelevant, the proof of it was first introduced by the plaintiff, and in such case rebutting proof is allowed. See Havis v. Taylor, 13 Ala. Rep. 324; Findley v. Prewitt, 9 Porter, 195. 2. The questions raised upon the charges given and excepted to in the court below, are important, as affecting the liability of the owners of steamboats, and the authorities referred to have been carefully considered. The charges, the correctness of which is questioned by’the assignment of errors, are as follows: “ It does not follow that a common carrier, because he is said to be one who carries goods for hire, is to be considered a carrier of all kinds of goods. The/ just construction of the definition is, that the party is a com-V mon carrier only as to such character of goods as he undertakes to carry for hire, and is not a common carrier as to such } as he does not undertake to carry for hire. In the latter case; ^ the party would simply be a mandatory, or bailee.” The court further charged the jury, that the question for their de — 258 — termination was, “ do cash letters belong to that class or character of goods which the defendants undertake to carry for hire or reward. If they do, the plaintiff was entitled to recover, but if they do not, then the defendants were mandato-ries, or bailees, and not liable as common carriers.” It is insisted on the part of the plaintiff in error, that the charges denied him the right of recovery unless he had proved that the bills in question were carried for hire, or that the boat was accustomed to do so, whereas, having proved the boat a common carrier of goods generally for hire, and the receipt of those bills by the agent of the boat, to be carried to Montgomery, the law implies the liability for reward. The charge of the court must be construed in connection with, and as predicated upon, the proof in the cause. The proof was, that although it was the uniform custom of the boats to carry such packages, no charge had been made for such service, unless a receipt was demanded by the shipper, of the boat, for them, when a charge of one-fourth of one per cent, was made upon the amount of the bills. This charge had not however been made by defendants’ boat, and there was no evidence, other than the general usage which had long Obtained, that the defendants knew that such packages were' conveyed on their boat. Neither was there any evidence of a special undertaking on the part of the defendants in respect to this package; it was merely received, with a promise to deliver it at Montgomery, to the plaintiffs. Taken in connection with this proof, what are we to understand the charge to imply ? The court below had already settled, and we think properly too, that bank bills, by the common law, were regarded as “ goods,” and included in that designation, (Allen v. Sewall, 2 Wend. 339; s. c. 6 Wend. 335, opinion Walworth, chancellor; 12 Johns. Rep. 230; 11 Johns. R. 109,) and that the act of the clerk in receiving the package, was the act of the owners of the boat, if the jury believed the evidence on that point. There was no evidence of any express undertaking on the part of the owners of the boat to carry such letters for hire, or that they were excluded from the class of goods which their clerk was authorized to receive and transport, except the proof made as to the “ uniform custom” of boats to carry such letters, in — 259 — the manner above stated. Construing the charge as applicable to the facts in proof, we must intend the court submitted to the jury the question of fact, whether the package in question was to be transmitted with or without reward; or in other words, whether cash letters belonged to that class, or character of goods, which the boat undertook to carry for hire. That this charge would be improper under a different state of facts, as tending to mislead the jury, will not avail the plaintiff in error. Is it correct as an abstract proposition of law, and was it proper under the proof shown by the bill of exceptions ? If it was, we cannot reverse because it was general in its character, and did not embrace other features in the plaintiff’s case, upon which, notwithstanding the charge, he may have been entitled to recover. The rule is well settled in this court, that the omission of the court below, to instruct the jury upon all the legal questions presented by the proof in the cause, is not a ground for reversal of a judgment rendered on their verdict; it is enough if the charge is correct as a legal proposition, and is laid down in such manner as not necessarily to mislead the jury. See 1 Ala. Rep. 18; Ib. 607; 2 Ib. 694; 4 Ib. 493; 5 Ib. 421; 7 Ib. 10; 11 Ib. 935-40. If the opposing party desires the court to present to the jury the law ás applicable to any particular feature in the cause, he must do so by asking appropriate charges. The form of the charge, if the court was right in assuming that the defendants were not liable as common carriers, if the undertaking was gratuitous, we think more favorable to the plaintiff than the proof would warrant. The court, upon the hypothesis assumed, might well have instructed the jury, that if they believed the proof in respect to the uniform custom and usage of boats to charge no freight unless the shipper demanded a receipt for the package, that they should find for the defendants, for we take it to be the settled law, that where a custom or usage is proved to exist in relation to a particular trade or pursuit, if it be general or uniform, all persons engaged therein are presumed to contract in reference to such usage. This was expressly so ruled by this court in Sampson & Lindsay v. Gazzam, 6 Port. 123, and is sustained by numerous authorities. See Mills v. Bank U. S. 11 Wheat. 431; Doug Rep. 518; Story on Bail. — 260 — 9, § 14; Ib. 255, § 384, 2 Greenl. Ev- 207, § 251; Hosea v. McCrory, 12 Ala. R. 350. Such a general and uniform usage becomes silently adopted and incorporated into the contract, and forms a part of it, as though it had been expressed in it. Such being the law, it is most manifest the plaintiff has not, and could not have been injured by the charge. The shipper having taken no receipt for the package,- tacitly stipulates with the boat, that he will pay no freight, and there being nothing unreasonable or illegal in the usage, the law implies no obligation on the part of the shipper to pay; so that if the charge given referred to the jury in effect the legal question as to whether the boat could have recovered upon a quantum meruit, it but afforded the plaintiff another chance for success, of which fhe court should properly have deprived him, by deciding itself the legal question. We come now to the main question presented by the record, which is, whether the defendants are liable as common carriers for the package received on board their boat, to be transported, without reward, from Mobile to Montgomery; for we must regard the finding of the jury as affirming that the boat undertook to carry such package gratuitously. To my mind, it is a clear proposition of law, that the payment of freight on the part of the shipper, or the right of the carrier to sue for and recover the same, lies at the foundation of the defendants’ liability as common carriers. Lord Coke says, “he hath his hire, and thereby implicitly undertaketh the safe delivery of goods delivered to him.” Co. Lit. 89, a. A common carrier, says Judge Story, has been defined to be one who undertakes for hire or reward to transport the goods of such as choose to employ him, from place to place. Com. ,on Bail. 321, § 495. In the case of the Citizens Bank v. The Nantucket Steamboat Co., 2 Story’s Rep. 16-35, the same learned judge holds this language: “ I take it to be exceedingly clear, that no person is a common carrier in the sense of the law, who is not a carrier for hire ; that is, who does not receive, or is not entitled to receive, any compensation for his services. If no hire or recompense is payable ex debito jutitiae, but some-jthing is bestowed as a gratuity, or voluntary gift, then, al — 261 — though the party may transport persons or property, he is not a common carrier, but a mere mandatory.” I It is admitted that no contract to pay freight is necessary, meither is it necessary that the rate of compensation to be paid should be fixed, but the right to compensation must exist. If it does not exist, the defendants are mandatories, not common carriers. To hold that the law would devolve upon the defendants, with respect to such gratuitous accommodation, the liability of insurers, it seems to me, would be repugnant to the dictates of justice. 1 Pick. Rep. 50; Story Bail. § 495, 505; 1 Salk. 249; Allen v. Sewall, 2 Wend. R. 327; s. c. 6 Wend. R. 346. The views above expressed do not conflict with Hosea v. McCrory, 12 Ala. R. 349. In that case it was held, “that ordinarily, steamboats could not be required to take charge of cash letters, because the business of freighting does not include the transmission of money in that mode, but a general usage being shown on the part of the boat to carry such letters, the court held that usage might impose an additional liability on the owner. In that case the master, by virtue of the usage, was held liable for the package received by the clerk, the jury by their verdict having affirmed the usage fixing his liability, and the want of such diligence as the mandatory was bound to exercise. See also cases there referred to, p. 353. We have also been referred to the case of Aby v. Steamboat Paul Jones, decided by the commercial court of New Orleans. We have examined the case as we find it reported in the newspapers. The case is very analagous to the one before us. We readily agree, that if the carrier has the right to compensation, he cannot, by waiving that right in any particular case, evade the responsibility which the law attaches, and that if he receives goods to be carried gratuitously, he is bound to exercise ordinary care and diligence in respect to them; but if the court, in that case, intended to affirm that the boat was liable as a common carrier, notwithstanding the implied contract resulting from the uniform usage of boats — 262 — engaged in the same trade, to carry the package free of charge, we think the conclusion attained opposed to the current of the authorities. The decision is made to turn upon th©| ground of public policy. Now if the general usage of carriers is to transport such packages free of all charge unless the shipper takes a receipt, in which case alone freight is considered as due, and this usage is so general as that the shipper of the package is charged with a knowledge of it, it seems to me, no principle of public policy demands that the courts should refuse to execute the contract thus tacitly entered into between the parties, and affix to the carrier the rigorous liabilities of the common law, when he contracted to exercise without reward therefor, the diligence and care of a gratuitous bailee. Let the shipper demand his receipt, and then he may insist, that nothing but the act of God, or the public enemy, can discharge the carrier from responsibility. Having failed to do this, we regard him as contracting for the ordinary diligence of a mandatory. We do not understand Mr. Jeremy, in his-work on carriers, to lay down a different doctrine. v True, he considers the obligation of the carrier arises more out of a public duty than the consideration to be paid, (p. 5,) but he says, the carrier, in the absence of an agreement to pay freight, may recover what is reasonable, hence he cannot set up the want of such agreement, which the law supplies, to avoid the common law responsibility. Ib. Indeed, he holds that the real ground of contract is founded on a reward, or consideration propor-tionable to the risk and duty to be performed. Page 55, ch. .5, § 1. See also, Gibbon v. Paynton, 4 Burr. 2299, and cases there cited. Also, 6 Hill’s Rep. 157. The fact that the usage may have originated in a belief on the part of the owners of boats, that their custom and consequent receipts would be enhanced by the gratuitous transportation of such packages, does not, in our opinion, vary their liability. The proof shows such letters were received indiscriminately, and indifferently from all persons, as well from those who were patrons of the boat as from those — 263 — who were not. Such consideration-would be too vague, indefinite and remote, to form the basis of such extraordinary liability. In our opinion, there is no error in the record, and the judgment of the circuit court is affirmed.