Steele v. McTyer's Adm'r

WALKER, J. — In the argument of appellants’ counsel no defect in the declaration is pointed out, and none has been detected by us. We decide, therefore, that there was no error in the failure to visit upon the declaration the demurrer to the defendants’ plea. That one of the defendants, after the disaster to the boat, offered, under the circumstances stated, to pay two dollars per bale for the services of a steamboat in saving and freighting the cotton to Mobile, vras not evidence, for the exclusion of which the appellants can complain, and there was no error in rejecting such evidence. The court permitted the defendants to prove, thatinstruc674 tions were given by one of the o-wners, to the master of the boat, that he should not take on board any cotton until he got to Lockett’s landing, a point below that at which the plaintiff’s cotton was received; and it was then proposed to show, that, in the same conversation, the master was informed, that a load was engaged at Lockett’s landing, and at points below on the river, and that that was the reason why it was desired he should receive no - cotton above Lockett’s landing. This latter proof the court properly rejected; for, conceding that it was competent to prove the previous engagement of a load at and below Lockett’s landing, it was- not permissible to make the proof by the introduction of the defendants’ declarations. If the defendants had a right to give in evidence the instructions to the master of-the boat, it was not permissible for them to make that a pretext by which to obtain the benefit of declarations as to facts made at the same time. The American decisions are conflicting as to what constitutes a common carrier. We have examined those, as well as many English cases; and, without reviewing them, we announce our conclusions. If the appellants built or procured a flat-boat, with which to carry cotton down the Cahaba river, and thence to Mobile, though only for a single trip, and held themselves out as ready and willing to carry cotton on their boat for the people generally who wished to send their cotton to Mobile, then they would be common carriers, and those who placed cotton upon the boat could not be affected by any private instructions, which might have been given to the master of the boat, as to the point on the river above which he was to take on no cotton. On the contrary, if the appellants did not hold themselves out as ready and willing to carry cotton for the public generally, to the extent of a proper load for the boat; or, in other words, did not constitute themselves the servants of the public in that business, but only proposed to take the cotton of some particular persons, with whom engagements were made, they were not common carriers. If the appellants, having engaged a part of the loading for the boat, held themselves [675] out as ready to carry for any person or persons to the extent of the remaining capacity of the boat, then they would be liable as common carriers to such persons as availed themselves of such offer of their services to the public generally as carriers. These questions, under the proof, should have been left to the jury, and the court erred in not giving the third and sixth charges asked. We cite the authorities bearing on this branch of the case: 1 Parsons on Contracts, 639; Dwight v. Brewster, 1 Pick. 50; Robinson v. Dunmore, 3 B. & P. 417; Edwards on Bailments, 425-432; Satterlee v. Groat, 1 Wend. 272; Jackson’s case, 1 Haywood, 14; 2 Kent’s Com. 598-599; Gisbourn v. Hurst, 1 Salkeld, 249; Ward v. Green, 6 Cow. 173 ; Johnson v. Midland Railway Co., 4 Ex. 367; Campbell v. Morse, Harper’s Law R. 468; Samms v. Stewart & McKibben, 20 Ohio, 69; Notes to Coggs v. Bernard, 1 Smith’s L. C. 82; Fish v. Chapman, 2 Kelly, 349; Lane v. Cotten, 12 Mod. 472; Angell on Carriers, 71-76. The evidence that the defendants had been, in former years, engaged for the public generally in the transportation of cotton to Mobile on flat-boats, would be proper for the consideration of the jury in determining the question, whether they were common carriers; but it would not necessarily be conclusive. It might be that, notwithstanding they had previously acted as common carriers, they had abandoned the service of the public, and were simply engaged in the execution of special contracts. To constitute them common carriers, they must be engaged in the service of the public. The wreck of the boat, upon the log described in the evidence, would not be a loss from the “ act of God.” Certainly it may have been, in some sense, by the act of God that the tree was thrown from its. erect position, and became fixed at the place where the boat struck it. But then it was not the act of God which caused the boat to impinge upon that log. The act of God was, at most, but a remote agency in the production of the loss; while the human act of directing the boat against the log was the immediate and direct cause of the loss. This court said, [676] nearly twenty-five years ago: “ The acts of God, or the inevitable accidents, yvkich constitute a legal excuse, must be the immediate, not the remote cause of the loss.” Sprowl v. Keller, 4 Stewart & Porter, 382; Jones v. Pitcher, 3 Stewart & Porter, 136. By the principle thus enunciated by this court, the writer of this opinion is willing to abide. To throw the onus of proving negligence upon the owner of the freight, in every case where loss might be occasioned by the striking of a hidden obstruction placed by the hand of nature, would emasculate the rule which governs the liability of common carriers, and practically abrogate the distinction between the act of God and dangers of the river. I am aware that, in some of the American courts, a disposition has been manifested to soften the stern rule of liability, visited upon common carriers; but I find it sanctioned by the authority of the common law, long declared a necessity of commerce, and founded in sound and wise policy, and think it should be maintained in its integrity, without any yielding to the hardships of particular cases. — Coggs v. Bernard, 1 Smith’s L. Cases, 82, and notes of liare k Wallace; 1 Parsons on Contracts, 634; Edwards on Bailments, 454; McArthur v. Sears, 21 Wend. 190; Angell on Carriers, § 154; Gordon & Walker v. Buchanan & Porterfield, 5 Yerger, 71-83; Fish v. Chapman & Ross, 2 Kelly, 349; 2 Kent’s Com. 602-603; Abbot on Shipping, 382; Turney v. Wilson, 7 Yerger, 340. We decline to overrule the decision of this court in Ezell v. Miller, 6 Porter, 307. — See the decision, at this term, in the case of Hibler v. McCarty, where a similar question is considered. It was, therefore, competent for the defendants to establish the custom, which they claim to have existed. There was some proof conducing to show such custom; and even though it may have seemed to the court to have been totally insufficient, or counterbalanced by other testimony, it should have been left to the jury. The jury should, however, in all such cases, be carefully .instructed, that to constitute a good custom, it is requisite that it should have been uniform, and so generally known and acquiesced in, and so well [677] established, that the parties must be presumed to have contracted in reference to them. — Partridge v. Forsyth, 29 Ala. 202: Ala. & Term. Rivers Railroad Co. v. Kidd, 29 Ala. 226; Price v. White, 9 Ala. 563 ; Barlow v. Lambert, 28 Ala. 704. What we have said settles the questions of law arising in the case, and will be sufficient to guide the court below in a future trial. The judgment of the court below is reversed, and the cause remanded. STONE, J. — In the case of the Coosa River Steamboat Company v. Barclay & Henderson, in manuscript, I expressed my views on the proper construction of the phrase “act of God,” as applicable to the liability of common carriers. C. J. Rice and myself did not concur on that question, and the result was that that case was affirmed by a divided. court. Judge Walker did not sit in that case. In the present case, Judge Walker and myself are alone competent to sit. He now expresses a concurrence with Chief Justice Rice on this question, and it follows that theirs is now the expressed opinion of the majority of the court. Although I have not changed my opinion, I now feel it my duty to permit their opinion of the law to become the judgment in this cause. RiCE, C. J., pot sitting.