Mobile & Ohio Railroad v. Weiner

Simeall, J., delivered the opinion of the court: Samuel Weiner, the plaintiff, delivered on board the cars several bales of cotton to be transported by the Mobile and Ohio Railroad from Tupelo to Mobile. In the course of the transportation the cotton was destroyed by ñre. The plaintiff in his declaration placed his right of recovery, on the general duty of the defendant as a carrier of goods, to safely convey and deliver to the consignees. The special pleas, in various forms of expression, allege an agreement in writing that the railroad company should not be liable for loss caused by ñre. Some of them aver, that the fire occurred without the fault, neglect or carelessness of the defendant. Others omit this allegation. A demurrer was sustained to these pleas. The defendant declining to plead over, the cause was submitted to the jury on the general issue. ,, On the trial, the defendant offered, in evidence to the jury, a written -paper, purporting to be signed by the plaintiff, to the effect that the railroad coprpany will assume no risk on cotton * * until able to furnish cars to take it away, and that it shall not be liable for loss from fire, while the cotton is in its possession; also that there was endorsed on the receipt of defendant, for the cotton, “ not liable for loss from fire,” and that the endorsement was known to plaintiff, and was in writing; also that on several occasions, shortly prior to this shipment, the defendant had signed for plaintiff receipts for cotton to be shipped, of the like import — 733 — as the one above referred to; also that the fire was accidental. without the fault, neglect, or carelessness of the defendant; his agents or employes; to the admission of all of which testimony the plaintiff objected, and it was excluded-. The questions of law arise upon the decisions of the circuit court sustaining the demurrer to the pleas, and in rejecting the evidence offered by the defendant. The common law holds the common carrier' liable for damage to and loss of goods committed to him for transportation, unless the damage or loss result from the act of God, which is limited to inevitable accident, or from the public enemy. 2 Fed. on Railways, chap. 26, p. 4. ITis responsibility begins with the reception, and terminates with the delivery of the property at the place of its destination. Subject to the above limitations, his undertaking is absolute and unqualified No palliation or excuse is admitted. He is an insurer of the faithful performance of his duty. The loss of the cotton by fire does not, it is conceded, come within the common law exceptions from liability. The defendant attempted, by his pleas and his offers of testimony, on the trial, to make defense on the ground that he engaged to transport the cotton under a special contract, which restricted his general legal liability, and by which the plaintiff took the risk of fire. By a long line of decisions, the doctrine was long ago settled in England, that the carrier could, by special agreement or notice, relieve himself from losses occurring from the excepted risks. The courts had pushed the principle, that a published notice worked the effect of máking an implied.contract, in accordance with its terms, to such an unreasonable extent, that parliament interferred in 1830, and by the act of 1 William, IY, ch. 68, limited its effects within narrower limits than had been allowed by the courts. Later, the railway and traffic act of 17th and 18th Yict., ch. 31, confined the exemptions of a railroad company’s liability to those stipulated for in a written contract, and which should be deemed reasonable by the judge. In England the principle was firmly estab — 734 — lished that the carrier could agree with the shipper as to the extent of responsibility. The legislation referred to, was for the purpose of restraining the power of injuriously limiting the legal liability. The doctrine that the carrier may protect himself by contract, except against' damages or losses arising from his own carelessness or negligence, or that of his agents and servants, has been adopted in this country by a number and weight of authority that, however it may be regretted and disapproved, it is too late now to attempt to shake or overture Dorr v. Steam Nav. Co., 2 Sand., 136 ; Merchants, Bank v. N. J. S. Nav. Co., 6 How., 844; Penn. R. R. Co. v. Henderson, 50 Penn. St., 315; Farnham v. R. R. Co., 55 Penn. St. 23 ; Davidson v. Graham, 2 Ohio St., 131; Ill. Cen. R. R. Co., v. Adams, 42 Ill,, 474; York Co. v. Cen. R. R. Co., 3 Wallace, 107 ; Bissell v. N. Y. C. R. R. Co., 25 N. Y., 442; Nelson v. H. R. R. Co., 48 N. Y., 503 ; Kimball V. Rutland R. R. Co., 26 Vt., 247 : Angelí on Carriers, § 239. Judge Story, in his work on Bailments, section 549, says, “ that it is now the admitted doctrine in America (as it has been settled beyond a reasonable doubt in England) that it is competent for a common carrier to limit his common law liability “ by express contract.” In harmony with this current of authority, are in this State, Gilmer v, Oarman, 1 S, ■& M., 303 ; Neil v. Saunders, 2 S. & M., 578 ; Whitesides v. Thurlkill, 12 S. & M., 3QQ. The American courts have declared, also, with great unanimity, that the carrier ought not to be allowed, by special contract, to exempt himself from loss by his own negligence, or fraud, or that of his agents and servants. Story on Railments, § 549 ; Reno v. Hogan, 12 B. Monroe, 63; Swindler v. Hilliard, 2 Rich. Rep., 286 ; Sayer v. P. S. R. R. Co.. 31 Maine, 228; Welsh v. Pittsburg Railroad, 12 Ohio St., 64. The weight of authority in this country is also in favor of the rule that the carrier cannot by public notices, although brought to the notice 'of the shipper, restrict his liabilities. Moses v. B. & M. R. R., 4 Foster Rep., 71; 26 Vt. Rep., — 735 — (supra,) 256; jones v. Voorhies, 10 Ohio, St. 145; M. C. R. Co. v. Hale, 6 Met., 644; Story on Sail., § 554. This must be done, if at all, by special contract, assented to by the shipper. Atwell v. Adams Express Co., Sup. Ct. of Tenn.; Reported in Cent. Law Journal, (1874,) p. 187. The shipper must understand the import of receipts, or other papers, embodying a contract; such papers, hurriedly handed to him in the rush of business, containing conditions and restrictions Under such circumstances, that there was not a fair opportunity to consider and understand them, ought not to impart to such conditions and restrictions the force of stipulation's assehtea to. Southern Express Co. v. Moore, 39 Miss. Rep., 826; Limburger v. Westcott, 49 Barb., 290; Blossom v. Dodd, 43 N. Y., 264. To give any validity to such matter, it must be deliberately assented to, with the knowledge and intent that it shall be binding as a special contract, and control the respective rights of the parties. The policy of contracting for a less degree of responsibility than the law imposed, has been of late years very gravely doubted. The first exceptions were in favor of small but extra valuable packages, such as money or jewels. It was but reasonable that the carrier should have notice of their contents, so that he might rate his care, proportionate to the value and the haizard of loss by theft, or other causuality. It was in reference to this sort of property, that the practice first obtained of giving notice that the carrier would not be responsible, Unless notified of its character; so that it might be entered and paid for accordingly. This just and reasonable limitation was sanctioned by the courts. So if the transportation was by Water, on the high seas, bays and rivers, the coiirts recognised as a further limitation, those perils which were incident to navigation, and against which care and prudence could not provide. Such is the origin of the modem doctrine of limiting by contract the general legal liability. It were easy to trace thoügh the books its gradual enlarge — 736 — ment and extension, until in England the abuse was remedied by parliament. The business of a common carrier, are quasi public. His duties and responsibilities arise out of his employment. The abnegation of any of these obligations, is not referred exclusively to his own discretion and selfish interest, but is determinable also by considerations of the public interest. The law excused him from losses by inevitable accidents, from which human foresight and skill could not escape. There are, however, a class of casualties and accidents, which sometimes overtake the prudent and cautious, such as fire, and robbery; but which do not come within the category of the “ inevitable.” It is as against losses from the latter accidents or casualties that the carrier may contract. He will not be permitted to abnegate the duty to use care and skill, needful for safe transportation and delivery. He must provide cars, safe and adapted to the preservation and safety of the different, sorts of freight committed to him. If one sort-of property is liable to injury from exposure to the weather, he should guard .against that sort of exposure. If another sort is combustible, he should protect it from the sparks of the locomotive. In this case the risk of fire was assumed by the plaintiff; but that did not absolve the defendant from his duty, to be careful and prudent to guard the cotton against the danger of fire. If the loss can be traced to his negligence, or that of his servants, the liability is the same as if such exemption had not been bargained for. Whilst the carrier may curtail his risk as insurer, he cannot limit his duty to use diligence, care and good faith in the custody and delivery of the goods. He cannot stipulate for less risk, than that he shall not answer for accidents and casualties which prudence could not provide against. Any greater liability than that is not supported by reason, morality, or good policy. Although the terms “ordinary” and gross negligence are frequently used in the books, it is very difficult to make the — 737 — distinction palpable to the apprehension. In Hinton v. Dibbin, 2 Ad. & El., N. S., 645, it was said by Lord Denman, that u it might well be doubted whether any intelligible distinction exists.” Such distinction was repudiated in R. R. Co. v. Lockwood, 17 Wallace, 382, as not well founded. Care, diligence and prudence must, in the nature of things, be measured by the character of the employment and business about which they are bestowed. The lack of them is negligence. The mechanic and artisan, each in his sphere, engages to bring trained and educated skill to the service of his employer. A railroad company receives its franchises and the patronage of the State, because of the benefits and conveniences it bestows in the ready and safe transportation of property and passengers. It assumes the obligation to put into operation the cars, appliances, and motive power usual and suitable to transact its business, nor can it, by contract, relieve itself from that obligation, nor discharge itself from that measure'of skill and prudence usual and necessary to the safe and orderly conduct of its business. It must put upon its road safe cars and machinery, and if loss occurs from defective or unsuitable ones, he must answer for it. Sayer v. R. R. Co., 31 Maine, 238; Lyon v. Meets, 5 East, 428. The company must furnish vehicles, safe and adapted to the nature of the property, whether live stock or inanimate matter. In Smith v. R. R. Co., 12 Allen, 532; Davidson v. Graham, 2 Ohio St., 131; Davis & Co. v. Graham & Co., 4 Ohio St., 362, and Welsh v. R. R. Co., 10 Ohio St., 74, it was held that the carrier was bound to provide vehicles suitable for the transportation of cattle. The cars must be absolutely safe. In Davis & Co. v. Graham & Co., 4 Ohio St.,, the judgment turned on the degree of negligence that would excuse, and it was declared “ if the loss was occasioned by negligence, whether slight or gross, it was not within what was, or could by contract have been made an exception to the liability of the carrier.” In the last case above cited this principle was reaffirmed. A large number of cattle were brought to a — 738 — depot for shipment. The owner signed a contract contain,-, ing this stipulation: “Having- examined the cars, he took all the risks of transportation.” It was- in proof that the day-before the shipper examined the cars, and found the doors to-be defective, but the freight agent said he would have them repaired by the- next day. The plaintiff secured the doors as best he could and loaded the cars. Because of this; defect, part of the cattle were lost. Held: That the plaintiff signed the contract under stress of circumstances. Held,, secondly: That the carrier was ne'gligent. We entirely approve of the principle and its application. A railroad company should not be excused from the duty to furnish suitable- cars, adapted to the freight offered, by exacting from the shipper a stipulation to assume the risks; of transportation. The owners of property have a right to assume that the, carrier will provide suitable and safe vehicles, and when he; h.as hauled his products to a depot for shipment,, it might-well be held that he is compelled by “ stress of - circumstances ” if he signs a contract taking upon himself risks which pl-operly belong to the occupation of a public carrier. In this Stat¿ a very large, if not the largest, freight business of the railroads is the transportation- of cotton to market. It is a duty incident to the public employment in which they are- engaged to load the cotton in cars suitable: to its. protection from fire, and to use all other usual precautions. If they fail to do this, and it is burned, it is negligence. If a valuable horse were shipped on a flat car, and-should be injured by the inclemency of the weather (as Was: the- case in one- of the authorities quoted) or should fall off- and be killed- or injured, it would be negligence, because, the vehicle was not suitable for that sort of freight. The plaintiff insists- that his rights are governed, not by the common law* but by the statute of 1863. ■ Is that statute still in force ? Is the act of 9th December*, 1863, still in force as part of the- statute law-of the State? ■ The act entitled an act to provide for a new code of the; — 739 — laws, etc., of June 9,1870, pamphlet acts, p. 624, defines in the first section, the duties of the commissioners, viz: “ To revise, digest and codify the laws of this State ” and “ to-propose alterations and amendments thereof.” The first section of the revision of 1871 provides that “the revised code of the statute laws • * * shall consist of the several chapters reported by the commissioners as amended and changed by the legislature.” The eighth sec* tion declares “ this revised Code * * shall be received in use as the statutory laws * * of a general nature, and shall supersede and repeal all pre-existing statutes of a general nature, the subjects of which are herein revised and consolidated.” . The end intended to be accomplished by a code of written statutes, is to make a full and complete expression of the' legislative will on the several subjects treated of. A code is defined by lexicographers tó be a general collection or compilation of laws by public authority. In its' more restricted sense, as intended by the act of 1870, it-means a collection and compilation of the general statutes. Manifestly the intent was, that the body of the statute law, upon all general subjects should be embraced in the revision. The general rule is, that when any statute is revised,, or when one statute is framed from another, some parts-being omitted, the parts omitted, are to be considered as annulled. Por it must be presumed that the legislature has-declared its entire will, otherwise there must be imputed tothem gross carelessness or ignorance. Sedgwick on Statutes,-429. In Massachusetts very material portions of the statute-of 1754 concerning donations and bequests to pious and! charitable uses, were held not to be in. force, because the legislature in 1785 had legislated upon the same subject,, and had omitted to re-enact these provisions. Ellis v. Page,; 1 Pick, 43; Bartlet v. King, 12 Mass., 637; Nichols v. Squire, 5 Pick., 168. In Bartlett v. King, (supra.) the court say: “ That a subsequent statute revising the whole subject matter of a former one, and evidently intended as a sub — 740 — stitute for it, although it contains no express words to that effect, must on the principles of law, as well as in reason and common sense, operate to repeal the former.” See Leighton v. Walker, 9 N. H., 59; Wakefield v. Phipps, 37 N. H., 305; Walworth & Co. v. Whitewater, 17 Wis., 196. The 8 th section of'the Code, above cited, was introduced, out of abundant caution to free the subject of all doubt or perplexity, so that it would be easy to determine what were the statute laws of a general nature in force. “If the subjects are revised and consolidated,” then all the parts of former statutes, on the same subject, which are omitted, ceased to operate on the first day of October, 1871. The subject of railroads, is considered in the 5th art. of the 55th chapter of the code of 1871, and regulations are prescribed, included in 8 sections. These rules have reference to the rate of speed through towns and cities; signals by the bell of the locomotive at road crossings; inclosures around depots, the enforced payment of freights earned, where the consignee, or owner, can not be found or refuses to receive the goods, and to make proper grades for roads crossing the railroad, and finally, declaring the liability of the railroad company for all damages which may be sustained by any person in consequence of the neglect or mis-management of their agents, &c., &c.” The legislature had in its mind all these subjects, including a summary remedy for freights earned, and injuries by negligence. The fair and reasonable presumption is that, it made all the positive regulations which it deemed expedient to make, and was content, that in all other respects the common law should provide the rules. We think, therefore, that the omission to bring forward the act of 1863, and incorporate it in the code, was tantamount to the declaration, that it was repealed. The case being unaffected by this statute, must be disposed of by the “unwritten law.” Among the principles educed from the authorities, and — 741 — which aid the attainment of a proper result on another trial are these: That whilst the railroad company may contract for a limitation of, or exemption from liability, for losses, ■ arising from those accidents and casualties, which prudence, skill and care, can not always prevent and guard against; nevertheless this does not absolve or relieve the company from that degree and measure of prudence, care and skill, in the management of its business which the law imposes. . If, therefore, a loss or injury happen to goods, from a casualty, from which the company is exempted by contract, it is still a question of fact, for the jury, whether the carrier was not negligent, whether by the use of reasonable skill and prudence, the loss might not have been guarded against and prevented. Since the case will be remanded to the circuit court for another trial, we have thought it necessary to state fully the principles that may be applicable to it. The judgment of the circuit court will be reversed and judgment here over-ruling the demurer to the pleas. The special contract, and the testimony offered by defendant, that the fire was accidental, without the fault of the defendant, was competent evidence, and ought to have been admitted. A new trial is awarded.