4 Ind. 368 | Ind. | 1853
Assumpsit by the plaintiffs against the defendants for the purpose of recovering from the latter the value of a box of goods which it is alleged they received as wharfingers, and negligently lost. Plea, non assumpsit. Trial by the Court without a jury, and judgment for the defendants. A motion for a new trial was overruled.
The evidence is upon the record; and from it, it appears that in March, 1851, the plaintiffs, Cox, Robb, Sf Co., purchased of a mercantile house in Cincinnati, Ohio, a bill of goods exceeding 800 dollars in amount, which goods were to be forwarded to the store of said Cox, Robb, Sf Co., at Paris, in Posey county, Indiana.
The goods were packed in four boxes and shipped on the 3d day of April, 1851, upon the steamboat Bay State, and consigned to Cox, Robb Sf Co., Paris, care of Morgan and Keen, Evansville, Indiana. Paris is situated some twenty-five miles from Evansville, in a north-westerly direction, and back from the river.
Morgan and Keen were wholesale merchants in Evansville, and the plaintiffs, Cox, Robb, Co., were customers of them, and, hence, took the liberty, without their consent or knowledge, of having the goods in question consigned to their care.
The defendants, O'Riley and Mitchell, were wharfingers and forwarding and commission-merchants at Evansville, and in the habit of receiving goods shipped to Morgan and Keen.
Three boxes of said goods arrived at Evansville, were discharged upon the wharf-boat of Taylor and Harvey, and received by O'Riley and Mitchell, the defendants, who, on the 21st of April, by their clerk, Mr. Wheeler,
Two or three days after this, the missing box was discharged upon the wharf-boat of Taylor and Harvey, being returned from Paducah, whither, by some agency, it had been taken. It was received by the defendants, O'Riley and Mitchell. Shortly afterwards it was missed again, and was unheard of for two weeks, at the end of which period it re-appeared at Evansville, from a trip upon the Wabash, and was placed upon the wharf-boat of the defendants. The clerk of said wharf-boat, soon after, informed “alad” employed about the store of Morgan and Keen, but in what capacity does not appear, though it was proved that it was not his business to receive or deliver goods, that the missing box had arrived, and requested him to notify his employers of the fact; but he did not know whether the request was complied with. The box remained on the outer guard of the wharf-boat for five days. Morgan and Keen, within a day or two after its arrival, had information that the box was upon said boat, but from what source the information was derived is not shown. On one occasion, O'Riley directed a drayman to take said box to Morgan and Keen, and he promised to do so after he should have attended to a steamboat that was about landing at some point, not designated, in the port of Evansville. When he returned for the box he was unable to find it. It does not appear that he made any inquiry, but simply a search by himself for the box, which proved fruitless. The record discloses nothing further as to what became of it.
It was proved “that the practice on the wharf-boat of the defendants was, that ‘town’ freight was received by the defendants, but not stored on the wharf-boat unless
Such is the case made by the evidence.
Wharfingers are not, like common carriers, answerable for all goods that may be intrusted to them in their line of business, except such as may be lost by the act of God or the public enemy. They are responsible for losses only which happen through a neglect to exercise reasonable and ordinary care and diligence. They are in the same category, in this particular, with warehousemen. Story on Bailm.,p. 451.— Thomas v. The Boston and Providence R.R. Co., 10 Met. 472. Were it shown, then, by the evidence, that the box of goods in question, which is traced to the possession of the defendants as wharfingers, had actually passed out of their possession.—been lost, in fact, from them—we should be called upon to determine whether it
But the evidence does not show that it has passed from the possession of the defendants. It was last seen upon their wharf-boat, and they give no further account of it. For-aught that appears, it may have been taken by them to their own house, and appropriated to their own use. It devolved upon them to show the box out of their possession. They might have proved that it had been consumed by fire, crushed and destroyed by other boxes, &c., thrown upon it, knocked into the river, or taken off by the hands of some other steamboat, &c.; and when such proof had been made, it would have devolved upon the plaintiffs to establish that the loss, however it might have happened, occurred for the want of reasonable care on the part of the defendants. But they must first clear themselves of the possession of the property. A rule of law that would permit a party to receive property, refuse to account for it, and be protected in the refusal by a presumption that it was lost, would work too great and too frequent injustice to be tolerated. In the case before us, one of the defendants points out the box in controversy to a drayman. It is then on his own boat, in his own custody. At a subsequent hour the drayman calls to receive the box, but it is missing. No attempt is now made by the defendants to account for its absence. It is not shown that any other steamboat had been receiving, in the meantime, goods from the wharf-boat on which the box was seen, and, hence, might have taken it, nor that any person had been upon the wharf-boat for any purpose. The naked facts simply appear, that the box is at one hour in the possession of the defendants, at another it is called for and not found, and from that time to the present remains unaccounted for. The rule that the party must prove the property to have been lost, may sometimes operate hardly on the bailee, but not so often as would the contrary work injustice to the owner.
But it is said that usage at Evansville absolves wharf
But no such usage as is contended for is proved. A usage of trade may be proved to aid, in a case of doubt, in construing a contract, or determining upon the manner of discharging some duty or performing some act; but to give it controlling effect, it must be shown to be a long continued, uniform, and generally known usage. It must also be a usage relating to matters of fact, and not to modes of thinking as to the law. In this case the proof is simply that the wharfingers, &c., at Evansville, after notice given, &c., were accustomed to consider themselves as not responsible. This amounts to nothing. A usage in conflict with plain, well-established rules of law, is not admissible in evidence in any case, and must be disregarded. We may be permitted to add the remark that were the courts, by their decisions, to encourage the growth of these local usages, originating generally in lax business practice or mistaken ideas of law, they might become as great an evil, a source of as much want of uniformity in the law, as was the local legislation of the
For cases illustrating the law as to proving usage and custom to aid in the construction of contracts, &c., see Foye v. Leighton, 2 Foster (N. H.) R. 71.—Edie v. East India Company, 2 Burrows 1216.—Bowen v. Stoddard, 10 Met. 375.—Hone v. The Mutual Safety Insurance Company, 1 Sandf. (N. Y.) R. 137.—Beirne v. Dord, 2 id. 89.—Beals v. Terry, id. 127.—Suydam v. Clark, id. 133.—Webb v. National Fire Insurance Company, id. 497.—Read v. Gibbs, 3 id. 203.—Child v. Sun Mutual Insurance Company, id. 26.—Hawes v. Lawrence, id. 193.—The Citizens’ Bank v. The Nantucket Steamboat Company, 2 Story’s R. 16, and cases there cited; and see 2 Greenl. Ev. p. 205.
The judgment is reversed with costs. Cause remanded, &c.