12 Ga. 217 | Ga. | 1852
By the Court.
delivering the opinion.
This action was brought to recover the value of a trunk and its contents, from the defendants, as common carriers. The defendants were proprietors of an omnibus, running from their 'hotel, in the city of Macon. The trunk was placed in charge of the plaintiff’s son, a youth about fourteen years old, at Columbus, and taken with him, as baggage, on coaches running
First — Because the plaintiff had not proved that the trunk had been delivered into the possession of the defendants.
Second — Because the articles contained in the bill of parcels annexed to the declaration, and which the evidence was offered to show were in the trunk, were merchandize, and not such articles of necessity and convenience as travellers are accustomed to take with them, and for the loss of which alone, the defendants are by law liable.
Third — Because the evidence of a party to prove the contents of a trunk, in an.action to charge a common carrier for its loss, is admissible only in case of spoliation being committed on the property of the plaintiff, by the carrier, and as no spoliation was proven to have been committed by the defendants, the evidence was inadmissible.
Upon these grounds, the testimony was rejected, and they make the points brought up fof’review.
No objection was made to the evidence, upon the score of Mrs. Dibble being the plaintiff’s wife. The plaintiff in error in the record, and counsel on both sides, in the argument, treated the case as if the plaintiff in the action had himself been offered to prove the contents of the trunk, and their value. The general rule is, that a wife is not a competent witness, in a suit where her husband is a party, for reasons which grow out of the relation of husband and wife. Her competency, in this case,
: [2.] The third ground of objection, which Inext notice, because more appropriate to this stage in the argument, is that the exception upon which the evidence of the plaintiff is admissible, to prove the contents of a trunk, in an action to charge a carrier for its loss, extends to cases only, where the carrier is proven to have been guilty of some fraud or other tortions and unwarrantable act of intermeddling with the plaintiff’s goods, and is then only admissible, when there is no other evidence to prove the damage. In no case is it admissible, if there is other evidence of the damage, at the command of the plaintiff. If there is none, then it is true, that the spoliation being proved, the evidence of the party is admissible, in odium spoliatoris. This rule is fully illustrated in the case of Herman vs. Drinkwater. There, a ship-master received on board of his vessel, n trunk of goods, to be carried to another port. On the passage, he broke open the trunk and rifled it of its contents, and in an action, by the owner of the goods, the plaintiff having proved^ aliunde, the delivery of the trunk and its violation, was held competent to testify to the contents of the trunk. 1 Greenleaf’s R. 27. Childrens vs. Saxly, 1 Vern. 207. 1 Eq. Gas. Ab. 229, S. C. Tait on Ev. 280. 1 Greenleaf’s Ev. §348.
In 12 Vin. 24, Pl. 32, it is laid down, that on a trial at Bodneys coram Montague B. against a common carrier, a question arose about the things in a box, and he declared that this was
[4.] The second ground of objection to Mrs. Dibble’s testimony involves a question of some difficulty and of great practical importance; and it is this, to wit: how far the rule admitting the evidence of a party, is limited by that kind of liability which the law has imposed upon stage contractors, railroad companies, omnibus proprietors, and others who carry passengers, for the loss of their baggage.' The point, then, resolves itself into the inquiry — For what articles in a trunk, accompanying a
It is, however, now well settled, that they are liable for baggage, as common carriers. Without other compensation than the fare for passengers, they are liable for their baggage, as common carriers are liable for goods delivered to them for transportation ; that is, they are liable for baggage at all events, except when destroyed by the act of God, or irresistible accident, and the public enemies. Brook vs. Pickwick, 4 Bing. 218, 222. Christie vs. Griggs, 2 Camp. R. 86. Allen vs. Sewell, 2 Wend. R. 327, 341. S. C. 6 Wend. 335. Clark vs. Gray, 6 East. 564. 13 Wend. 611, 627, 628. 9 Ibid, 85, 114 to 119. 19 Ibid, 234. 2 Kent’s Com. 600, 601, 4th edition. 1 Bell’s Com. 467, 468, 475, 8th edition. Story on Bail, 511.
/' [5.] It remains, however, to inquire, what is to be understood by baggage, for which they are thus liable ? And we are not guided, in this inquiry, by adjudications which settle a definite rule of universal application. From their usual course of business, when they carry a passenger, a contract is implied to carry also his baggage. They are presumed to be compensated in the fare for his transportion, and I can very well believe, well compensated, because the amount of travel is greatly increased by the comfort and convenience of carrying baggage, and would be lessened, if, lor his baggage, a passenger was required to pay freight. It is curious to remark, as Ido, enpassant, that the law takes more care oí a man’s luggage, than it does of his life and limbs ; for the former, the.carrier is liable as insurer against loss, except by the act of God and the public enemies; for the safety of the latter, he is'bound only to extraordinary care and diligence. But to return: to what articles, under the denomination of baggage, does this implied contract extend ?
It has been decided that, under the term baggage, merchandize, as silks or other fine articles, are not embraced; (25 Wend. 458); nor large sums of money, (9 Wend. 85); nor samples of merchandize, (6 Hill’s N. Y. R. 586.) A watch is embraced,
The negative part of Judge Story’s definition, with more precision, furnishes a rule pro tanto. Baggage, he says, does not embrace merchandize, or other valuables not designed for personal use, but which are designed for other purposes, such as a sale or the like. We may safely say, that it does not embrace merchandize or other articles which are intended to be sold.
So, all articles of a value disproportioned to the compensation received in the fare of the passenger, and which must, on that account, subject the carrier to unreasonable hazard, and which are not presumed to be needed for personal use, either as a necessary or a convenience, I w'ould suppose, are in like manner excluded. At the same time, I must say that the obligation of the carrier, which is incidental to, and implied from his contract to carry persons for hire, as to baggage, is not limited absolutely to wearing'apparel and other appliances of necessity, comfort or convenience, suited to the” condition of each traveller, but may embrace other articles of limited value and ordinary bulk, which he may think proper to take with him. If, howev
Let the judgment be reversed.