6 Wend. 335 | Court for the Trial of Impeachments and Correction of Errors | 1830
The following opinions were delivered :
The objections to the judgment of the court below are of two classes. The first relate to the form of the action, and to the individual liability of the stockholders; the second deny the liability of the stockholders, or of the company for the loss, in any way, or in any form of action.
By their act of incorporation, Laws of 1825, p. 336, the Dutchess and Orange Steam Boat Company are authorized to employ their capital for all objects connected with the navigation of the Hudson, by boats propelled by steam. They were therefore authorized to establish boats for the transportation of passengers, or of any thing which could possibly be the subject of transportation from one place to another, for hire or compensation. The 6th section of the act, under which this suit against the stockholders was brought, provides that the members of the corporation shall be liable individually, in the same manner as carriers at common law, for the transportation of all goods, wares and merchandise delivered to the agents of the corporation, and for all contracts made by such agents relating to the business of the corporation. Much time was spent on the argument in discussing the question whether a package of bank bills came within the description of goods, wares and merchandise, within the meaning of this section. Where words are sometimes used in different senses, their meaning in a statute must always be construed in reference to the subject matter of the enactment. For all civil purposes, and especially in the United States, where they constitute nearly the whole circulating medium of the country, bank bills are considered and treated as money ; and therefore come within the general term goods. And there can be no doubt that if a common carrier undertakes the transportation of packages of bank bills, for hire or reward, he will be liable to the same
The liability of the stockholders in this case however does not alone depend upon the meaning of the terms “ goods, wares and merchandise” in the act of incorporation. If these words had been left out of the statute, the stockholders would still be subjected to the same liability under the other provision of the same section, which makes them liable in the same manner and to the same extent for all contracts made by their agents relating to the business of the corporation. The legislature did not intend to restrict the liability of the stockholders to contracts for the transportation of goods. As the corporation are authorized also by their charter to employ their capital in the transportation of passengers by steamboats, the legislature evidently intended to extend the liability of the stockholders to contracts of that nature also. And so far as the carriers of passengers and their baggage are liable at common law, for any neglect or misconduct of themselves and their servants in the discharge of that duty, the stockholders of this company are individually and personally liable»lo the same extent. The counsel for the plaintiffs in error seemed to suppose there was something special in the form of the remedy given by the act of incorporation against the stockholders; and that the suit must be brought against all of them jointly, or each of them separately, as upon a joint contract before the passing of the act for the amendment of the law. The word66 individually” in the sixth section of the act relates to the personal liability of the members of the corporation, as contradistinguished from their liability in their corporate capacity. Every person who has a claim against the company, as carriers of perons or goods, in consequence of any express or implied contract of their agents, may therefore, at his election, bring an action either against the corporation, or against the individual stockholders as if they were not incorporated. The legislature has, in the act of
Neither is there any hardship in this mode of proceeding. The legislature had a right to grant to this company a-part of the privileges only which are granted to ordinary corporations. Under this charier the stockholders have, as between themselves, all the benefits of a corporation ; and they may even sue and enforce their own rights against others in their corporate name. But so far as respects their liability to others, the legislature did not think the object of the association of sufficient public importance to justify them in exempting the stockholders from the individual responsibility to which the members of all unincorporated joint stock companies are subjected. If the same course had been adopted in relation to a hundred other incorporations of a similar character, which are not of any particular benefit to the public, no injustice would have been done ; and individual enterprise would have had a better chance for fair competition. Those who voluntarily become stockholders of such a corporation have no right to complain that still greater privileges have
The carrier is liable in respect to his reward ; and he actually does, or has a right, to charge enough to compensate him for the transportation of the goods, and for the extraordinary vigilance which is necessary on his part to protect them from damage or loss. If, therefore, the contents and value of a package is improperly or fraudulently concealed from him for the purpose of depriving him of a part of the compensation he would otherwise have claimed for the transportation and risk, he is not liable, if he uses the ordinary vigilance which a prudent man would exercise in the preservation of his own property of the same apparent value; but if no improper means are adopted to conceal the contents of the package or its value, the party delivering it to the carrier is not bound to inform him of the contents or value thereof, when no enquiries are made of him on the subject Philips v. Earle, 8 Pick. Rep. 182. 2 Kent's Com. 468. Jeremy's Law of Carriers, 34. In this case there was sufficient information as to the contents of the package at the time it was received by the master of the Sun. He was informed it came from the Messrs. Allens; it was directed to Mr. Olcott at Albany, as cashier of a bank; it was done up in such a manner as to have the appearance of a very large sum in bank bills; and he was expressly told it was a very valuable package. Under such circumstances, no one can doubt that the master of the boat believed it to be a package of money, and received it as such.
It appears by the evidence in this case, that it was a general practice with the masters of passage boats to receive compensation for the transportation of bills and specie. And the owners of the Sun were in the habit of receiving compensation for light articles carried on board that boat. This package being delivered to the master under these circumstances, if it had been transported and delivered as directed, the Allens would have been legally liable for the usual compensation, although there was no special agreement to that
The rule of the common law has sometimes been complained of as unnecessarily rigorous and harsh. It is only considered so in those cases where the carrier is subjected to loss, although he shows conclusively that the damage was sustained without any possible fault or negligence on his part, or on the part of his agents or servants; as where the goods were destroyed by an accidental fire which consumed the building where they had been properly deposited for. safe keeping for the night; or where they were taken from his possession by a band of robbers, or other superior and irresistible force. But if the carrier were only answerable for culpa levis, which is the contrary of that ordinary care and diligence which a prudent man makes use of for the preservation of his own property, the defendants did not show sufficient in this cause to excuse them-from liability. Here must have been great carelessness or inattention to the preservation of this package, by the master or some of the servants employed by the company on board of the Sun. The captain received a package containing about $¡16,000, which, from its size and the information given him by the clerk, he must have supposed to contain a very large sum of money, which he promised to take charge of and deliver, as direct
Without taking up the time of this court with a review of all the cases referred to by the counsel in their very elaborate argument of this cause here, or in the able and satisfactory opinion delivered by the chief justice in the court below, I have arrived at the conclusion that this suit was properly instituted against the defendants below, in their individual or personal capacity; and that the plaintiffs were entitled to a verdict against them as common carriers, upon the facts , proved at the trial. The judgment should therefore be affirmed.
In the case under consideration the defendants in the court below were, by that tribunal, adjudged liable, as common carriers, for the amount of the package of bills delivered on the 15th day of November, 1826, to Robert G. Livingston, as their agent for the purpose, at that time captain of the steam-boat Sun; and being dissatisfied with the judgment of that court, they have brought it here for the revision and correction of this court, should that dissatisfaction, upon an examination of the case, turn out to be well founded.
The argument, I confess, left an impression on my mind, against the judgment of the supreme court, which subsequent reflection and examination has tended to strengthen.
The principal question, and the one involving the merits of the controversy is, were the owners of the steam-boat Sun common carriers of bank bills 1 To establish that fact, the defendants here, the plaintiffs in the court below, resort to the act of incorporation, to show that the words, “goods, wares and, merchandise,” used therein comprehend the sub
There is no doubt that a person may become a common carrier of bank bills; but I believe it will not be pretended that it is the ordinary business of such employment. In an action, therefore, charging a person as common carrier thereof, the fact should be made out affirmatively, or otherwise, clearly and distinctly ; he should be brought definitively within the operation of a harsh and rigid principle of law, rather than that principle should be allowed to possess the pupillary power of dilating itself to reach a case of doubtful character. Hoxv then stands this case 1 The defendants in the court below were owners of the Sun. Livingston, to whom the
If any thing is wanting to support this conclusion, it is found in the further fact, that after it was ascertained that neither the Constellation nor Constitution was going out, in whose captains it appears this confidence had been reposed, Mendell, the clerk of the Messers. Allens, in his inquiries of Currie about the fitness of sending the package by Captain Livingston, was actuated by a desire to know his personal responsibility; and being satisfied on that point, unhesitatingly committed the package to his charge. In addition to this, is the expression by the commercial community, of their understanding of this usage, in their release of the owners, captain, and all hands on board, from similar liability.
Having come to the conclusion that the judgment of the court below is wrong on the merits, and ought for that reason to be reversed, I have not examined the other objections raised on the argument.
It was well said, upon the argument, that this was an important case, not so much on account of the amount in controversy as the extent of the principle to be settled. It is manifest that the legislature, by the act of incorporation in this case, intended to secure the public from ultimate loss, by imposing a personal liability on the
It was urged on the argument, and that too with ability, that upon a fair common sense interpretation of the act, considering it with reference to the object which the legislature must have had in view, the party claiming redress should first seek it against the corporation; and that the individual liability imposed, was meant to extend no further than to make the stockholders personally responsible to make good all losses beyond the means of the corporation to pay. I confess this does not appear to me to be the fair exposition of the act; the suing of the corporation is not by the act made a condition precedent to the bringing a suit against the stockholders individually; they, as corporators, are subject to all the requirements of the act, and are personally liable in the first instance.
The legislature having superadded a further liability in the case now before us, we are to look to the act for the purpose of ascertaining what that liability is. The act says: “The members of the corporation shall be liable individually as common carriers,” &c. I apprehend the supreme court were right in supposing this individual liability was in contradistinction to corporate liability, and that one or all must be sued ; but the court sajr the non-joinder of all the defendants can only be taken advantage of by a plea in abatement. If it be considered, then, as imposing a joint liability by reason of the statute, should not the party insisting upon it, bring himself strictly within the statute 1 If this be considered an action upon the statute, and not at common law, the supreme court were under a misapprehension in applying the common law doctrine to the mode of rendering them liable. It only applies to the extent of their liability.—to cases in which common carriers would be responsible at common law ; and
As to the second point: It appears, both from the conduct of Capt. Livingston upon the receipt of the package and from his testimony, that he did not consider himself as acting as the agent of the company when the package was delivered. The question put to him was, will you take charge of the package! the same which would have been put to any individual. Nothing was said, either by the captain or Mendell, as to payment or any compensation for the carriage or the risk to be incurred; and it cannot admit of a doubt that in order to make the company liable, there must have been a quid pro quo—something paid or agreed to be paid, as a compensation for the freight and the risk, upon the receipt of the package. It appears the captain acted as any other individual would have done under like circumstances; he did not demand any pay; said he would take charge of the package and deliver it; took it into his office and locked it in his private drawer; no bill of freight was made out, nor was it entered on the books. From the testimony of Livingston, it appears that he considered the carriage of money as a matter between himself and the person entrusting it to him, and with which, either as it regards the compensation or the risk, the company had nothing to do.
In order to make the company liable for the loss of the package, it is clear that it should be established that both Mendell and Livingston understood that such was the eondi
As to the third point: The testimony shews that if Livingston did receive the money as agent, he was not acting in execution of his authority ; indeed, he was expressly forbidden to take money. Yet this will not avail the defendants, (there being no public notice to that effect,) if, from the conduct of the proprietors or their agents, the plaintiffs or the public had good reason to suppose that in the carriage of money Livingston acted as their agent. There certainly was nothing in the conduct of Livingston himself calculated to produce this impression; he never carried money except for the agents of the company ; his boat, the Sun, was not advertised for freight, and never carried freight except as a matter of favor; he did not demand any compensation for his trouble and risk, but acted in relation to the whole matter precisely as any other individual would who considered that he was barely doing another a favor. It also appears that it was the usual custom, not only with the captains of the boats belonging to this company, but of the other boats on the river, to carry money and themselves receive the compensation, without rendering any account to the owners. The owners neither regulated the amount of freight to be charged, nor received it when paid. The transaction w:as in all cases a mere matter of arrangement between the person sending the money and the captain, with which the owners were in nowise concerned. The captains sometimes received more and sometimes less compensation, and sometimes none at all. Can it be supposed, under these circumstances, that the owners considered the compensation received by the captains as part pay for services rendered to the owners 1 As well might we say that, because a person happens to be a captain of a steam-boat, he shall be incapable of transacting any business
Take the cases pertinent and apply them to this cause, and I think it will plainly appear that the company are not liable. It is laid down by Lord Kenyon, in treating of the liability of a common carrier,' that the question is, cc whether at the time the accident happened the goods were in the custody of the defendants as common carriers.” 5 T. R. 394. In Esp. Dig. 622, this rule is laid down : “ A delivery to a. carrier’s servant is a delivery to himself, and shall charge him, but they must be goods such as it is the custom of the carrier to carry, not out of his line of business.” Again, in 2 Comyn on Contracts, 320: 66 Those who carry goods for hire are considered common carriers.” In I East, 604: e< He must see to it when he delivers goods to an agent who is only agent for the ordinary business of the company, that the goods are such as fall within that business, otherwise they are not within the authority of the agent.” Again, he is to carry for hire. In 4 Burrows, 2300; 66 His warranty and insurance is in respect of the reward lie is to receive,” per Lord Mansfield. Again, per Jlston, J. in the same case : “ The true principle of the carrier’s liability is the reward.” The legislature, in the incorporation of a steam-boat company to Carry goods, wares and merchandise, cannot reasonably be considered to have contemplated the carriage of packages of
Without going into a minute review of the numerous authorities cited on the argument, I shall content myself with briefly presenting the result of my examination and reflection on this case.
The sixth section of the act incorporating the Dutchess and Orange steam-boat company declares, “ that the members of said corporation shall be liable individually, in the same manner as carriers at common law, for the transportation of all goods, wares and merchandise, delivered to the agents of said corporation,” &c. The object of the incorporation was to facilitate the transaction of their business; and this clause of individual liability was intended to give to the community the additional responsibility of its members, instead of the sole responsibility of the company. The members are, therefore, individually liable, as carriers at common law, the same as if this act had not been passed.
The terms, “ goods, wares and merchandise,” may or may not include bank bills, according to the manner in which they are used, and in reference to the subject matter to which they are applied. This company, no doubt, may make themselves common carriers of bank bills; but it by no means follows that they are so, because the act of incorporation is broad enough to permit them to become so. Whenever, from the nature and course of their business, they undertake to be common carriers of them, then the corporation not only, but its members individually are liable, as such. The testimony shews conclusively to mind, that the company did not and never intended to become common carri
I would, by no means, relax the rule of the common law, that the carrier is liable for all losses that do not fall within the excepted cases of the act of God or public enemies ; but before his liability can attach, it must appear that he is common carrier of the thing for the loss of which he is sought to be charged. A common carrier is liable to an action, if he refuse, without just ground, to do what is required of him in the course of his employment, provided he has the requisite convenience to carry, and is offered a reasonable or customary price. Suppose then Captain Livingston, as agent of the company, had refused to carry this package, although tendered the customary compensation, alleging that the owners were not common carriers of bank bills, can it for one moment be believed that the company would be liable for such refusal % If not, and to me it appears clear that they would not, then certainly they have not made themselves common carriers of bank bills, and the members of the corporation am not invidually liable.
My opinion is, that this action cannot be maintained, and that the judgment below ought to be reversed,
For affirmance—The Chancellor, and Senators Beardsley, Benton, Conklin, McCarty and Rexford—6,
For reversal—Senators Allen, Armstrong, Boughton, Beitz, Gere, Hubbard, Mather, McLean, Oliver, Sherman, Tallmadge, Todd, Warren, Wheeler and Woodward—15,
Whereupon the judgment of the supreme court was reversed.