36 Ga. 635 | Ga. | 1867
1. An Express Company which pursues continuously, for any period of time, the business of transporting goods, packages, etc., is a common carrier; and in ease of the loss of goods entrusted to it to be carried, the presumption of law is against it; and no excuse will avail it, unless the loss was occasioned by the act of God, or public enemies of the State. Rev. Code, Sec. 2040; Fish vs. Chapman, 2 Kelly’s Rep., 349. At common-law a carrier is in the nature of an insurer, and is bound to keep and carry goods entrusted to his care safely, and is liable for all losses, and in all events, except those caused by the act of God, and the king’s enemies. This is the law, it is believed, in every State in the Union. Ch. on Car., 34, and note.
2. The responsibility of the carrier commences with the
3. It is insisted that the receipt given in this case was evidence of such an express contract as is contemjdated by the Code, Sec. 2043. Perhaps a more inviting field for legal disquisition than this, could not be found. The books, especially of late yeai’S, are filled with cases bearing upon this question. One who has leisure, and desires to explore this doctrine, can be gratified by examining Angel’s and Chitty’s works on Common Carriers; Story and Edwards on Bailments; the notes in Smith’s leading cases to Coggs vs. Bernard, and the cases in 19 and 21 Wendell, and 2 Hill’s H. Y. Reports.
Our Code has incorporated the rules of the common-law as expounded in Georgia, in Fish vs. Chapman, 2 Kelly, and with it we are satisfied. The learned annotator of Ch. on Car., p. 45, calls the opinion of Mr. Justice Nisbet, in Fish vs. Chapman, a “learned and thorough opinion,” and quotes it almost entire as evidence of the common-law. “ A common carrier cannot limit his legal liability by any notice given either by publication or by entry on receipts given, or tickets sold. He may make an express contract, and will then be governed thereby. Rev. Code, Sec. 2042. The carrier, then, cannot limit his liability by entry on receipts given, though he may make an express contract. This section intended to require the assent of the shipper to be given to any modification of the common-law contract of common carriers. The
The entry on the receipts in this case, can be regarded in no other light than as notices given by the carrier, and though it be considered that they were brought home to the plaintiff, yet they are not of that character, and did not relate to such “regulations” as he had a right to adopt of his own mere will, and bind shippers thereby. They did not relate alone to “the consideration for risk,” and there is no pretence that the carrier was not correctly informed as to the nature and value of the goods entrusted to him. There were no fraudulent acts, sayings or concealments by his customer. It was a simple effort on the part of the carrier, by an entry on a receipt, to limit his legal liability; nothing more, nothing less, and this the law says he cannot do. “ For the law charges this person (the common carrier) thus entrusted to carry goods, against all events, but acts of God and enemies of the king. For though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless, he is chargeable. And this is a politic establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs oblige them to trust these sort of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all
5. The Court is not bound to give in charge a general proposition, though it be the law, unless it be applicable to the facts of the case. If such general charge be requested, he may either decline to give it, or he may modify or add to it so as to make it pertinent to the facts and the issue to be tried. While the request to charge, with the addition made thereto by the Judge, is not perhaps as happily expressed as it' might be, still we think it sufficiently clear to be understood, and to contain a correct legal proposition. We understand the whole charge taken together, to mean that so far as a common carrier is concerned, the mere acceptance by a shipper of a receipt containing limitations of the carrier’s liability, would not make an express contract between the parties, and thereby relieve the carrier from the extraordinary diligence imposed upon him by law. Thus understanding the charge of the Court below, we concur with him.
This is a hard case, and I have felt a strong desire to protect this Company against the payment of this claim, if I could do so on legal principles. If the jury had found that an express contract was made, by which the Company was not to be liable as common carriers, but only as ware-housemen, and only took charge of the goods as such, until such time as means of transportation could be procured, I think I would have been better satisfied with the verdict. But that was a question for them, and I cannot say that the verdict is deci