Walpole v. Bridges

5 Blackf. 222 | Ind. | 1839

Dewey, J.

* • This was an action on the case against a common carrier, founded on his general liability, for the non-delivery of goods, &c. Verdict and judgment for defendant.

On the trial, the plaintiff produced' a bill of lading by which the defendant, by his agent, acknowledged the receipt of the goods, and undertook to carry them from Madison to Indianapolis there to be delivered, &c., (“ the unavoidable dangers and accidents of the road only excepted”). The Court instructed the jury, at the request of the defendant, that the plaintiff could not maintain his action, without other proof of an undertaking by the defendant than that afforded by the bill of lading, because that instrument “is a contract more favourable to the defendant than the common law of carriers, and, therefore, the action ought to be on the contract.”

With some hesitation we have come to the conclusion that this charge is wrong. By a delivery of goods to a common carrier to be conveyed for hire, he becomes liable for all injuries not arising from the “act of God, or of public enemies.” The difficulty lies in giving a definite meaning to the phrase “act of God;” that it denotes “natural accidents, such as lightning, earthquakes, and .tempests,” admits of no doubt; but we are inclined to think its signification is more general, and embraces all other unavoidable or inevitable accidents. Jones on Bailment, 104 f. — Story on Bailment, 318, 319. — 2 Kent’s Comm. 609. —10 Johns. R. 1. — Leigh’s N. P. 508, 509. If this construction be correct, the exception contained in the bill of lading, of “unavoidable dangers and accidents of the road,” is included in the acts of God, and does not restrict the general liability of a common carrier.

W. Quarles, for the plaintiff. C. Fletcher and O. Butler, for the defendant. Per Curiam.

The judgment is reversed, and the verdict set aside, with costs. Cause remanded, &c.