Columbia, April and May, 1867. CAROLINE PORCHER vs. THE NORTHEASTERN RAILROAD COMPANY. Common Carrier-Loss of Goods. If a common carrier has reasonable grounds for not receiving goods offered him for transportation, he may do so; but if he once receives them, he becomes an insurer, and can only exonerate himself from liability by showing that the loss arose from the act of God or the public enemy. BEFORE DAWKINS, J., AT CHARLESTON, JANUARY TERM, 1867. The report of his Honor, the presiding Judge, is as follows: "This was an action on the case, brought to recover the value of three bales of cotton, which had been received by the Company, 4th February, 1865, thirty miles from Charleston, to be transported thirty-four miles to the opposite side of the Santee river, and which were lost to the plaintiff-the object of the removal being to place them where they would probably be more safe from the raids of the enemy. A receipt was given for the cotton, which should be produced at the trial. The weight of the bales averaged three hundred and thirty pounds, and Mr. Howard, factor, proved the cotton worth $1.30 per pound. Cotton was sent by others, residing on or near the line of the railroad, to the same place of deposit, and afterwards delivered to them. Mr. Solomons, the superintendent of the road, testified that the only claims for loss against the Company arose from the receipt referred to above. "As the defence rested on the evidence given by Mr. Solo. mons, I will give what he said. He was the Superintendent of the Northeastern Railroad Company in February, 1865. For two or three weeks the road was employed in removing Gov Porcher vs. Railroad Co. ernment stores. The military had the control of the road. Military, as he thinks, threw off cotton-cotton received thirty miles from Charleston to be carried thirty-four. This only claim for loss-cotton thrown off after evacuation of Charleston (which was 18th February.) Confederate troops destroyed cotton, (but didn't say this,) cutting open bales and making beds, &c. The country was demoralized. "Did not instruct agents not to receive goods for transportation; did not notify persons sending goods that the road would not be responsible. "Upon the first ground of appeal, I remark that the counsel for defendant, in his argument, admitted the right of the plaintiff to recover; characterized the law, in relation to the liability of common carriers, as extreme and unsuited to the progress and spirit of the age, and where the greatest care and diligence was used, if it did not excuse, it should reduce the damages below the loss sustained by the plaintiff. "I instructed the jury that the law, in relation to the liability of common carriers, was founded on wise and good policy, and that the carrier occupied the position of an insurer, and that he would not be discharged from loss of goods intrusted to his care, except by the act of God or the enemies of the country. Chit. on Contracts, 481. "What I have to say on the next ground of appeal, and which is a sequence to the first, will show my view of the policy of the law in holding common carriers to the strictest responsibility. "Mr. Solomons was not clear as to the precise time the military had control of the road, and to what extent it was used, as cotton belonging to private persons was transported safely over the road. It did not appear satisfactorily to my mind what had become of the cotton. Solomons thinks he saw the military throw out cotton; believes it was plaintiff's, but is not certain. He, however, did nothing to preserve the property, and gave no notice to the plaintiff of its exposed con Columbia, April and May, 1867. dition, if it was her cotton thrown off. The ground of appeal states that the railroad, and all its rolling-stock, were in the possession of the military when the cotton was received. If this be so, the officers of the Company knew best the capacity of the road for transportation, and should have advised the plaintiff of the difficulty and danger, if any existed; not having done so, and giving no notice that they would not incur the risk, all the liability of a common carrier attached when they received the cotton. If they took a greater quantity of commodities than they could transport, they are chargeable for any loss occasioned thereby. Chit. on Con. 481, n. 2. If the plaintiff had been advised of the difficulty, she might have availed herself of some other means of transportation. "The jury found for the plaintiff $900.” The defendants appealed, and now moved this Court for a new trial, on the grounds: 1. That his Honor charged that there was no limit to the liability of a common carrier, except where the loss was caused by act of God or the public enemy; whereas it is respectfully submitted that such common carrier is required to exercise the greatest care and diligence possible under all surrounding circumstances, and, if he does so, he will not be liable for loss or destruction of goods committed to his charge. 2. That it was in proof that the Northeastern Railroad and all its rolling-stock were in the possession of the military in the removal of troops when the cotton was received, and the Judge's charge precluded the defendant from the benefit of these extenuating circumstances. Martin, for appellants. Simonton and Barker, contra. Porcher vs. Railroad Co. The opinion of the Court was delivered by DUNKIN, C. J. It is stated by all the text-writers that, in addition to the obligation of exercising all reasonable care of the property intrusted to his charge, which duty arises from the reward paid, the law affixes to a common carrier the responsibility of an insurer—that is, (says Mr. Justice Story,) he is responsible for all losses not occasioned by the act of God or of the public enemy. The inquiry, therefore, is not whether the carrier has, or has not, been guilty of negligence, but whether the loss comes within either of the excepted cases. Such is the stringency of the rule, that it is well settled that losses, occasioned by robbery on the highway, or by the depredations and violence of mobs, rioters and insurgents, are not deemed losses by the public enemy, within the meaning of the exception. Story, Bail., sec. 526. It is said, in the second ground of appeal, (which alone has been relied on in this Court,) that, at the time when the plaintiff's cotton was received, the Northeastern Railroad and all its rolling-stock were in possession of the Confederate military authorities in the removal of troops, and that the Judge's charge precluded the defendant from the benefit of these extenuating circumstances. A common carrier is bound to receive and carry all goods offered for transportation by any persons whomsoever, upon receiving a suitable hire. This is the result of his public employment as a carrier, and he will be liable to an action, unless there is a reasonable ground for the refusal. But if he refuses to take charge of the goods, because his coach is full, or because they are of a nature which will at the time expose them to extraordinary danger, or to popular rage, or because he has no convenient means of carrying such goods. with security, &c., these will furnish reasonable grounds for his refusal; and will, if true, be a sufficient legal defence to a suit for the non-carriage of the goods. Story, Bail., sec. 508. On 11th February, 1865, the defendants received from the Columbia, April and May, 1867. plaintiff, at the Monk's Corner Depot, thirty miles from Charleston, certain bales of cotton to be transported to Kingstree, thirty-four miles further, and there delivered to Peter Mouzon. On 17th February, the cotton was sent, from Monk's Corner, on the freight train. The action was brought, and a verdict rendered, for the value of three of these bales of cotton. The charge of the presiding Judge, to which objection is taken, is thus reported by him: "The ground of appeal states that the railroad and all its rolling-stock were in the possession of the military when the cotton was received. If this be so, the officers of the Company knew best the capacity of the road for transportation, and should have advised the plaintiff of the difficulty and danger, if any existed; not having done so, and giving no notice that they would not incur the risk, all the liability of a common carrier attached when they received the cotton. If the plaintiff had been advised of the difficulty, she might have availed herself of some other means of transportation." The Court can perceive no error in the instructions thus given. It was for the defendants, and not for the plaintiff, to estimate the difficulty of the undertaking and the extent of the risk. According to their statement, the road and its rolling-stock were, at that time, "in the possession of the military in the removal of troops, &c." Under these circumstances, they may have declined to take charge of the plaintiff's cotton for the purpose of transportation. They judged for themselves, and having signed the receipt and, six days afterward, moved off the cotton, they voluntarily assumed a responsibility which rendered them liable to the plaintiff's action. The motion is dismissed. WARDLAW and INGLIS, J. J., concurred. Motion dismissed. VOL. XIV.-13 |