CASES AT LAW

IN THE

COURT OF APPEALS

ОР

SOUTH CAROLINA.

BAKER V. BRINSON.

[9 RICHARDSON'S LAW, 201.]

BURDEN IS ON COMMON CARRIER TO SHOW THAT Loss IS WITHIN STIPU LATED EXCEPTION from liability, and that there was no negligence. EXCEPTION OF "RUST AND BREAKAGE," IN BILL OF LADING, exempts the

carrier from liability for such rust and breakage only as could not have been avoided by care and diligence.

ONUS UPON CARRIER TO PROVE NO NEGLIGENCE, WHERE HE STIPULATES

FOR NO LIABILITY for rust and breakage, and a stove is broken in the transit, is not discharged by merely proving that the stove was stored in a proper place, especially when another stove stored there was also broken.

ACTION against a common carrier for the value of a stove broken while being carried on shipboard. In the bill of lading, "rust and breakage" were excepted. The evidence showed that the breakage would not have occurred under careful handling, and that the injury might have been produced by the rolling of the vessel if the stove rested upon a basis not co-extensive with its own. The vessel made its usual passage of six days. The defendant showed that there was no deck load, and therefore it must be inferred that the stove was stowed in the hold, where it should have been. In his report of the case, the presiding judge says: "Upon this case my judgment is, that although the shipper and carrier may agree to stipulated exceptions from the entire scope of the carrier's common-law liability, yet, as in Singleton v. Hilliard, 1 Strobh. L. 203, and Swindler v. Hilliard, 2 Rich. L. 286, that in such cases the car

rier must be held to 'strict proof of diligence and care in avoiding loss to the owner,' by reason of any cause within the exception; that'the onus lies on the carrier to show the injury to be within the exception, and also that there was no negligence.' I do not think the carrier in this case has come up to such rules, for he has shown no more than that the stove was stowed in the hold of the vessel, or, more strictly speaking, that when the vessel arrived there was no deck load. A witness said that of two hundred stoves brought, within his knowledge, this was the second one found broken. There scarcely could have been the care and diligence exercised towards the other one hundred and ninety-eight. Decree for plaintiff for twenty dollars and twenty-five cents." The defendant appealed, and moved this court for a new trial, the principal ground being that he had shown enough in showing that there was no sign of improper stowage to cast from himself the onus of proving a negative. Allemong and Northrop, for the appellant.

Martin, contrá.

By Court, WHITNER, J. The case of Swindler v. Hilliard, 2 Rich. L. 286, was well considered, and fully sustains the present decision. Whilst in this state we recognize the doctrine that a carrier may limit, by special contract, his common-law liabilities, there is not the slightest disposition further to modify the rules justly applicable to such transactions. Learned judges in England and America have regretted the recognition of such exceptions. The exacting tendencies of certain great carriers of the present day, enjoying facilities that almost exclude competition, admonish us, in the application of these wholesome rules, carefully to guard against any abuses. Notwithstanding their apparent rigor, there is a salutary policy in these common-law doctrines, and those who are called to administer the law must see to it that they are not wholly evaded.

It is only necessary to bear in mind that the character of the carrier is not changed; his liability only, to the extent of the exceptions, is diminished. In all things else the very same principles apply. Care and diligence are still elements of the contract, and "strict proof" is properly required before any exemption may be claimed. There is nothing in the contract which, by implication even, can be regarded as making it otherwise. That is a sound rule which devolves the onus on him who best knows what the facts are. In cases of loss, proof of delivery devolves at once on the carrier the onus of exempting him

self from liability-and nothing can be more reasonable-before he can take shelter under an exception to require proof of his care. In the bill of lading before us, "rust and breakage" are excepted, words of singular import, and in one sense might be supposed to cover any injury, unless the purpose was to make the owner his own insurer; however gross the negligence of the carrier, we are brought back to the same point that the exception includes such breakage as care and diligence could not avoid. However, the legal principles of our cases being scarcely challenged, unless in a very general way, the grounds of appeal seem to complain that they have been rather rigorously applied. When it is insisted that a particular fact being shown the onus was thereby shifted, this is but another form of asserting that a sufficient excuse was proved.

We are disposed to rest this part of the case on the view taken of the evidence by the presiding judge. The motion for a new trial is refused.

O'NEALL, WARDLAW, and WITHERS, JJ., concurred.

Motion refused.

POWER OF COMMON CARRIER TO LIMIT HIS LIABILITY BY EXPRESS CONTRACT: See Kimball v. Rutland etc. R. R. Co., 62 Am. Dec. 567, and cases cited in the note 573; Graham v. Davis, Id. 285, note 294; Dorr v. New Jersey Steam Nav. Co., Id. 125, note 129. The principal case is cited to the point that a common carrier may limit his common-law liability by contract, in Levy v. Southern Express Co., 4 S. C. 241, in which it was held that this limitation might be extended to a second carrier to whom the first carrier delivered the goods, when this extension of the privileges of the contract was provided for in the contract made with the first carrier.

POWER OF COMMON CARRIER TO LIMIT HIS LIABILITY BY NOTICE.-The authorities conflict: See Moses v. Boston & Maine R. R., 64 Am. Dec. 381, and note 393; Kimball v. Rutland etc. R. R. Co., 62 Id. 567, note 573; Dorr v. New Jersey Steam Nav. Co., Id. 125, note 129.

CONTRACT EXCEPTING CARRIER FROM LIABILITY FOR LOSS OF SPECIFIED KIND does not exempt him from liability for such loss when it is the result of negligence: Bentley v. Bustard, 63 Am. Dec. 561; Graham v. Davis, 62 Id. 285; Camden & Amboy R. R. Co. v. Baldauf, 55 Id. 481, and note citing prior cases 485. The principal case is cited to the point that a contract limiting a common carrier's common-law liability cannot be pleaded by him as an exemption for any loss or damage resulting from his own negligence: Steele v. Townsend, 37 Ala. 251; S. C., Ala. Sel. Cas. 205; Indianapolis etc. R. R. Co. v. Cox, 29 Ind. 362; Ketchum v. American etc. Express Co., 52 Mo. 395. By entering into such a contract, the carrier does not change his character from that of a common carrier to that of an ordinary bailee; he is still liable for negligence, and he cannot, like an ordinary bailee, stipulate for exemption from responsibility for the negligence of himself or his servants: Railroad v. Lockwood, 17 Wall. 377, citing the principal case. But there are

cases which hold that a contract may change the common carrier's liability into that of an ordinary bailee: Kimball v. Rutland etc. R. R. Co., 62 Am. Dec. 567, note 574; note to Dorr v. New Jersey Steam Nav. Co., Id. 130.

BURDEN OF PROOF IS ON CARRIER TO SHOW, NOT ONLY THAT LOSS IS WITHIN TERMS OF EXCEPTION, but also that proper care and skill were exercised to prevent it: Graham v. Davis, 62 Am. Dec. 285, and citations in the note 294. Contra: See Sager v. Portsmouth etc. R. R. Co., 50 Id. 659. Upon the burden of proof where a passenger is injured, see note to Farisň v. Reigle, Id. 680-689. Proof of injury to glass by breakage, notwithstanding a contract releasing the carrier from liability for breakage of all kinds of glass, makes out a prima facie case of negligence against the carrier, and the onus is upon him to show the exercise of due care and vigilance on his part to prevent the injury: Ketchum v. American etc. Express Co., 52 Mo. 396, citing the principal case.

STATE V. NORTH-EASTERN R. R. Co.

[9 RICHARDSON'S LAW, 247.]

MANDAMUS IS PROPER REMEDY TO COMPEL RAILROAD COMPANY TO CONSTRUCT ROAD PURSUANT TO CHARTER in crossing navigable streams so as not to obstruct navigation, though indictment lies as for a nuisance. BULE THAT MANDAMUS WILL NOT BE GRANTED WHERE THERE IS SPECIFIC LEGAL REMEDY is restricted to cases where the legal remedy is equally convenient, complete, and beneficial,

MANDAMUS IS APPROPRIATE REMEDY TO ENFORCE PERFORMANCE OF DUTIES BY ARTIFICIAL BODIES.

MANDAMUS was granted to compel the removal of obstructions, placed in New Market and Vardell's creeks by the respondent railroad company in the construction of their road, and to proceed in crossing these streams pursuant to the provisions of their charter. The respondents contended below that the streams were not navigable, and that if it had committed a nuisance mandamus was not the proper remedy. The respondents appealed, relying upon the latter ground alone.

Martin, for the appellants.

Mitchell and Elliott, contra.

By Court, GLOVER, J. The appellants have abandoned all the grounds in support of their motion except the third, which submits that if they have committed a nuisance mandamus is not the proper remedy.

It is not necessary for the decision of this question to trace the writ of mandumus from its first institution to the present time, and to inquire how far it has been enlarged as a remedial process to advance justice and right. Its earliest application seems to have been suggested in aid of that clause of Magna

Charta which declares that nulli negabimus aut differemus justiciam vel rectum: Regina v. Heathcote, 10 Mod. 48. There never has been any disposition to abridge the use of the writ of mandamus in cases where it is applicable as a remedy either by the action of the courts or by the legislature.

The general doctrine so earnestly insisted on by the appellant's counsel, that where there is a specific legal remedy the writ will not be granted, or if granted, will be quashed, is fully sustained by reason, and by the authorities to which the court has been referred. But this general rule has been restricted to cases where the legal specific remedy is equally convenient, complete, and beneficial.

The writ of mandamus has always been regarded as an appropriate remedy to enforce the performance of duties by artificial bodies. In the case of Rex v. Bishop of Chester, 1 T. R. 396, Buller, J., says: "It is peculiarly the duty of this court to see that the powers created by the king's charter are properly exercised." How far an indictment is a specific remedy, was considered in the case of Rex v. Commissioners of Dean Inclosure, 2 Mau. & Sel. 80. The commissioners had neglected to obey an order of the sessions directing them to set out a road as a public road, and it was held that indictment would not be a specific remedy, that is, such as the case demands, for it was a proceeding in pœnam for the past, and not a remedy for the future. It is admitted that if indictment be equally convenient, beneficial, and effectual, and such as the particular case demands, the court will not grant the mandamus: Rex v. Severn & Wye Railway Co., 2 Barn. & Ald. 646. This is not the ordinary case of an obstruction placed in the highway, which may be abated as a nuisance by indictment, but the obstruction of a highway by a railway, and in the free use of both the public interest is involved. It is therefore important that in the application of a remedy public travel and transportation should not be stopped or checked, either on the highway or railway. "It ought to be the concern of a court of justice to take care that whilst they are granting a remedy to one they do not at the same time expose others to great inconveniences, and likewise that the remedy be such as may prove effectual:" Regina v. Heathcote, 10 Mod. 48. The relators do not require that the railway shall be destroyed, but that the corporation shall exercise the powers granted in the manner prescribed by their charter; not that they shall be punished by fine or otherwise, but that they shall do their duty to the public. This is a rea