COLE v. GOODWIN AND STORY, (commonly cited COLE v. GOODWIN.)

Supreme Court of the State of New York, May, 1838, (19 Wend. R. 251.)

Opinion of the Court by Cowen, J.

Respecting the power of common carriers to limit their Common Law liability as to the safety of the goods, by notice; and of their power by notice to require the owner of the goods to state the nature or value of the property.

THIS, like the preceding case of Hollister v. Nowlen, was an action against coach proprietors for the loss of the plaintiff's baggage, and the principal question arose out of the notice given by the defendants, "ALL BAGGAGE AT THE RISK OF THE OWNER." The opinion delivered by Mr. J. BRONSON, in Hollister v. Nowlen, rendered it, he considered, unnecessary for him to examine the principal question, which is elaborately discussed by Mr. J. Cowen, as follows:

But the more effectually to secure impunity for absolute carelessness, the defendants gave notice, that all baggage was at the risk of the owner. This, taken literally, is another mode of fastening all the duty on the passenger, exactly inverting the obligation imposed by law. It is saying, "I like your passage money and the emoluments of my public employment as a common carrier of passengers and their baggage. I will take my reward, but choose to consult my convenience and safety in the measure of responsibility." If the carrier have the legal power to restrict any branch of his liability, either by special contract or notice, it is certainly important to inquire, looking at the consequences, whether such power be arbitrary and illimitable. If it be, there is no end to this kind of encroachment; and the passenger may as well be required

to risk his limbs or his neck.

All must agree with what was said on the argument, that a man may become a common carrier or not, at his option; and that he may limit his office to the carrying of persons or goods, as he

pleases, and at such general prices as he may choose to charge. 2 Kent's Com. 598, 3d ed. But his office as a common carrier once becoming fixed, and his line of travel, subjects of carriage, and prices established, it is much more questionable whether, in respect to passengers or goods which are fairly committed to him, he can qualify his public duty. It is agreed by all the books, that while he enjoys the privileges of a common carrier, there are certain duties pertaining to that office, which he cannot escape in any form. In the first place, he is bound to receive passengers and goods, if he have room, and carry them for a reasonable reward, which may set down as the accustomed reward for like services. 2 Kent's Com. 598, 3d ed., and cases there cited in note f.; per Mansfield, C. J., and Lawrence, J. in Harris v. Packwood, 3 Taunt. 271, 272; per Best, C. J. in Riley v. Horne, 5 Bing. 217; 2 Moore & Payne, 331, 338, S. C.

It is equally well settled that he cannot, either capriciously in a single instance, nor by public notice seen and read by his customer, nor even by special agreement, exonerate himself from the consequences of gross neglect. Per Best, C. J. in Riley v. Horne, 5 Bing. 218; 2 Moore & Payne, 331, 341, S. C.; Sleat v. Fagg, 5 Barn. & Ald. 342; Wright v. Snell, Id. 300; Birkett v. Willan, 2 Barn. & Ald. 356; Beck v. Evans, 3 Camp. 267; 16 East, 244, S. C.; Bodenham v. Bennett, 4 Price, 31; Smith v. Horne, 8 Taunt. 144; 2 Moore, 18, S. C.; Newborn v. Just, 2 Carr. & Payne, 76.

It is said in the Doct. and Student, Dial. 2, ch. 38, p. 224 of Machall's ed.: "If he [the carrier] would per case refuse to carry it unless promise were made unto him, that he shall not be charged for no misdemeanor that should be in him, the promise were void; for it were against reason and against good manners; and so it is in all other cases like." In Noy's Maxims, 92, it is said, "If a carrier would refuse to carry unless a promise were made to him that he shall not be charged with any such miscarriage, that promise is void." Gross negligence is in general a species of fraud, though it may not be always so. Story on Bailm. 13, § 19 to 22. And an agreement giving direct countenance to a fraud would be contrary to public policy. It is equally well settled that a special agreement, or, which is the same thing, a notice seen and acted upon by the owner of goods, will not protect the carrier against the conse

quences of the malfeasance or misfeasance of himself or his servants, as if they convert the goods, or make a wrong delivery. Story on Bailm. 365, § 570, and the cases there cited. Beck v. Evans, 16 East, 244. Indeed, all this would be so, could we suppose the carrier's obligation brought down to that of a mere mandatary.

Passing below gross neglect and misfeasance, the balance of opinion in Westminster Hall would seem to be that the liability of the carrier may be dispensed with. Story on Bailm. 365, § 571, and cases there cited. I think Low v. Booth, 13 Price, 329, may be set down as a direct adjudication, that ordinary neglect may be provided against by the parties.

But the great question is, under what limitations may the parties provide for a reduction of the liability? For one, I hardly feel warranted to interpose a general denial that the extraordinary responsibility of the common carrier may be taken away by the joint act of the parties; and such I take a proper notice to be if known to the bailor. I agree that there is no adjudication of a date so ancient, that we are obliged to respect it as authority, giving the common carrier a right to take a fair reward for the carriage, and yet acquit himself of his obligation as such. Admitting the doctrine of notice to have that effect, and to be as old as Forward v. Pittard, 1 T. R. 27, as was said by Burrough, J. in Smith v. Horne, 8 Taunt. 144, 146; 2 Moore, 18, 22, S. C.; yet we are carried back no farther than 1785, about ten years after the revolution. And even so soon after, we find the learned Judge adding : — " It cannot but be lamented that such notices have ever been used, and recognized as a protection to carriers, to divest them of their responsibility." 2 Moore, 22. If he meant a general and arbitrary power of protection, I think every one must concur with him; but if he is to be understood as speaking to the extent of the case before him, it appears to me that the notice was very properly allowed to avail, both upon principle and authority. It was thus: — "that they (the carriers) would not hold themselves accountable for cash, writings, or any article above the value of £5, unless entered and paid for according to its value, when delivered to their agents. 2 Moore, 19; more briefly 8 Taunt. 144, 145. I am inclined to think, by what fell from Park, J. in the same cause, that both he and Burrough, J., must have alluded to the disposition of

carriers to extend their protection by notices beyond the principle on which they were originally allowed. Park, J. said: "The indulgence given to carriers by limiting their responsibility by the notices usually affixed in their offices, has occasioned great public inconvenience. The Courts have lately been inclined to restrain them." 2 Moore, 21, 22. And they determined that even this, the usual and allowed notice, should not protect the defendants against gross negligence.

To appreciate in a proper manner the particular notice in question, it is necessary to advert briefly to the relative obligation of the carrier and owner. The former is an insurer against loss by any event except the act of God, (now holden to be synonymous with inevitable accident,) or the enemies of the republic. Per Holt, J. in Coggs v. Bernard, 2 Ld. Raym. 918; Forward v. Pittard, 1 T. R. 27, 33. To this may be added another exception; a loss by the fraud, and perhaps the gross neglect of the owner in a case where he owes a duty. Bradley v. Waterhouse, 3 Car. & Payne, 318; Whalley v. Wray, 3 Esp. N. P. C. 74. It follows, that the obligation of the owner is like that of other persons who cause their property to be insured. He must act in good faith, and at least, if he speak at all, give a correct account of every circumstance peculiarly within his own knowledge, which is material to the risk which the insurer incurs, according to the legal nature of his engagement. The case of Kenrig v. Eggleston, Aleyn, 93, was very severe upon the carrier. The plaintiff delivered a box to the carrier's porter, telling him there was a book and tobacco in it; in truth it contained £100 besides. The whole was lost, and the carrier held liable for the money. "It was agreed by the counsel, and given in charge to the jury, that if a box with money in it be delivered to a carrier, he is bound to answer for it if he be robbed, although it was not told him what was in it. And so it was ruled in one Barcroft's case, as Rolle said, where a box of jewels was delivered to a ferryman, who, knowing not what was in it, and being in a tempest, threw it overboard into the sea; and resolved that he should answer for it." Rolle finally directed, "that although the plaintiffs did tell him of some things in the box only, and not of the money, yet he must answer for it; for he need not tell the carrier all the particulars in the box. But it must come on the carrier's part to make special acceptance." He left the question

of the intended cheat to the jury to consider in damages; and they found the whole £100, deducting £3 for carriage. It is indeed not surprising, as added by the reporter, "quod durum videbatur circumstantibus." The general principle laid down in this case as derived from Barcroft's, so far from having been ever questioned, has been repeatedly affirmed, though it has been thought to have been there wrongly applied, inasmuch as there was evident artifice made use of to disguise the fact of there being money in the box. This case was decided in 24 Car. I. See per Best, C. J. in Riley v. Horne, before cited. There is a still stronger case against the carrier cited by Hale in Morse v. Slue, 1 Vent. 238.

In the case of Tyly v. Morrice, 11 Wm. III., Carth. 485, the plaintiffs' servant delivered to the defendant's book-keeper £450 in two sealed bags, and told him it was £200, which the bookkeeper receipted in writing as "two bags of money sealed up, said to contain £200." The whole being lost by a robbery, the carrier paid £200, and the plaintiffs sued for the balance on the authority of Kenrig v. Eggleston. The Court distinguished the case, and confined the plaintiffs' claim to what had been paid, "Because there was a particular undertaking by the carrier for the carriage of £200 only, and his reward was to extend no farther than to that sum, and it is the reward which makes the carrier answerable; and since the plaintiffs had taken this course to defraud the carrier of his reward, they had thereby barred themselves of that remedy which is founded on the reward." The case of Fitchburne v. White, 5 Geo. I., Feb. 16th, 1718, is thus reported in 1 Str. 145. "Per King, Ch. J. If a box is delivered generally to a carrier, and he accepts it, he is answerable, though the party did not tell him there is money in it. But if the carrier asks, and the other says no, or if he accepts it conditionally, provided there is no money it, in either of these cases, I hold the carrier is not liable." Aleyn, 93, is cited as authority. The case of Gibbon v. Paynton, 4 Burr. 2298, approves of the general doctrine in Kenrig v. Eggleston, but thinks it misapplied. I have noticed these cases, and some of them at large, as showing, 1. that the carrier is liable in respect to his reward; but 2. that to raise in the law a respect to his reward, he must make a special acceptance, or at least inquire and obtain a positive representation. It follows, that if the plaintiff either answer untruly, or on request