Jenkins vs. Picket.
A. delivered, to defendant, nrópeviy to be transported in hfa wagon; thé property was damdgéd. B. instituted a suit for the damage, and to prove property in himself, took the deposition of A. who stated the property wasB’s and that he acted as his agent, To support the testimony of A. the plaintiff proved by his attorney that he, had written to him to bring the suit; that the attorney had sent a commission to him to take testimony, &c. which wad done. The evidence of the attorney was objected td: Held lbat it was inadmissible.
A common carrier sent his wagon to Nashville with a load of cotton, the driver was a young negro who had never been allowed to make contracts for hauling, and who had never before been trusted with the wagon and team alone, and who was particularly instructed to bring home a load of salt, and not to receive goods of any kind for carriage, notwithstanding which, he did receive goods for carriage) and the goods were da maged: Held) that thé owner of the team was not iiable.
This was üil action brought against the defendant as a common carrier, to recover the value of some books, which were received for carriage and carried in his wagon from Franklin to Columbia.
The cause was twice tried in the circuit court of Maury county. Upon the first trial, the plaintiff below recovered a verdict for four hundred and forty dollars. This was set aside and a new trial granted. Upon the second trial, the plaintiff recovered a verdict for two hundred dollars, upon, which judgment was rendered. The plaintiff below excepted to the opinion of the court in setting aside the •verdict upon the first trial, and all the'evidence heard upon that trial is set out in the bill of exceptions.
*481The defendant also took a bill of exception to the opinion of the court in refusing to set aside the last verdict. It wholly unnecessary to make a statement of all the facts contained in the bills of exception. That part of it, on which this court based its opinion, is found in the testimony of William C. Crumbacker and Terry H. Cahal.
It was proved that the books were delivered to the slave of the defendant who was driving his wagon. The wagon was drove by a young slave who had not before been entrusted with the wagon and team to haul for others. The books on their carriage from Franklin to Columbia, were very much damaged.
Crumbacker stated in his deposition that the books damaged belonged to the plaintiff, J. W. Pickett, that he, as agent of Picket, sent the books from Franklin to Columbia in a wagon drove by a negro, who said he belonged to defendant.
T. H. Cahal proved that Crumbacker consulted with him as the agent of Pickett, and that Pickett had written to him to bring the suit for the injury done to the books; that he sent a commission to him, directed to Cincinnati, and that he took the deposition of Crumbacker, and that Crumbacker forwarded it to court.
’ The court amongst other matters, riot necessary to notice, charged the jury, “that if Jenkins had two black drivers, that it was immaterial whether he had ever trusted the younger driver to make contracts for him or not, if he sent him with his wagon and team, and he had been in the habit of hauling for other people.”
A. O. P. Nicholson, for plaintiff in error.
In admitting the evidence of T. H. Cahal to go before the jury, the court erred. That evidence consists entirely of acts and declarations of Crum-backer and Pickett, subsequent to the damage of the books. It was material for Pickett to show himself to .be the owner of the books. They were in the possession of Crumbacker and wer e prima facie his own property. The suit is brought in Pickett’s name, and to rebut the presumption of property in Crumbacker from his possession. The court permitted, the witness, Cahal, to detail to the jury what Crumbacker said to *482him after the cause of action arose, what he said to Crum-backer, what was done between himself and Crumbacker as Pickett’s agent, and all this in the absence of Jenkins. Witness was even permitted to tell the jury that Crumbacker said to him that Jenkins demanded pay, a circumstance deemed so material in the cause, that the court charged the jury, that “if Jenkins demanded pay, he was boüá'd.”' That the wit-nessyvent on to detail transactions between himself and'Pickett, such as the writing of letters, attending to taking proof, &c. not only after the cause of action arose, but after the institution of the suit. The whole of this- evidence is clearly hearsay; it can be regarded as no part of the res gestee, the facts stated tended in no degree to illustrate the issue, were in no wise connected with the transaction, but were independent facts, resting solely upon the credit of the witness. In other words, it- ⅛ evidence made by the party for his own benefit, by his own declarations and deeds, after his cause of action had arisen. 1 Stark. 44-, 47: 4 Yerg. 323: 7 Yerg. 258.
2. The next error insisted on, is this, that the judge below ought to have granted a new trial, because the termini of the carrier’s transportation- is not proved as alleged in the declaration. In both courts the defendant below is charged to have received the books at Franklin, in Williamson county, to be carried to Columbia. The only proof on this point is by Crumbacker, who says, the books were loaded in Franklin and shipped for Columbia. It does not appear whether they were loaded in Franklin in Williamson county, or in the^county of Franklin. Nor is there any thing in the record to show at what -place they were loaded-
'3. The next error insisted upon is' in the charge of the court below. This charge' confou&ds the liability of a common bailee for hire and of a common carrier. The liability of a common bailee for hire is well settled to extend no further than for ordinary diligence. The liability of a common carrier is equally well settled to extend to all losses or injuries, save by the acts of God or the enemies of the country.
In this charge the court fold the jury, that if Jenkins demanded carriage he is bound as a common carrier; thereby making his liability as a common carrier depend upon the fact *483of demanding carriage. Under this charge every man who takes goods in bis wagon becomes responsible for all losses, he demanded carriage. This is contrary to the doctrine laid 1-J J down in 2 Kent. 597: 2 Bos. and Pull. 416: Story on Bailment 298.
R. J. Meigs, for defendant in error,
assumed the following positions:
1. If the plaintiff in error had only sent his wagon once, and then on his own private business, and goods were forced upon the driver, he would not be liable as a common carrier. Story on Bailments § 495.
2. But if the wagoner was sent for one trip only, and he received goods to be delivered to a third person for hire, and the owner of the wagon demanded and received carriage, then he would be liable .as a cpmnjon carrier. Story on Bail-ments § 495.
3. He insisted, if the plaintiff had two black drivers, and he was in the habit of hauling for hire, it was immaterial whether he ever trusted the younger driver to make contracts for him or not; if he sent him with his wagon and team, he would he liable as a carrier. Story on Bailment § 495: 2 Kent Com. 690. The maxim is respondeat superior.
4. He contended that no question as to the property in the books could be raised, as the case was presented on the record. The jury had determined that question with all the evidence before them, and the court below was not dissatisfied with the verdict; besides, the bill of exceptions does not state that it contained all the evidence, so that this court cannot say that the jury were not warranted in determining that point as they have done.
5. There is no error in the charge of the court, as to the facts necessary to constitute a man a common carrier. 1 Wend. Rep. 272: 1 Pick. Rep. 50.
6. The court erred in granting a new trial after the first verdict, and this court, proceeding to render such judgment as the circuit court ought to have done, ought to give judgment on the first verdict.
T. H. Cahal, also appeared and argued on the same side.
*484
Turley, J.
delivered the opinion of the court.
This case has been submitted to the consideration of a jury-on two occasions in the court below. On the first, a verdict was rendered for the defendant in error for the sum of four hundred and forty dollars, which was set aside and a new trial granted. On the second, for the sum of two hundred dollars, for which judgment was given, to reverse which, this writ of error is prosecuted. To the granting a new trial on the first verdict, a bill of exceptions was taken, setting forth the proof upon which it was rendered, and it is now contended that the court erred in so doing, and that judgment on the finding ought now to be given by this court.
This is an action of trespass on the case, against one sought tobe charged as a bailee, for an injury done to property entrusted to his care. To enable the plaintiff to maintain it, it is necessary that he should show, not only, that there was an injury done, but also, that he had a general or special ownership in the goods charged to have been delivered to the defendant. To do this, the deposition of William C. Crumbacker was read, which stated that he was agent for J. W. Pickett, the plaintiff, in 1832, and had some books damaged, which had been sent from Franklin to Columbia in a wagon drove by a negro, who said he belonged to the defendant, Walter S, Jenkins; and also the testimony of Terry H, Cahal was heard, who stated “that the plaintiff had written to him to bring the suit for the injury done to the books, that he sent the commission to him, directed to Cincinnati, and that he took the deposition of Crumbacker and forwarded it to the court.” This testimony was objected to as illegal. The question then is, not whether the deposition of Crumbacker would of itself have been sufficient to support the verdict, but whether the testimony of Terry H. Cahal was illegal, and whether it be of a character which might have influenced the jury in their deliberations on the subject. That it was illegal, we cannot doubt; it purports to give a detail of a correspondence between the plaintiff in the action and his attorney. If it contain any thing pertinent to the matter in controversy, or which might be made to have an undue bearing on the jury, that it *485ought not to have been heard, is palpable. No rule of evidence is better settled or based on wiser principles, than that which says that no man shall give evidence for himself. To sustain the legality of this proof would be to destroy the rule. That the testimouy though not of itself sufficient to establish the right of property in the plaintiff, may in connection with Crumbacker’s deposition, have induced the jury so to find their verdict, is, we think equally clear. Crumbacker was a young man aged about twenty years, so far as the court can see, a stranger in the country. He had caused the books to be put on board the wagon of defendant; he bad attended to the transaction throughout, in this state, without declaring his agency, so far as the proof shows; his testimony was important to establish the fact as to sending the books in the wagon of the defendant, and the manner and circumstances under which it was done; this he could not prove, had he himself been the plaintiff. All these things were calculated to cast a shade over his testimony, and we cannot say what weight the jury might have given to it uncontradicted. But we can say that the testimony of an attorney of known standing and respectability, proving that he had corresponded with the plaintiff, and had been instructed by him to bring the suit, must have added great weight to it, especially when the court said upon the application to reject it, that it was a circumstance from which the jury might presume property in the plaintiff.
The court below then committed no error in setting aside the’verdict and granting a new trial; it would have been error, not to have done so.
The second question for consideration, is, whether the judgment on the last verdict can be sustained. On this point the'same remarks are to be made as on the first. Mr. Cahal’s testimony is] again heard, .and though there are other things contained in it, which are legal, yet that portion of it which says that Pickett had corresponded with him and had attended to the taking and forwarding dépositions, is subject to the same objections urged against his testimony as detailed in the first trial; and moreover, we think the charge is exceptionable. The court below says to the jury, ‘‘that if Jenkins had two black drivers, that it was immaterial whether he had ever trust-*486ec' l^'s younger driver lo make contracts for him or not if he sent him with his wagon and team, and had been in a habit o hauling for other people.” Now if by this charge, it is , 1 1 J . ° ’ meant that a common earner can never send his wagon and team upon his own business, under the care and management of a person who never has contracted for him, and is not au-thorised to contract for him, without having his estate endangered by being made to carry goods by the acts .of others, without his knowledge or consent, we deny the truth of the proposition, and this seems to be the design of the charge, which must have been intended to meet that part of the testimony, which shows that the driver of the wagon was a young negro who had never been allowed to make contracts for hauling, who had never before been trusted with a wagon and team alone, and who was on this occasion sent to Nashville with a load of cotton for the defendant, with particular instructions to bring home salt, and not to receive goods of any description for carriage.
The case will be reversed and remanded for a new trial.
Judgment reversed.