Dean v. Swoop 2 Binn. 72

Dean against Swoop.

Sunbury, Friday, July 14.

IN ERROR.

In an action against a common carrier by water, (for the loss of the plaintiff’s goods, where the defence is set up that carriers by water are by custom answerable for loss only in case of negligenpe, it is not competent to the defendant to give in evidence, that in a case where the plaintiff had acted as a common carrier, he had refused to make compensation for a loss.

WRIT of error to the Common Pleas of Huntingdon county.

The action below was against Swoop as a common carrier, to recover damages for the loss of the plaintiff’s goods, which he undertook to carry for hire from a place on the Juniata to Columbia. The cause was tried under the general issue, and upon the trial, as it appeared by the bill of exceptions, the defendant offered to give in evidence, “ the opinion of a “ certain witness as to the custom of the country, and the “ carrying trade on the river Juniata, and the general under-*73u standing and belief of the country, as to the liability of car- “ riers by water.” He also offered to prove, “ that the plain-' “ tiff and a certain Moses MiIlvaine as partners, had a boat “ loaded in part with the property of others, which boat was “ wrecked, and the property in part lost; and that the firm of “ Dean and M^Ilvaine refused to compensate, and did not “ compensate those whose property was thus injured or lost.” In both instances the court admitted the evidence, notwithstanding the objections of the plaintiff, who tendered a bill of exceptions. The jury found for the defendant.

*72<$haere, whether carriers by water on the Juniata &c., are answerable in the same degree as common carriers by the law of England.

*73What was the tendency of the evidence first offered, did not appear by the record; but it was understood to be, that carriers by water were answerable for such losses only as were occasioned by their own negligence.

S. Riddle {or the plaintiff in error,

argued that the evidence first objected to was inadmissible, because its object was to set up the opinions of witnesses against the settled law of the land. The law of England in relation to common carriers, he said was the law of Pennsylvania; it had been adopted in. practice, and it was sanctioned by the soundest policy. The degree of a carrier’s liability was of the essence of his office. He might accept specially as to value, or as to the quality of the thing carried; but take from him his liability for every thing but inevitable accident, and the act of a public enemy, and he was no longer a common carrier, but a mere bailee; in which case, the proof of negligence lying exclusively in his own power, all those frauds against which the common law has established so complete a barrier, might be practised beyond the possibility of detection. Hence it was a maxim that every carrier for hire was a common carrier, unless there was a special exception in the contract, Coggs v. Bernard (a); and to the contract alone the court should have looked for the extent of the defendant’s liability in the present case.

Riddle was here .stopped by the court, who desired the defendant’s counsel to speak to the second exception..

*74Huston and Duncan

then argued that the evidence last admitted was proper, because it went to prove the opinion of the plaintiff himself, with regard to the custom for which the defendant contended. The whole case turned upon the existence of a custom in relation to carriers by water, varying from the law of England. This custom was to be proved by witnesses intimate with the subject, by their opinions understanding and belief founded upon this intimacy, and by their practice in cases to which the custom applied; the practice of the plaintiff was therefore a recognition of the rule, and corroborated the testimony before given. The material ¡joint was then the admission of the testimony first offered; for if it was correct, the acts of the plaintiff in confirmation of it, were evidence. As to the existence of the custom, it might be remarked that the verdict of the jury established it; but where could be the objection to it upon principles. A common carrier might limit his own liability by special provision, and take his case out of the general rule. Bull. N. P. 71. Gibbon v. Paynton (a). He is liable on account of his reward. It might as well therefore be the object of a particular custom to limit his liability, and by so doing, to diminish his reward, as the object of a special contract. The restriction of the custom to water carriers in a certain part of the state, was no objection to it. A custom might apply only to a certain description of men; as the custom of the way-going crop among.farmers, Wigglesworth v. Dallison (b); it might apply to a particular county, Furneaux v. Hutchins (c); and in these cases the particular custom would control the general rule. Peak's Ev. 319. The admission of the evidence was the more proper, because it was not known that there had ever been a decision in Pennsylvania, upon the liabilityof carriers by water. [Yeates J. In Lea v. Stroud, before M'Kean Chief Justice and mv'self in Northumberland county, the plaintiff recovered upon the principles of the common law, on a carrying by water.]

Piddle

answered that the plaintiff’s act was not evidence, even by the defendant’s argument, because the evidence was simply that he had refused to pay a loss. There might *75have been a special contract, and a variety of circumstances to justify the refusal upon the ground of the common law.