owing solely to the method of transportation, the carrier is not liable when the shipper himself specifically directed how the goods should be carried. 21 So, also, when the horse was killed in shipment owing to the intermeddling of the shipper in leaving a car window open.22 In like manner, when the shipper retains a measure of control over the goods, or accompanies the goods, either in person or through an agent, under an agreement to care for them, the carrier is not responsible for any loss or injury due solely to the shipper's negligent performance of the duties thus assumed by him.2

28

Public Authority

The carrier is, of course, subject to the police power of the state, and must yield obedience to the mandates of its courts. He is therefore properly excused for all resulting loss or damage when, in recognition of such sovereignty, he yields to the paramount public authority." It would be an absurd inconsistency for the law to require the carrier, out of respect for its authority, to give up the shipper's goods, and then to hold the carrier responsible in damages for obeying its express mandate.

Accordingly, when intoxicating liquors, or goods infected with contagious diseases, are seized and destroyed by the state under the police power, the carrier is not liable.25 The carrier, before

v. Chicago & N. W. R. Co., 37 Wis. 190; Rixford v. Smith, 52 N. H. 355, 13 Am. Rep. 42; Ross v. Troy & B. R. Co., 49 Vt. 364, 24 Am. Rep. 144; Betts v. Farmers' Loan & Trust Co., 21 Wis. 80, 91 Am. Dec. 460; East Tennessee, V. & G. R. Co. v. Johnston, 75 Ala. 596, 51 Am. Rep. 489. But see McCarthy v. Louisville & N. R. Co., 102 Ala. 193, 14 South. 370, 48 Am. St. Rep. 29; Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34, 52 N. E. 665, 70 Am. St. Rep. 432; Pennsylvania Co. v. Kenwood Bridge Co., 170 Ill. 645, 49 N. E. 215.

21 White v. Winnisimmet Co., 7 Cush. (Mass.) 155; Wilson v. Hamilton, 4 Ohio St. 722; Western & A. R. Co. v. Exposition Cotton Mills, 81 Ga. 522, 7 S. E. 916, 2 L. R. A. 102.

22 Hutchinson v. Chicago, St. P., M. & O. Ry. Co., 37 Minn. 524, 35 N. W. 433.

23 Gleason v. Goodrich Transportation Co., 32 Wis. 85, 14 Am. Rep. 716; South & N. A. R. Co. v. Henlein, 52 Ala. 606, 23 Am. Rep. 578; McBeath v. Wabash, St. L. & P. Railroad Co., 20 Mo. App. 445. See Bryant v. Southwestern Railroad Co., 68 Ga. 805.

241 Hutch. Carr. § 324; Kohn v. Richmond & D. Ry. Co., 37 S. C. 1, 16 S. E. 376, 24 L. R. A. 100, 34 Am. St. Rep. 726. This exception is universally recognized, though it is sometimes omitted in stating the exceptions to the carrier's common-law liability as an insurer. See, for example, Henry Bromschwig Tailors' Trimming Co. v. Missouri, K. & T. Ry. Co., 165 Mo. App. 350, 147 S. W. 175.

25 Wells v. Maine Steamship Co., 4 Cliff. 228, Fed. Cas. No. 17,401; Bliven Hudson River R. Co., 35 Barb. 191; Id., 36 N. Y. 407. The carrier is pro

yielding, however, should satisfy himself as to the authority of the officer seizing the goods.26 In like manner, the carrier is excused when the goods are taken from him by legal process, such as execution or attachment against the owner,27 sued out in an ordinary civil action, provided such process is fair on its face.28 When the goods are seized under public authority, or any legal proceedings are instituted against them, it is the duty of the carrier to give seasonable notice of such seizure or proceedings, if that is practicable, to the shipper or owner of the goods, in order that such shipper

tected if he yields to the paramount public authority, if it is de facto, whether or not it is de jure. Thus a yielding to the Confederate government was held an excuse. Nashville & C. Ry. Co. v. Estes, 10 Lea (Tenn.) 749.

26 Bennett v. American Exp. Co., 83 Me. 236, 22 Atl. 159, 13 L. R. A. 33, 23 Am. St. Rep. 774.

27 This subject is discussed at length in 2 Hutch. Carr. §§ 738–748. See Stiles v. Davis, 1 Black, 101, 17 L. Ed. 33; Bliven v. Hudson River Railroad Co., 36 N. Y. 403; Pingree v. Detroit, L. & N. R. Co., 66 Mich. 143, 33 N. W. 298, 11 Am. St. Rep. 479; Furman v. Chicago, R. I. & P. R. Co., 57 Iowa, 42, 10 N. W. 272; Id., 62 Iowa, 395, 17 N. W. 598; Id., 68 Iowa, 219, 26 N. W. 83; Id., 81 Iowa, 540, 46 N. W. 1049; Ohio & M. R. Co. v. Yohe, 51 Ind. 181, 19 Am. Rep. 727; French v. Star Union Transportation Co., 134 Mass. 288; Jewett v. Olsen, 18 Or. 419, 23 Pac. 262, 17 Am. St. Rep. 745; The M. M. Chase (D. C.) 37 Fed. 708; Savannah, G. & N. A. R. Co. v. Wilcox, 48 Ga. 432. But see Bingham v. Lamping, 26 Pa. 340, 67 Am. Dec. 418; McAlister v. Chicago, R. I. & P. R. Co., 74 Mo. 351; Mierson v. Hope, 2 Sweeny (N. Y.) 561. The remedy of the owner for an illegal seizure of his goods for the debt of another is not against the carrier, but against the officer making the seizure, or against the plaintiff, if he directed the seizure. Lawson, Bailm. 131; Stiles v. Davis, 1 Black, 101, 17 L. Ed. 33. But it has been held, in Massachusetts, that the carrier is not excused unless the proceedings be against the owner of the goods. Edwards v. White Line Transit Co., 104 Mass. 159, 6 Am. Rep. 213. See, also, Bingham v. Lamping, 26 Pa. 340, 67 Am. Dec. 418.

28 Merz v. Chicago & N. W. Ry. Co., 86 Minn. 33, 90 N. W. 7; Edwards v. White Line Transit Co., 104 Mass. 159, 6 Am. Rep. 213; Kiff v. Old Colony & N. R. Co., 117 Mass. 591, 19 Am. Rep. 429; Gibbons v. Farwell, 63 Mich. 344, 29 N. W. 855, 6 Am. St. Rep. 301; Savannah, G. & N. A. R. Co. v. Wilcox, 48 Ga. 432. But it was held in McAlister v. Chicago, R. I. & P. R. Co., 74 Mo. 351, that a regular writ, issued under a statute afterwards declared unconstitutional, was sufficient to protect the carrier. The carrier is liable if he surrenders to an officer without a warrant. Bennett v. American Express Co., 83 Me. 236, 22 Atl. 159, 13 L. R. A. 33, 23 Am. St. Rep. 774. "Whatever may be a carrier's duty to resist a forcible seizure without process, he cannot be compelled to assume that regular process is illegal, and to accept all the consequences of resisting officers of the law. If he is excusable for yielding to a public enemy, he cannot be at fault for yielding to actual authority what he may yield to usurped authority." Campbell, C. J., in Pingree v. Detroit, L. & N. R. Co., 66 Mich. 143, 33 N. W. 298, 11 Am. St. Rep.

or owner may take such steps as he may see fit to protect his interests.2

29

Inherent Nature of the Goods

The common carrier is not an insurer against losses caused by the inherent nature, vice, defect, or infirmity of the goods.30 Thus, the carrier, when not himself at fault, is not liable for the decay of fruit, the evaporation of liquids, the bursting of a hogshead of molasses due to fermentation, and the like. This exception from liability is said to rest on the same principle as the act of God, and, indeed, to be but an illustration of it. "Men are too apt to hear God in the thunder and storm, and ignore his existence in the still,

29 Thomas v. Northern Pac. Exp. Co., 73 Minn. 185, 75 N. W. 1120; Jewett v. Olsen, 18 Or. 419, 23 Pac. 262, 17 Am. St. Rep. 745; Bliven v. Hudson River Ry. Co., 36 N. Y. 403.

80 Lester v. Railway Co. [1903] 1 K. B. (Eng.) 878, 72 L. J. K. B. 385; Lawrence v. Denbreens, 1 Black, 170, 17 L. Ed. 89; Rixford v. Smith, 52 N. H. 355, 13 Am. Rep. 42; McGraw v. Baltimore & O. Ry. Co., 18 W. Va. 361, 41 Am. Rep. 696; R. E. FUNSTEN DRIED FRUIT & NUT CO. v. TOLEDO, ST. L. & W. RY. CO., 163 Mo. App. 426, 143 S. W. 839, Doble Cas. Bailments and Carriers, 196.

31 Currie v. Seaboard Air Line R. Co., 156 N. C. 432, 72 S. E. 493; R. E. FUNSTEN DRIED FRUIT & NUT CO. v. TOLEDO, ST. L. & W. RY. CO., 163 Mo. App. 426, 143 S. W. 839, Dobie Cas. Bailments and Carriers, 196; BEARD v. ILLINOIS CENT. R. CO., 79 Iowa, 518, 44 N. W. 800, 7 L. R. A. 280, 18 Am. St. Rep. 381, Dobie Cas. Bailments and Carriers, 199; Gulf, C. & S. F. Ry. Co. v. Levi, 76 Tex. 337, 13 S. W. 191, 8 L. R. A. 323, 18 Am. Rep. 45; Cragin v. New York Cent. R. R. Co., 51 N. Y. 61, 10 Am. Rep. 559; Louisville, N. O. & T. Ry. Co. v. Bigger, 66 Miss. 319, 6 South. 234; Illinois Cent. R. Co. v. Brelsford, 13 Ill. App. 251; The Howard v. Wissman, 18 How. 231, 15 L. Ed. 363; The Collenberg, 1 Black, 170, 17 L. Ed. 89; Swetland v. Boston & A. R. Co., 102 Mass. 276; Warden v. Greer, 6 Watts (Pa.) 424; Powell v. Mills, 37 Miss. 691; EVANS v. FITCHBURG R. CO., 111 Mass. 142, 15 Am. Rep. 19, Dobie Cas. Bailments and Carriers, 201. Peaches were delayed by an extraordinary freshet, and, as they showed signs of decay, the carrier sold them for the best attainable price, for the benefit of the owner. It was held, in an action for damages, that the carrier was not liable for the loss, as it was owing to the inherent qualities of the freight, that it was not bound to seek another route, and that it was justified in selling the property.

American Exp. Co. v. Smith, 33 Ohio St. 511, 31 Am. Rep. 561, and note. Where potatoes were wet when shipped, and decayed on the voyage, the carrier is not liable. The Howard v. Wissman, 18 How. 231, 15 L. Ed. 363. See, also, The Collenberg, 1 Black, 170, 17 L. Ed. 89; Brown v. Clayton, 12 Ga. 564. Where the leakage is from an inherent defect of a cask, the carrier is not liable. Hudson v. Baxendale, 2 Hurl. & N. (Eng.) 575. A carrier is not liable for loss of molasses caused by its fermentation and expansion, nor for leakage from secret defects in the casks. Warden v. Greer, 6 Watts (Pa.) 424. Nor where the fermentation of the molasses caused the cask to burst. Faucher v. Wilson, 68 N. H. 338,

38 Atl. 1002, 39 L. R. A. 431.

small voice of the calm. But the acts of God are not always cataclysms, and 'natural decay' may as reasonably be classed under this head as 'tempests' or 'lightnings.""" However, it is usual to treat this class of exceptions separately. This exception, as we shall see, is of unusual importance in shipments of live stock.

33

SAME-LIABILITY AS AFFECTED BY THE CARRIER'S NEGLIGENCE

117. Though, as we have seen, the liability imposed by law upon the common carrier of goods is that of an insurer, the question of the carrier's negligence is important in determining his liability:

(1) Under the excepted perils;

(2) When the carrier's relation to the goods is that of warehouseman;

(3) When the carrier has by special contract reduced his liability to that of an ordinary bailee for hire.

Excepted Perils

As is indicated in the black letter text under section 116, it is the duty of the common carriers to use reasonable care to avoid loss or injury, even from causes against which they are not insurers. Outside of the excepted perils, the common carrier of goods is an insurer and absolutely liable for all loss or damage. Within any of the excepted perils, the insuring liability falls away; but even here the duty of exercising reasonable care still remains with the carrier. The common carrier then escapes liability only when the loss or damage is due to an excepted peril without any concurring negligence on his part. This qualification is a general one applicable to all the excepted perils.

84

The qualification is of particular importance, however, in connection with the act of God. The common carrier must use reason

82 Wood, Browne, Carr. § 106.

38 Post, § 119.

84 Campbell v. Morse, Harp. (S. C.) 468 (attempt to cross a swollen stream with an insufficient team); Bell v. Reed, 4 Bin. (Pa.) 127, 5 Am. Dec. 398 (putting to sea in unseaworthy vessel). See, also, Nelson v. Great Northern Ry. Co., 28 Mont. 297, 72 Pac. 642; Jones v. Minneapolis & St. L. Ry. Co., 91 Minn. 229, 97 N. W. 893, 103 Am. St. Rep. 507; Ferguson v. Southern Ry. Co., 91 S. C. 61, 74 S. E. 129 (all of these cases involved an act of God); Holladay v. Kennard, 12 Wall. 254, 20 L. Ed. 390 (public enemy); McCarthy v. Louisville & N. Ry. Co., 102 Ala. 193, 14 South. 370, 48 Am. St. Rep. 29 (negligence of shipper); BEARD v. ILLINOIS CENT. RY. CO., 79 Iowa, 518, 44 N. W. 800, 7 L. R. A. 280, 18 Am. St. Rep. 381, Dobie Cas. Bailments and Carriers, 199 (inherent nature of goods).

able care, first, to avoid the act of God, and, next, if overtaken by such act, to minimize the loss resulting therefrom. If the carrier fail to exercise reasonable care or ordinary diligence in either of these respects, and the goods are damaged by an act of God, the carrier's negligence is treated as the proximate cause of such damage, and the carrier is accordingly held liable." Thus, if the carrier is negligent in exposing the goods to the act of God, as where he puts to sea in an unseaworthy vessel, or attempts to cross a swollen stream after sundown with an insufficient team," he is liable for the resulting loss. Again, though overtaken by the act of God, without any negligence on his part, the carrier must use ordinary care to render the loss as light as possible; and, if he is negligent in not doing so, he is liable for all losses which he might, by the exercise of reasonable care, have prevented.38

86

Precisely similar considerations obtain as to the public enemy. The carrier remains liable for goods captured by the public enemy when, by the exercise of reasonable care, the capture could have been avoided." Thus, if the carrier, with the choice of two

85 See cases cited in first part of preceding note. See, also, Wolf v. American Express Co., 43 Mo. 421, 97 Am. Dec. 406; Pruitt v. Hannibal & St. J. R. Co., 62 Mo. 527; Davis v. Wabash, St. L. & P. R. Co., 89 Mo. 340, 1 S. W. 327; Elliott v. Russell, 10 Johns. (N. Y.) 1, 6 Am. Dec. 306; Adams Exp. Co. v. Jackson, 92 Tenn. 326, 21 S. W. 666; Grier v. St. Louis Merchants Bridge Terminal Ry. Co., 108 Mo. App. 565, 84 S. W. 158; Jones v. Minneapolis & St. L. Ry. Co., 91 Minn. 229, 97 N. W. 893, 103 Am. St. Rep. 507; Ferguson v. Southern Ry. Co., 91 S. C. 61, 74 S. E. 129.

36 Bell v. Reed, 4 Bin. (Pa.) 127, 5 Am. Dec. 398. Or when the carrier negligently exposed the goods to a flood, warning of which had been duly given. Wabash Ry. Co. v. Sharpe, 76 Neb. 424, 107 N. W. 758, 124 Am. St. Rep. 823. 87 Campbell v. Morse, Harp. (S. C.) 468.

88 Craig v. Childress, Peck (Tenn.) 270, 14 Am. Dec. 751; Day v. Ridley, 16 Vt. 48, 42 Am. Dec. 489. The carrier need exercise only reasonable care. Nashville & C. R. Co. v. David, 6 Heisk. (Tenn.) 261, 19 Am. Rep. 594; Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695; Memphis & C. R. Co. v. Reeves, 10 Wall. 176, 19 L. Ed. 909; Black v. Chicago, B. & Q. R. Co., 30 Neb. 197, 46 N. W. 428; Gillespie v. St. Louis, K. C. & N. R. Co., 6 Mo. App. 554; Nugent v. Smith, 1 C. P. Div. (Eng.) 423; The Generous, 2 Dods. (Eng.) 322. But see The Niagara v. Cordes, 21 How. (U. S.) 7; King v. Shepherd, 3 Story, 349, Fed. Cas. No. 7,804. See, also, Smith v. Western Ry. of Alabama, 91 Ala. 455, 8 South. 754, 11 L. R. A. 619, 24 Am. St. Rep. 929; Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 475, 24 L. Ed. 256; Blythe v. Denver & R. G. R. Co., 15 Colo. 333, 25 Pac. 702, 11 L. R. A. 615, 22 Am. St. Rep. 403; Baltimore & O. R. Co. v. Sulphur Spring Independent School Dist., 96 Pa. 65, 42 Am. Rep. 529; Denny v. New York Cent. R. Co., 13 Gray (Mass.) 481, 74 Am. Dec. 645; Collier v. Valentine, 11 Mo. 299, 49 Am. Dec. 81. Where goods are wet by a storm, the carrier must open and dry them. Chouteaux v. Leech, 18 Pa. 224, 57 Am. Dec. 602.

39 Forward v. Pittard, 1 Term R. (Eng.) 27; Parker v. James, 4 Camp