Albert Bailey v. Philip Stewart, 1 Rob. 410

Martin, J. The defendant is appellant from a judgment by which the plaintiff has recovered the value of a trunk of clothing, delivered to the defendant, a common carrier, for transportation, which was lost through the carelessness of the latter. He resisted the claim, pleading the general issue.

Our attention is first drawn to a hill of exceptions, taken hy the defendant to the reading of the depositions of Brady and Holmes, on the ground that they are interested witnesses, and that if they have been released, the evidence of the fact, results from their depositions only, which is not as good evidence of the fact as the release itself; and further, on the ground that they speak of what they have heard.

The court was of opinion that the plaintiff having established the release hy the testimony of the witnesses, they were effectually released, as the plaintiff could not gainsay what they had sworn, without admitting himself to have been guilty of subornation of perjury ; and the jury were directed to disregard that part of the depositions, in which the witnesses depose to what they had heard other people say. It does not appear to us that the court erred.

Another hill of exceptions was taken to a part of the judge’s charge, in which he directed the jury that a common carrier is responsible for the loss or damage of things entrusted to his care, unless the same is occasioned by accidental and uncontrollable events; and that no watchfulness or'care was sufficient to discharge the common carrier from liability for goods taken from his custody, unless he showed that they were taken hy an overpowering force.

A last bill was taken to the refusal of the judge to instruct the jury, that articles Nos. 2938 and 2939 of the Civil Code, which had been read to the jury, were not applicable as law to the case of common carriers. The court charged them, that

article 2938 was not applicable to common carriers, except in a modified manner, but that

article 2939 was applicable to them. The Civil Code, art. 2725, provides that carriers and watermen may be liable for the loss or damage of the things entrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrollable events. They are further subjected, art. 2722, to the same responsibilities as tavern-keepers, whose responsibility does not extend to what is taken hy force and arms, or with exterior breaking open of doors, or by any other extraordinary violence. Art. 2939. This

article contains a negative, pregnant with the affirmative that they are liable in other cases. It does not appear to us that in either case the judge erred ; but the decision of the question has no hearing on the present case, for the defendant has not produced the least tittle of evidence as to the manner in which the trunk was lost. During the trial, the defendant attempted to resist the claim against him, hy urging that the trunk was not delivered to him, but to one Shepherd, who had theretofore been employed to drive his wagon, but who, at the time that the trunk was placed on the wagon,'was not in his service, hut had hired the wagon, and was driving it for his own (Shepherd’

s) account. To this defence the jury does not appear to have paid the least attention, or to 'have given the least credit. And on a close examination of the testimony by which it was attempted to be supported, we are unable to say that they erred. At the trial, the plaintiff admitted that he had recovered a part of the goods in the trunk, of which he produced an account, amounting tp $128 50, for which he acknowledged the defendant was .entitled to a credit. The value of the goods originally in the trunk was proved, and the plaintiff had a verdict for the balance.

The defendant has contended in this court, that the plaintiff ought to have produced evidence of the goods recovered, and their value. If the defendant believed that the goods recovered were of a greater value than they were acknowledged to he by the plaintiff, he might have probed his adversary’s conscience by interrogatories. Upon the whole, we believe that justice has been done in the case. Judgment affirmed.