Wolf v. American Express Co.

Wagner, Judge,

delivered the opinion of the court.

This was an action commenced by the plaintiff to recover damages sustained by reason of the freezing of Ms wine while in the charge and custody of the defendant. The facts are shortly these: The plaintiff delivered at New York, to defendant, a common carrier, a quantity of wine in casks and cases, to be transported and delivered to him at St. Louis. The wine arrived at East St. Louis on Saturday, the 31st day of December, 1863. At the time of its arrival the weather was severely cold, and, on account of the ice floating in the river, it could not be ferried across and delivered to the plaintiff. Defendant had it taken from the cars and stored on a platform, where it was exposed to all the severity and inclemency of the weather from Saturday evening till the next Monday or Tuesday, and while it was lying in this situation *425 it was badly frozen and greatly damaged in value. It is in evidence that wine properly stored or protected was not frozen or injured during the cold weather at that time. The only ground requiring any attention, relied on to exonerate the defendant, is that the cold weather which caused the freezing was the act of God, and therefore no liability resulted.

The liability of a common carrier has been often discussed and clearly defined. He is held to a very stringent responsibility. He is not only responsible for any loss or injury to the goods he carries which is caused by his negligence, but the law raises an absolute and conclusive presumption of negligence whenever the loss occurs from any other cause than “ the act of God or the public enemy.” Where no restriction is stipulated for, he is held liable as an insurer, and is responsible in that high degree of diligence commensurate with the duties he assumes. And his liabilities will extend to agencies which the violence of nature causes in consequence of his negligence or defective means. (Levering et al. v. Union Transportation and Insurance Co., 42 Mo. 88 .) Prof. Parsons, in his work on contracts, says: “We take the true definition of the ‘ act of God to be a cause which operates without any aid or interference from man. For if the cause of loss was wholly human, or became destructive by human agency and co-operation, then the loss is to be ascribed to man, and not to God, and to the carrier’s negligence; because it would be dangerous to the community to permit him to maké a defense which might so frequently be false and fraudulent.” (2 Pars. Cont. 159, 5th ed.)

. The act of God which excuses the carrier must not only be the proximate cause of the loss, but the better opinion is that it must be the sole cause. And where the loss is caused by the act of God, if the negligence of the carrier mingles with it as an active and co-operative cause he is still responsible. (Amies v. Stevens, 1 Stra. 128 ; Williams v. Branson, 1 Mur. 417 ; Williams v. Grant, 1 Conn. 487 ; Campbell v. Morse, Harp. L. 468 ; Clark v. Barnwell, 12 How. U. S. 272; New Brunswick L. Co. v. Tiers, 4 Zab. 697.)

After the damages to the goods have been established, the *426 burden lies upon the carrier to show that they were occasioned by the act or peril which the law recognizes as constituting an exemption, and then it is still competent for the owner to show that the injury might have been avoided by the exercise of reasonable skill and attention on the part of the persons employed in the conveyance of the goods. For then it is not to be deemed to be, in the sense of the law, such a loss as will exempt the carrier from liability, but rather as a loss occasioned by his negligence and inattention to duty. Therefore, although the loss occurs by the act of God or the public enemies, yet, if it might have been avoided by skill and diligence at the time, the carrier is liable. It is true that storms, thunder, lightning, and extreme cold, are all acts of God, but when these occur, and they directly act upon the goods in course of conveyance, it will be no justification to the carrier if loss or injury happen through his carelessness, neglect, or failure to exert reasonable diligence for their safety and preservation. The cold weather was not the sole nor entirely the proximate cause of the injury which happened to the wine by means of freezing. Had not the negligence and inattention of the defendant co-operated with the cold, the loss would not have taken place, nor the damage occurred. The carrier must not only exercise diligence, but he must use that degree of attention and care which the occasion and subject committed to his trust demand. What would be sufficient care in case of ponderous articles, not liable to be deteriorated by exposure, might be the most palpable neglect in case of costly and perishable goods. His acts and exertions must be commensurate with his duties. If, in consequence of his negligence or defective means, a loss occurs, springing out of the agencies which the violence of nature causes, he will not be excused.

I see nothing objectionable in the action of the court in giving or refusing instructions. The question of negligence was fairly submitted to the jury, and, they having found for the plaintiff, the judgment will be affirmed.

The other judges concur.