
    Gould and others vs. Hill and others.
    Common carriers cannot limit their liability, or evade the consequences of a breach of their legal duties as such, by an express agreement, or special acceptance of the goods to be transported.
    Accordingly, where common carriers, on receiving goods for transportation, gave the owner a memorandum by which they promised to forward the goods to their place of destination, danger of fire, <f-c. excepted; held, that they were liable for a loss by fire, though not resulting from negligence.
    Error to the superior court of the city of New-York. The action in the court below was case, against Hill and others, the defendants in error, as common carriers, for the value of certain goods delivered to them to be transported from New-York to Philadelphia, but which were alleged to have been lost on their passage. On delivering the goods in question to the defendants, they gave the plaintiffs a memorandum which stated, among other things, the receipt of the goods, and then proceeded thus: “ which (goods) we promise to forward, (idanger of fire, (fie. excepted, and not holding ourselves responsible if lost, stolen or damaged, beyond the value of $200, &c.) to A. M’C. in Philadelphia.” The goods were destroyed by fire on their passage; and evidence was given tending to show that the loss was not occasioned by the negligence or want of care of the defendants. The court charged the jury that, under the receipt produced, the defendants were only chargeable for a loss resulting from negligence. The plaintiffs excepted, and the jury rendered a verdict for the defendants. After judgment, the plaintiffs sued out a writ of error.
    
      D. Graham, jun. for the plaintiffs in error.
    S'. P. Staples, for the defendants in error.
   By the Court,

Coaven, J.

In this case the common carriers, instead of alleging a general notice restricting their liability to the plaintiffs and all others,, furnished them with a special acceptance in writing, which they received, and delivered the goods accordingly. This constitutes undoubted evidence of assent on their part. One exception Avas, of casualties occasioned by fire; and the loss arose from that cause. The servants of the defendants were called as witnesses to make out a case of care ; and' the jury, under the charge of the court, allowed this as a defence.

For myself, I shall do little more than refer to my opinion in Cole v. Goodwin, (19 Wend. 281,) and the reasons for such opinion as stated in the course of that case. It was to the effect, that I could no more regard a special acceptance as operating to take from the duty of the common carrier, than a general one. I collect what would be a contract from both instances, provided it be laxvful for the carrier to insist on it; and such is the construction which has been given to both by all the courts. The only difference lies in the different kinds of evidence by which the contract is made out. When the jury have found that the goods were delivered with intent to abide the terms of the general notice, I understand a contract to be as effectually fastened upon the bailor as if he had reduced it to writing. Indeed, the contrary construction would, I think, be to tolerate a fraud on the part of the bailor. The true ground for repudiating the general notice, is, therefore, its being against public policy; and this ground goes not only to the evidence—the mode in which you are to prove the assent—but to the contract itself. After forbidding the carrier to impose it under the form of a general notice, therefore, we cannot consistently allow him to do the same thing in the form of a special notice or receipt. The consequences to the public would be the same, whether we allow one form or the other.

Common usage is, in like manner with a general notice, also evidence; and may be urged, in a proper case, as the foundation for modifying contracts. It always com.:s in upon that principle when it is received at all. Yet being offer-o ed to limit the liability of packet owners, plying between New-York and Boston, to cases of neglect, it was met by Mr. Justice Story, with the following among other remarks: To admit the evidence “ would be to hold out to packet masters a premium for indifference, or carelessness, or want of vigilance in protecting the shipments confided to their care. I cannot but deem every relaxation of the common law, in relation to the duties and responsibilities of the owners of carrier ships, to be founded in bad policy and detrimental to the general interests of commerce.” (The Schooner Reeside, 2 Sumn. 567, 575.) The question before us has recently been considered, but not decided, by the supreme court of Pennsylvania. (Atwood v. The Reliance Transportation Company, 9 Watts, 87.) The reasoning of Gibson, Ch. J. who delivered the opinion, goes to confirm the views which I have expressed.

I am of opinion that the judgment of the court below should be reversed.

Nelson, Ch. J. dissented.

Judgment reversed. 
      
       See Wyld v. Pickford, (8 Mees, Weis. 443.)
     