Stockton Lumber Co. v. California Navigation & Improvement Co.

CHIPMAN, P. J.

This is an appeal by defendant from an order granting plaintiff’s motion for a new trial.

The action was to recover the value of certain lumber received by defendant to be transported by defendant’s barge, under tow by steamer, from the bay of San Francisco to the city of Stockton. The lumber was in the schooner “Georgina,” lying off the shore of the bay. Defendant moored its barge “Era” alongside of the schooner and defendant had received on board the “Era” about two hundred thousand feet of lumber when the barge parted from the schooner, and a loss of one hundred and thirty-eight thousand feet, valued at $2,723.26, resulted, and hence this action.

That defendant was a common carrier, and as such had agreed to carry the lumber from the schooner “Georgina” to its point of destination, appears without conflict, and nothing in the agreement appeared which changed its liability as a common carrier as defined by section 2194 of the Civil Code. The agreement was oral by which defendant agreed to deliver

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the lumber at Stockton for a stated compensation, but no bill of lading was issued. The considerations which moved the learned trial judge to grant the new trial are clearly stated by himself, and we quote from his written opinion found in respondent’s brief. A very satisfactory conception of the points in the case will also thus appear:

“The case was tried before a jury, and a verdict was rendered for defendant. The plaintiff now moves for a new trial, and I think its motion should be granted upon the ground that the verdict is against law.

“The defendant, as a common carrier, had undertaken to carry and deliver the lumber of the plaintiff to its point of destination. Under the provisions of the Civil Code the defendant, as such carrier, could only excuse the performance of this undertaking by proof that the loss in question resulted from an inherent defect in the article shipped, or by the act of a public enemy of the United States, or of the state, or an act of the law, or from any irresistible or superhuman cause.

“The defendant’s answer in substance pleads, first, that the barge which had been attached to the schooner had been cut adrift; second, that the southeasterly wind came up and caused the barge to part from its moorings and drift; and, third, that, without fault of defendants, but in consequence of the fault of the crew of the ‘Georgina,’ the lumber in question was lost. In my opinion, the point upon which this case must turn is the defense of ‘irresistible or superhuman cause.’