(dissenting). This is an action against the defendant, as common carrier, to recover damages for its failure to carry safely, and deliver in Detroit, a quantity of boots and shoes.
The cause was tried in the Wayne circuit, before Judge Chambers, without a jury. The parties, by their attorneys, agreed upon the facts, and in accordance therewith they were found by the court, and upon which the learned judge found, as a question of law, the plaintiffs were’not entitled to recover, and judgment was entered against plaintiffs for costs. The case is now before us, on error, for review.
*146The following is the substance of the material facts found by the court, viz.: On the twelfth day of August last, plaintiffs delivered to defendant, at Edmore, certain goods, to be delivered to plaintiffs at Detroit. Defendant carried the same safely to Stanton, Montcalm county; and, on the arrival of the goods there, they were seized and taken from defendant by the sheriff of Montcalm county, as the goods of F. M. Butts et al., by virtue of a writ of attachment issued out of the circuit court for that county in a suit wherein J. W. Fuller et al. were plaintiffs, and Francis M. Butts et al. were defendants, and to which suit plaintiffs were in no manner parties. The writ under which the sheriff acted was a good and valid one, and the seizure made by him was without the consent, connivance, or procurement of defendant. ■ Defendant at once notified plaintiffs of the seizure of said goods and the return-day of said writ, to which plaintiffs made no reply except to offer to assign to defendant whatever claim they might have against the sheriff.
The defendant was a common carrier of goods at the time it received the plaintiffs’ property for transportation, and had no knowledge of the true owner of the goods, or of the title or possession of the same, prior to the time of the delivery to it. The value of the goods was $899.85.
The said Butts delivered to Pingree & Smith, above-named plaintiffs, to secure payment of $801.78, a bill of sale of a stock of goods, including those in question, on the fourth day of August aforesaid, and thereafter, on the fifth day of August, Butts claimed to have sold the stock to W. C. Steere, of Stanton, who took possession of the same.
The plaintiffs, claiming the sale to Steere to be fraudulent, brought replevin in the Montcalm circuit against him for sufficient of said goods to satisfy their claim. Said writ was valid, and the goods taken thereon were delivered to the plaintiffs, and were the same goods delivered by them to the defendant for carriage from Edmore to Detroit.
*147On the arrival of the goods at Stanton, the goods were attached by the sheriff of Montcalm county, as the property of the Butts, by J. W. Fuller et al., as plaintiffs in the writ, and in which suit the plaintiffs herein were not parties; and the goods in question were taken upon this writ by the sheriff from the defendant. Defendant has never since become repossessed of the goods, nor have they ever been tendered back to defendant.
Upon the foregoing facts the plaintiffs claimed they were entitled to recover. The court held otherwise.
This suit was commenced on the fifteenth day of September, 1886, and about a month after the plaintiffs claim the goods should have been delivered to them by the defendant, and was tried and judgment rendered in December following. What became of the attachment suit does not appear, or that the plaintiffs therein had any title whatever to the goods in question. ' The plaintiffs in this suit had possession of the property, and claimed to be the owners thereof, and as such gave it into the custody of the defendant carrier for transportation to Detroit. It was its duty to carry the goods, and deliver them at its depot in that city to the plaintiffs, or to their order The common-law liability of a carrier of goods is fixed and definite, and is the liability recognized in this State. Carriers of freight are liable, whether they are careful or not, for any act of omission or damage not caused by the act of God or of the public enemy. Michigan Cent. R. R. Co. v. Ward, 2 Mich. 538; Michigan Cent. R. R. Co. v. Hale, 6 Id. 261; McMillan v. Michigan Southern & N. I. R. R. Co., 16 Id. 79; Grand Rapids & I. R. R. Co. v. Huntley, 38 Id. 546.
The statutes of our State subject the defendant receiving freight for transportation, to the liability of common carriers ; and the company is not permitted to lessen that liability, except by a written agreement to that effect signed by both' parties. How. Stat. § 3328 ; McMillan v. Michigan *148Southern & N. I. R. R. Co., 16 Mich. 79; Michigan Southern & N. I. R. R. Co. v. Shurtz, 7 Id. 515; Buckley v. Great Western Ry. Co., 18 Id. 121; Cleveland & T. R. R. Co. v. Perkins, 17 Id. 296.
While the carrier is in possession of the consignor’s goods he is clothed with all the power and authority to protect and preserve them that the owner himself would have, and, while the goods are in transit, it is his duty to use all the means that human agency can command to give such protection; and it is only after such means are exhausted, can he be heard in his defense against the liability the common law casts upon him if injury or damage ensue.
In this case the' court finds that the goods in question were taken by the sheriff of Montcalm county without the consent, connivance, privity, or procurement of the defendant, and that it immediately notified the plaintiffs of the seizure; but this is not enough to exculpate the defendant from liability, under the facts found. There is no pretense that the writ under which the sheriff acted ran against the defendant, the consignors, or this property, nor yet against the latter’s vendor of the goods. It does not appear that he was directed by the writ to levy it upon any specific property in the custody of defendant or of the consignors. Prima facie, he had no more right to enter the car and take these goods than had any other trespasser. It appears from the record that the defendant knew nothing in regard to the title to the property more than what it obtained from the consignors; and it nowhere appears that the defendant was informed by the sheriff, or any other person, upon what ground theplaint- ■ iffs in the writ, or himself, claimed the right to seize the property. I still adhere to the doctrine stated in Gibbons v. Farwell, 63 Mich. 344, and, so far as it has any bearing upon this case, it is against the defendant.
Chief Justice Campbell, in Grand Rapids & I. R. R. Co. v. Huntley, 38 Mich. 546, says:
*149“ The common carrier’s liability, therefore, does not arise from negligence or want of care. It arises from their failure to make an absolutely safe carriage and delivery which they insure by their undertaking.”
And in the case of Michigan Cent. R. R. Co. v. Hale, 6 Mich. 261, it is said:
“ In the absence of any contract, the law imposes upon the carrier the extraordinary liability of insurer against all loss, unless occasioned by the act of God or the public enemy; and this becomes the terms of transportation, and may be called the contract of the parties, arising immediately upon the delivery of the property for carriage.”
The sheriff who took this property from the defendant had no more right, so far as this record shows, to'take the same, than any other citizen of Montcalm county. The defendant suffered the property to be taken from the carrier by a trespasser, and this brings the case clearly within the liability of the undertaking, and entitles the plaintiffs to a recovery. ■
The judgment at the circuit should be reversed, and a new judgment entered for the plaintiffs for the value of the property as found by the court, with costs of both courts.