The Lake Shore & Michigan Southern Railroad Co. v. Perkins

• Citation: 25 Mich. 329
• Court: Supreme Court of Michigan
• Decision Date: 11 July 1872
• Parties: The Lake Shore & Michigan Southern Railroad Company v. John L. Perkins

25 Mich. 329

The Lake Shore & Michigan Southern Railroad Company v. John L. Perkins

Supreme Court of Michigan

July 11, 1872

Heard May 14, 1872; May 15, 1872.

Error to Lenawee Circuit.

Judgment reversed, with costs, and a new trial ordered.

Warner Wing and M. R. Waite, for plaintiff in error.

A. L Millard, for defendant in error.

Graves J. Cooley, J., and Christiancy, Ch. J., Campbell, J concurred.

OPINION

Graves, J.

This was an action on the case, against the plaintiff in error, to recover damages for an alleged refusal to carry, and a delay in carrying, certain live stock for the defendant in error.

The declaration contained three counts, and the portions material to the present inquiry were in substance as follows:

The first averred that the company were common carriers of goods and chattels for hire, from Clayton, in Lenawee county, in this State, to Buffalo, in the State of New York, and, as such carriers, engaged in the business of carrying and transporting cattle, sheep, and hogs, by railroad from the former to the latter place, and from and to other places on the line of their said road, in October, 1869; and it then sets up the delivery to the company, and their reception as such carriers, at that time, of certain cattle, sheep and hogs of defendant in error, to be expeditiously, and with all reasonable dispatch, carried and conveyed by the company as such carriers, to Buffalo, and there to be delivered to defendant in error, for certain reasonable reward to the company. That the company, not regarding their duty as such carriers, by carelessness and negligence, delayed the carriage for ten days, to the damage of defendant in error.

The second count averred that the company, being, as stated in the first count, such common carriers, and engaged, as such carriers, in the business of transporting cattle, sheep, and hogs, and other goods, in and by said railroad cars, upon a railroad of the company, from Clayton to Buffalo, at the time stated in the first count, the defendant in error then solicited the company, as such carriers, to receive and convey for him, from Clayton to Buffalo, certain cattle, sheep, and hogs, belonging to him, and then offered to pay therefore the requisite price; but that the company, not regarding their duty as such common carriers, refused to receive and transport any of said property within a reasonable time, namely, ten days. It then further alleged that after such refusal and lapse of time, the company, as such carriers, did receive the same cattle, sheep, and hogs, to be expeditiously and without unreasonable delay, transported by them as such carriers, to Buffalo; and then, not regarding their duty as such carriers, but, through their negligence and improper behavior, and said refusal, unreasonably delayed the arrival of the stock at Buffalo for twelve days, to the damage of defendant in error.

The third count averred that in March, 1870, the company, being such common carriers as theretofore stated, the defendant in error then offered to them, at Clayton, fifty neat cattle, belonging to him, to be carried by the company, for him, to Buffalo, and then and there offered to pay the company therefore, the requisite price; but, not regarding their duty as such common carriers, they refused to receive, or carry said cattle, or any of them.

The plaintiff in error pleaded the general issue, and on the trial the jury returned a verdict against them, upon which judgment was entered. A bill of exceptions, containing all the evidence, having been settled and returned, the company complain of the proceedings on two general grounds: First, That the evidence had no tendency to prove that the company were common carriers of live stock; and, Second, That it was adapted to prove a case materially variant from that alleged.

In arguing these propositions, it was not disputed at the bar, that the company carried, and offered to carry, such property for hire, for all who would employ them; but the company contended that whatever they had done in that direction, and whatever offers they had made to do that kind of business, had been upon terms and conditions in derogation of material duties and liabilities belonging to common carriers, and in a different character.

The defendant in error, without denying that the conduct of the business, and the offer to conduct it, had been upon terms, and in a manner, excluding duties and obligations belonging to common carriers at common law, and without denying that these terms introduced relations, as to the management, care, and custody of the property carried, very different from those which arise between common carriers and customers, when other freight is in question and no special arrangement is made, insisted, nevertheless, that, as they carried generally for hire, for all who desired, they were common carriers of such property, and rightly, and in proper form, charged in that character. This position the plaintiff in error earnestly controverted.

In view of the points thus raised, it is needful to consider the legal import of the declaration, in relation to the subject-matter, and how the allegations require to be supported.

But, to guard against any misapprehension from the reasoning or language which may be employed, it is proper to premise, that the case does not require an opinion, nor shall we express any, upon the question, whether any modification of the common-law liability in the terms or conditions on which property of other descriptions is to be carried, will convert the carrier into a private carrier or bailee, as to all duties and risks incident to such carriage, or whether, or how far, the duties of common carriers may still attach as to all matters not covered by the modification, or how extensive such modifications must be to take the case entirely out of the law of common carriers. It may, or may not be true, in any particular case, where the duties imposed upon common carriers at common law, have been modified by agreement, that, in all other respects not covered by such modification, the carrier's liability, under a proper declaration, describing the undertaking or duty as modified, would properly be governed and measured by the common-law liability. But the declaration must describe the undertaking or duty as it is. A plaintiff can not declare upon one undertaking, or duty, or obligation of the defendant, and recover upon another. In the Mich. S. & N. I. R. R. Co., v. McDonough, 21 Mich. 165, we held that railroad companies were not, by the common law, common carriers of live stock, and could only make themselves common carriers of that species of property, by assuming to convey it as common carriers.

In this case the action was founded on the general obligation of the law of common carriers and its infringement, and not upon a contract and its breach.

The company are alleged to have been common carriers of live stock, and to have made themselves liable in that specific character, through omissions of duties, and violations of obligations, involved in that character. The asserted cause of action, and the form and nature of the allegations therefore, necessitated proof that the company possessed the character of common carriers of live stock; and there being no enactment applicable to the company, and adapted to produce any change in the duties and obligations of carriers of that kind of property, was the character so imputed, provable by the evidence adduced? Could it serve to show this character, to prove that, on terms, as to duties, liabilities and relations, not recognized by the law of common carriers, but in some respects variant, and in others repugnant, the company had carried, and still offered to carry, living animals for hire, for all who desired? If the facts indicated by this query were...