The Michigan Southern &Amp; Northern Indiana Railroad Co. v. Frederick Shurtz

• Decision Date: 09 December 1859
• Citation: 7 Mich. 515
• Court: Michigan Supreme Court
• Parties: The Michigan Southern & Northern Indiana Railroad Company v. Frederick Shurtz

7 Mich. 515

The Michigan Southern & Northern Indiana Railroad Company v. Frederick Shurtz

Supreme Court of Michigan

December 9, 1859

December 2, 1859; December 3, 1859, Heard [Syllabus Material]

Error to St. Joseph circuit, where action was brought by Shurtz against the railroad company, for the value of certain wheat.

The declaration was in substance as follows:

First count. That defendants, being common carriers, received at White Pigeon 83 55-60 bushels wheat of plaintiff, to be taken care of, and safely and securely carried and conveyed to Toledo, and there delivered to plaintiff, for a consideration to be paid, but that, not regarding their duty as such carriers, they so carelessly and negligently behaved and conducted themselves with respect to such wheat, that the same was wholly lost to plaintiff.

Second count. Similar to the first, except that it alleged the undertaking to carry to such point on defendant's road as plaintiff should designate when defendants should be ready to carry the same, they not then being prepared so to do.

Fourth count. That defendants, as common carriers, received said wheat, and gave therefor the following receipt:

"Mich South. Railroad,

White Pigeon, Nov. 9, 1854.

"Received of S. Cotterman, for account of Fred. Shurtz, 83 55-60 bushels of wheat to be forwarded to , without further liability after lake shipment or loss by fire.

"A A. Bean, Agent,

"Per C. Dunwell."

That according to the custom of defendants the place of destination of property was usually left blank in such receipts when the property was to be carried to Toledo whereby they undertook to carry to Toledo. Breach as in the first count.

Fifth count. The defendants as carriers received the wheat, to be safely and securely kept in their warehouse, and thence conveyed to such place on their road as plaintiff should designate when defendants should be prepared to carry the same, that they did not and would not furnish the requisite cars for carrying the same, though required so to do, but so negligently conducted themselves that the wheat became lost to plaintiff.

Seventh count. That defendants, as carriers, received the wheat, and agreed safely and securely to keep the same in their warehouse, and safely carry to such place as plaintiff should afterwards designate. Breach, that they did not safely and securely keep the wheat, whereby it became lost to plaintiff.

Ninth count. That defendants received the wheat to be taken care of, but took so little care thereof that it was destroyed, and lost to plaintiff.

Tenth count. That defendants, as carriers, received the wheat and agreed to securely keep the same, and carry to Toledo within a reasonable time. Breach, that they did not securely keep, and did not carry within a reasonable time, and through their carelessness, negligence, and delays, the wheat became lost to plaintiff.

Eleventh count. That the customary place to which wheat was carried by defendants for lake shipment was Toledo, and that by the receipt (above set forth) and the custom, they undertook to securely keep and carry said wheat to Toledo. Breach as in tenth count.

Twelfth count. Like the eleventh, except that it alleged Monroe, instead of Toledo, to be the place to which the wheat was to be carried.

The third, sixth and eighth counts were abandoned on the trial.

Plaintiff (below) gave in evidence the receipt above copied, and proved that a portion of the wheat therein mentioned remained in the warehouse of defendants on December 24th. 1854, when said warehouse was destroyed by fire. He was also permitted by the circuit judge, under objection that no such fact was alleged in his declaration, to give evidence tending to prove that before the fire he had directed the wheat to be sent forward to Toledo--the judge holding the evidence proper under the first count.

Plaintiff also, under exception, introduced evidence tending to prove the following facts: That defendants, at the date of the receipt, had insufficient facilities for forwarding grain received by them; and that it was...