McCann v. Baltimore & O. Railroad Co.
| Decision Date | 28 October 1863 |
| Parties | DANIEL MCCANN v. THE BALTIMORE AND OHIO RAIL ROAD COMPANY. |
| Court | Maryland Court of Appeals |
APPEAL from the Court of Common Pleas of Baltimore City:
Action by the appellant against the appellee to recover the value of a looking-glass and frame placed as freight upon the cars of the Baltimore and Ohio Rail Road at Baltimore, to be delivered at St. Louis according to the terms of a special contract set out in the declaration. To this declaration the appellee pleaded six pleas; and an agreement was afterwards filed by which all errors of pleading were waived.
1 st Exception. The plaintiff to support the issue on his part, proved by competent witnesses that he was the owner of the glass and frame shipped by Samson Cariss & Co. over the Baltimore and Ohio Rail Road to St. Louis, and that it was properly packed in a strong box, fit for the transit to St. Louis over the roads, and was well battened, and was unbroken and tight when delivered to the railroad company in Baltimore, and that there was delivered to his agent the following receipt:
To this receipt was attached the following memorandum:
" Conditions. --Freight offering for transportation must be in good order, properly packed, and distinctly marked, otherwise the company will not be responsible. Nor will it be responsible for the leakage of liquids of any kind, nor for losses by the bursting of casks or barrels of liquids arising from expansion or other unavoidable causes, or damage occasioned by providential causes, or by fire, while in transit or at stations. The company is not responsible for accidents or delays from unavoidable causes, or for the decay or injury of perishable articles. The responsibility of the company under this receipt to terminate when the goods are unloaded from the cars. Goods intended for all rail, must be marked ‘ through by rail; ’ river goods, via Wheeling or Parkersburg, must be marked on this ticket.
It is understood, and is a part of this agreement, that whenever the Ohio river navigation is suspended by low water or ice the freight so contracted through by rail and river shall be forwarded from Wheeling or Parkersburg, by railroad rates and actual costs of transfer between Wheeling and Bel Air Ohio and Parkersburg, and Marietta and Cincinnati Rail Road stations. All goods carried by this company are charged at actual gross weight, except such articles as are provided for in our general tariff.
The liability of the Baltimore and Ohio Rail Road Company to the shipper or consignee of the following goods, is in subordination to the above conditions."
The plaintiff also proved under a commission to St. Louis, that said boxes were broken by rough handling, and also proved the value of the said glass and frame.
The defendants then proved by their transportation agent, the mode in which goods are carried to St. Louis, and the manner of apportioning the freights of the various roads.
Upon cross-examination the plaintiff proved by this witness that the defendant had an arrangement to carry goods from Baltimore to St. Louis, and made contracts in Baltimore to carry goods to St. Louis via these roads.
The defendants then further proved the delivery of these goods to the Central Ohio road in good order and then offered in evidence a release from S. Cariss & Co. to said company, given in October 1858, for any damages that might occur in transportation within one year from said date, signed for S. Cariss & Co., under seal, by George Dukehart, and also proved by said witness that the contract offered in evidence is the receipt through, and that he did not know of any contract in writing between the companies; that a certain sum of $1.50 per hundred pounds to St. Louis is charged, each company to have its share when the transportation is completed.
The plaintiff and defendants thereupon each offered prayers, as follows:
Plaintiff's Prayer. The plaintiff prays the Court to instruct the jury, that if they shall find from all the evidence in this case, that the goods spoken of by the witnesses were shipped by the Balt. & O. R. R. Co. to St. Louis by the plaintiff, and that the said B. & R. R. Co. agreed to carry said boxes to St. Louis, from any of the facts proved in the cause, and shall also find from the evidence offered in the cause, that said goods were destroyed through gross negligence, that then the plaintiff is entitled to recover, notwithstanding the jury may also find that said destruction occurred beyond the terminus of the route of the Balt. & O. R. R. Co., provided the jury shall find from the evidence the agreement spoken of by the witness England as made between the three companies.
Defendants' Prayer. That if the jury shall believe from the evidence that the paper offered in evidence by the plaintiff, (the receipt above of the Balt. & O. R. R. Co., with the memorandum,) as the receipt of the defendant for the glass mentioned in the narr., was signed by their duly authorized agent, then said paper became a special contract between the owner of the goods and the said defendants; and if they shall further find that the release offered in evidence was executed by Samson Cariss and company, and that said plaintiff at the time of the happening of injury complained of, (should the jury find that such injury did in fact occur,) was the owner of the said glass, and that the said Cariss and company did not disclose their principal when they shipped the said glass, then the said plaintiff is bound by the terms of the said release, but is not entitled to recover unless the jury shall find from the evidence that the injury complained of, happened on the road of the defendants, or prior to their delivery of the said glass to the Central Ohio Rail Road Company, (should the jury find such delivery; ) and that even should the jury find that the said injury happened on the road of the defendants, or while said glass was in their actual possession, the plaintiff is not entitled to recover, unless the jury find also that the said injury was the result of gross negligence on the part of the defendants or their agents. And that there is no evidence in the cause to show that the injury complained of happened on the road of the defendants.
The Court below (MARSHALL, J.) granted the prayer of the defendants, but rejected that of the plaintiff, whereupon the plaintiff appealed.
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J. J. Malcolm, for the appellant, contended, that the Court below erred in granting the prayer of the defendants and rejecting that of the plaintiff:
1st. Because there is no evidence in the cause to show that Cariss & Co. executed said release, nor is the knowledge brought home to the plaintiff of the fact of said release having been executed, nor could the said defendants and Cariss & Co. bind said plaintiff by any private arrangement unknown to plaintiff.
2d. Because said release is not executed by Cariss & Co., but by a certain George Dukehart, who has not been shown by the proof to have had any authority to make or execute a release. Dunlop's Paley on Agency, 292, note m.
3d. Because a release cannot be made of damages to arise out of a contract which is not in existence at the time of the release; it must be of a present subsisting contract or liability, and not a mere possibility. 2 Coke Littleton, 459, note m, and 456. 2 Pars. on Cont., 220. Pierce, et al., vs. Parker, 4 Met., 80.
4th. Because said prayer limits the liability of said defendants to their own road, when the contract is for the entire transportation to St. Louis. Redfield on Railways, 275 and 276, and notes. See also Id., sec. 134, p 281, and notes. Weed vs. R. R. Co., 19 Wend., 534. Frs. & Mechs. Bank vs. Cham. Trans. Co., 2...
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