May 23
1867; May 24, 1867, Heard
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Case
brought up for review from Wayne circuit.
These
were three actions on the case brought against defendants as
common carriers, to recover the value of certain goods burned
while in their depot at Detroit, in April, 1866.
The
defendants pleaded the general issue. The cases were heard
together without a jury, on stipulations.
The
following is the one signed in the McMillan case:
"On
the trial of this cause the following facts shall be received
and taken as admitted, subject, however, to all objections as
to relevancy and competency:.
Plaintiffs had judgment for the value of the tobacco.
"By
defendant on behalf of plaintiffs:
"1.
That the defendant is, and in the month of April, 1866, was a
corporation created by the laws of the state of Michigan, and
a common carrier of goods from Toledo, in the state of Ohio,
to Detroit in the state of Michigan. That it was then, and
now is, lessee in perpetuity of the road of the Detroit,
Monroe & Toledo railroad company, extending from the
south line of the state of Michigan to said Detroit, and that
said company last named is organized under the general
railroad law of the state of Michigan, and that defendant
manages said road by the same officers and agents as it does
the road built under its own charter.
"2.
That, on the 19th day of April, 1866, the plaintiff purchased
of Samuel Lewenthal, at Cincinnati, Ohio, three cases of
tobacco, paying therefor $ 361.07. That on the 20th day of
the same month, the plaintiffs purchased of W. Weake &
Co., at Cincinnati, Ohio, fifteen cases of wine and twenty
kegs of wine, paying therefor $ 621; and that on the 23d day
of the same month the plaintiffs purchased of Proctor &
Gamble, at Cincinnati aforesaid, ten boxes of candles, paying
therefor $ 96.48. Subsequently, the said goods so purchased
were delivered by the above named vendors to the Cincinnati,
Hamilton & Dayton railroad company, duly marked and
consigned to the plaintiffs, and the said company gave
therefor the bills of lading hereto annexed.
"3.
That on the 25th day of April aforesaid, said plaintiffs
delivered to the defendant, at Adrian, in the state of
Michigan, two barrels of eggs, marked and consigned to the
plaintiffs at Detroit, for which the defendant gave the
plaintiff a receipt, a copy of which is hereto annexed. The
value of the said eggs was $ 26.
"4.
That defendant received said three first purchases of goods
at Toledo aforesaid, from the Dayton & Michigan railroad
company (which company is one of those forming a
transportation route from Cincinnati to the city of Detroit),
and carried them, together with said two barrels of eggs,
over said Detroit, Monroe & Toledo railroad to Detroit,
where, on the night of the 26th of April last, they were all
consumed by a fire which destroyed defendant's depot and
its contents."
"By
plaintiffs on behalf of defendant:
"1.
That all the bills of lading in use by the defendant, and all
the contracts of affreightment, the instructions to agents,
and the printed rules posted in all its depots and station
houses, for the past ten years, have contained clauses
exempting the defendant from liability for losses by fire,
and providing that where goods are in its depot awaiting
delivery to consignees, it will be liable only as
warehousemen and not as carriers; and that plaintiff has been
accustomed to do business with defendant, and to receive and
send goods over its road under said bills of lading.
"2.
That said tobacco was received at defendant's depot in
Detroit, and, in conformity with the usage of business,
unloaded from the cars and placed in its warehouse on the
24th day of April last. That said two barrels of eggs were so
received, unloaded and placed in defendant's warehouse on
the 25th day of April, and that said wine and candles were so
received, unloaded and placed in defendant's warehouse on
the 26th day of April last, at which depot all consignees
receive their goods. That the depot of defendant closed
generally at 6 o'clock P. M., though in cases of special
demand goods are sometimes delivered after that hour.
"That
freight trains from Toledo arrive at Detroit usually from 2
to 3 o'clock P. M.
"That,
on the arrival of the freight train, way-bills are handed to
the tally clerk, who makes from them a list of goods for his
tally book. He then checks the goods from the cars as they
are unloaded, in the course of that afternoon or evening. It
is a usage of the company to give notice on the following
day, between the hours of 10 A. M. and 4 P. M., to the
consignee of the arrival of the goods so unloaded.
"By
defendant on behalf of plaintiffs--rebutting:
"1.
That the consignees did not know of the exemptions and
conditions contained in the bill of lading hereto annexed,
though they had been accustomed to ship goods over the same
route under similar bills.
"2.
That the plaintiffs did not know of the exemptions and
conditions aforesaid, contained in the bills of lading,
posted notices, and contracts of affreightment of the
defendant.
"3.
That the plaintiffs received notices, which are hereto
annexed, of the arrival of said tobacco and eggs about
half-past three o'clock P. M. of said 26th day of April;
but did not receive any notice of the arrival of said wine or
candles.
"That
it had long been the usage of the defendant to notify
plaintiffs of the arrival of goods.
"That
the depot of defendant at Detroit, and that of the Detroit
& Milwaukee railroad company, were under one and the same
roof, but separated by brick walls, so that the apartment of
each was distinct from the other. Goods arriving by either
road, and destined for shipment on the other, were usually
delivered by the road bringing them at a place between the
two apartments, known to the freight employes of the two
companies as 'neutral ground,' where the other
company received them.
"On
the said 26th day of April, the defendant transported over
its road, and deposited in its apartment of said depot, a
quantity of oil, marked as follows: a part of it
'petroleum,' a part 'benzine,' and a part
'benzole,' which was on the same day delivered by the
defendant on said neutral ground, for transportation by the
said Detroit & Milwaukee railroad company over its road.
"In
the evening of the same day the Detroit & Milwaukee
railroad company, by their employes, carried said oil from
the place where it was delivered as aforesaid, by trucks or
otherwise, into its own apartment for shipment over its road,
completing the removal there between 9 and 10 o'clock P.
M. Some of the barrels were leaking, and two of them were
coopered by the Detroit & Milwaukee railroad
company's employes, after being removed into their
apartment. Immediately after said oil was removed to the
apartment of the Detroit & Milwaukee railroad company,
one of its employes set a glass lantern which he carried upon
the floor of the depot, not far distant from where said
barrels were standing, and the fire which consumed said
property as aforesaid, together with all the apartments of
both of said companies' depots, caught from the contact
of the gas arising from said oil with the said lantern.
"The
length of the Detroit & Milwaukee depot was about 600
feet, and the distance from the point where said petroleum
was deposited by defendant to the point where it was
subsequently placed by the Detroit & Milwaukee railroad
company, and where the fire originated, was about 500 feet,
and which latter point was the extreme end of said Detroit
& Milwakee depot from that of defendant."
The
following is a copy of the form of the three bills of lading
given for the foregoing goods, except that the bill covering
the tobacco excepted "fire in the depot, and unavoidable
accidents of the railroad:"
[duplicate.]
"CINCINNATI,
HAMILTON & DAYTON RAILROAD.
"Received,
in good order and condition, of Proctor & Gamble, at the
depot of the Cincinnati, Hamilton & Dayton railroad,
articles marked as below, which are to be delivered, in like
good order, at Toledo, for Detroit, unto G. & R.
McMillan, or assigns, he or they paying freight for the same
at the rate of thirty (30) per 100.
"Cincinnati,
April 23, 1866."
The
following is a copy of the form of the notice given by the
defendant to G. & R. McMillan, of the arrival of the
tobacco and eggs, and referred to in the foregoing
stipulation:
"MICHIGAN
SOUTHERN & NORTHERN INDIANA RAILROAD.
"M.
S. & N. I. R. R. Freight Office, "Detroit, April 25,
1866.
"G.
& R. McMillan: The following articles, consigned to your
address, are now ready for delivery at this depot:
"Freight
and charges payable on delivery. Property to be removed
within twenty-four hours, otherwise storage will be charged.
No freight delivered except to consignee or his written
order. No claims for damages will be allowed unless made
before removal of goods. All contracts to be presented when
goods are called for.
"A.
H. Earl, Agent.
"Agent
M. S. & N. I. R. R. Co.: Please deliver the above named
articles to "
In the
case of Heffron v. The Michigan Southern & Northern
Indiana Railroad Company, the goods claimed to have been
destroyed consisted of one hundred cases of oysters. The
stipulations were the...
