Meloche v. Chicago, M. & St. P.R. Co.

• Decision Date: 01 March 1898
• Citation: 116 Mich. 69,74 N.W. 301
• Parties: MELOCHE v. CHICAGO, M. & ST. P. RY. CO.
• Court: Michigan Supreme Court

74 N.W. 301

116 Mich. 69

MELOCHE v. CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Michigan

March 1, 1898

Error to circuit court, Marquette county; John W. Stone, Judge.

Action by Hercules N. Meloche against the Chicago, Milwaukee & St. Paul Railway Company to recover for the value of goods destroyed by fire while in defendant's possession. From a judgment for plaintiff, defendant brings error. Affirmed.

W. S. Hill and Gad Smith (H. H. Field, of counsel) for appellant.

Potter & Sedgwick (A. B. Eldredge, of counsel), for appellee.

LONG J.

Plaintiff is the survivor of the firm of Meloche Bros., who, prior to August 25, 1896, carried on a drug business in the village of Ontonagon, this state. Some days before that time, the firm had closed its drug store, and packed the goods for shipment to Ishpeming, and in the forenoon of that day had them carted to the defendant's freight depot for shipment, over its road to Ishpeming. In the afternoon of the same day, a fire occurred in Ontonagon, destroying almost the entire village and burning defendant's freight depot, together with the goods of Meloche Bros. This action is brought to recover the value of the goods so destroyed. The principal defense was that the goods had not been delivered to or accepted by the defendant at the time of the fire. The plaintiff testified that he delivered them at the depot on the morning of the day of the fire; that the packages were directed to "Meloche Bros., Ishpeming, Mich.," and that he requested immediate shipment; that the agent of the defendant agreed to ship them, and send a shipping bill next day to him, at Ishpeming. The defendant introduced testimony tending to show that the goods were not marked, and that, when plaintiff requested shipment, it absolutely refused to ship them until the same were marked. The court instructed the jury that the first question for them to determine was "Were those goods, after being marked, as claimed by plaintiff, delivered to and accepted by the defendant, to be shipped to Ishpeming? If you say no, that is the end of the case. *** If you say, 'Yes,' then the only other question for you to decide is, what was the value of the goods then and there?" The court further charged "If there is a recovery at all, it must be because those goods were fully and fairly delivered into the possession of the defendant as common carrier, and accepted by it as such, under the promise that it would forward them to Ishpeming. That would constitute an acceptance by it as common carrier. Common carriers of freight are liable, whether careful or not. *** The liability does not arise from negligence or want of care simply. It arises from their failure to make an absolute, safe carriage and delivery which they insure by their undertaking. *** The fire was not such an act of God as would excuse the defendant."

Counsel for the defendant contends that the court was in error in refusing to direct a verdict for the defendant, and in the charge as given. It appears from the testimony of the plaintiff that, the day before the goods were left at the depot, he went there, and had a talk with Mr. Mathews and Mr Jones about the shipment, and ascertained the rate. After the goods were in the depot, he again went there, saw these parties, Mathews and Jones, from whom he had ascertained the rate the day before; that they then told him they could not ship the goods that day, as they had no cars. This was between 10 and 11 o'clock, and the train was to leave at 11 on which the plaintiff was going to Ishpeming. While at the depot, he found that the goods had been attached. He went to the justice's office, paid that claim, and returned to the depot. He claimed to have been gone but about 20 minutes. On his return, he again saw Mathews and Jones. As to what then took place, the plaintiff testified as follows: "I had a further conversation with Mr. Jones and Mr. Mathews. I said, 'Can you ship these goods?' They said they hadn't any car. 'We cannot ship them this morning.' *** I asked them for a shipping bill or receipt. He says, 'I will send it to you by mail in the morning.' I had made no shipping bill. Q. You asked him for a receipt, and he told you he had no time? A. He had no time. He would send it to me by mail in the morning. *** I asked him if I could depend on it, and he said, 'Yes."' The plaintiff further testified that this was about 20 minutes before the train left, and that his brother and himself left on the train. This testimony is contradicted by the defendant, evidence being given that no contract was ever made; and considerable testimony was further given tending to show that the plaintiff, immediately after the attachment...