Merchants' & Miners' Transp. Co. v. Eichberg

• Decision Date: 12 January 1909
• Citation: 71 A. 993,109 Md. 211
• Parties: MERCHANTS' & MINERS' TRANSPORTATION CO. v. EICHBERG et al. EICHBERG et al. v. CENTRAL OF GEORGIA RY. CO.
• Court: Maryland Court of Appeals

71 A. 993

109 Md. 211

MERCHANTS' & MINERS' TRANSPORTATION CO. v. EICHBERG et al.

EICHBERG et al. v. CENTRAL OF GEORGIA RY. CO.

Court of Appeals of Maryland

January 12, 1909

Appeal from Superior Court of Baltimore City; Thos. Ireland Elliott Judge.

Action by Maurice H. Eichberg and Monte L. Hirch, copartners as the Paper Mills Company, against the Merchants' & Miners' Transportation Company and the Central of Georgia Railway Company. From a judgment for plaintiffs, the transportation company appeals, and from a judgment for the railway company plaintiffs appeal. First mentioned judgment reversed and new trial awarded; other judgment affirmed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE WORTHINGTON, and THOMAS, JJ.

William S. Bryan, Jr., for plaintiffs.

Charles A. Marshall and John J. Donaldson, for defendants.

WORTHINGTON J.

This is an action of tort brought in the superior court of Baltimore city by the appellees, trading as the Paper Mills Company against the Merchants' & Miners' Transportation Company and the Central of Georgia Railway Company, as joint defendants, to recover for damages alleged to have been sustained by the plaintiffs through the negligence, improper conduct, lack of skill and care, and wrongful action of the defendants, and each of them, in transporting a large quantity of wrapping paper and paper bags, and also certain machinery from Atlanta, in the state of Georgia, to Baltimore, in the state of Maryland. The case was before this court at the October term, 1907, upon the question of the sufficiency of the service of process on the Central of Georgia Railway, one of the defendants, and some of the facts are set out in the report of that appeal in Central Ry Co. v. Eichberg, 107 Md. 363, 68 A. 690. The service of process having been held sufficient, the case proceeded to trial in the court below against both defendants, and a judgment in that court for $9,734.76 was obtained against the Merchants' & Miners' Transportation Company alone, the Central of Georgia Railway Company obtaining a judgment in its favor under an instruction of the trial court. The unsuccessful contestants in both instances have appealed to this court.

We will first consider the appeal of the Merchants' & Miners' Transportation Company. The learned judge in the court below by granting the plaintiffs' first prayer practically decided that the whole contract of carriage between the parties is contained exclusively in the two letters, one of date of June 12, 1906, and the other of date of June 25, 1906, which passed between the plaintiffs' and Mr. C. S. Hoskins, freight traffic manager of the Merchants' & Miners' Transportation Company, and which are printed in the record. But we think the true contract is to be found in these two letters, or rather in the one of date of June 25, 1906, and in the bills of lading issued to the plaintiffs by the Central of Georgia Railway Company taken and considered together. The letters set forth merely the rates at which the goods will be carried, and the time within which any claim for damages would be settled. It may well be assumed that, when these letters were written, the well-known usage and custom of issuing bills of lading with the several shipments were within the contemplation of the parties. Indeed, the plaintiffs in their letter of June 12th refer to the "clean B-L of the Central of Georgia for evidence" as to the condition in which the shipments would leave Atlanta, thus clearly indicating that they had in mind the receipts usually issued by carriers when goods are accepted by them for carriage. A similar view was held by the Court of Appeals of New York in the case of Donovan v. Standard Oil Company, 155 N.Y. 112, 49 N.E. 678, where the court said: "This instrument [the bill of lading] must be read with the letter referred to under which the plaintiffs entered into the general arrangement in order to ascertain the full extent of their duties and obligations as carriers." Having decided that the bills of lading form part of the contract of carriage, it becomes our duty to construe certain portions of emthem, which give rise to the controversy in this case. The clause which gives rise to the most important question is contained in the eleventh section of these bills of lading, and is as follows: "Nor shall negligence be presumed against any carrier."

The question is: How does this clause effect the burden of proof? We think it must be given its full force; that is to say, the burden is upon the plaintiffs to show not only the injury but also the negligence that caused the injury. The common-law presumption of negligence where damage merely is own...