Michigan Southern & Northern Indiana R.R. Co. v. Bivens

• Decision Date: 03 December 1859
• Citation: 13 Ind. 227
• Parties: The Michigan Southern and Northern Indiana Railroad Company v. Bivens
• Court: Indiana Supreme Court

13 Ind. 227

The Michigan Southern and Northern Indiana Railroad Company v. Bivens

Supreme Court of Indiana

December 3, 1859

From the Elkhart Court of Common Pleas.

The judgment is reversed with costs. Cause remanded.

J. B Niles, for appellants.

Extract from Mr. Niles's brief:

A railroad company, unlike a stage or express wagon running through the streets of a town, is not bound to deliver freight at the place of business or residence of the owner or consignee. Shaw, Chief Justice, in The Norway Plains Co. v The Boston and Me. Railroad Co., 1 Gray 271, says: "The nature of the transportation (by railroad) though on land, is much more like that by sea, in this respect, that from the very nature of the case, the merchandise can only be transported along one line and delivered at the termination or at some fixed place by its side at some intermediate point. The rule in regard to ships is very exactly stated in the opinion of Butler, J., in Hyde v. The Trent and Mersey Navigation Co., 5 T. R. 397: A ship trading from one port to another, has not the means of carrying the goods on land and, according to the established course of trade, a delivery on the usual wharf is such a delivery as will discharge the carrier." It would be absurd to argue that a railroad company is bound to deliver heavy lumber like that described by the witness in this case, except at their proper station. Neither are they bound to give notice of the arrival of goods at the point of destination. The consignor is expected to advise the consignee of the shipment, and if they happen to be the same person, he has all the information which he needs. As is remarked by Chief Justice Shaw, in the case referred to above, "the arrival of goods at the large places to which goods are sent by railroad, are so numerous frequent and various in kind, that it would be nearly impossible to send special notice to each consignee, of each parcel of goods, or single articles forwarded by the trains." Redf. on Railw., 249.--1 Gray 263, supra.

If part of the lumber was carried to the point of destination, the plaintiff was bound to accept it, and he is entitled only to his actual damages, occasioned by loss or injury of the balance. In the nature of the case, part of a lot of square oak timber may be injured or lost without destroying wholly the value of the remainder. If the doctrine announced in the instruction to the jury in this case is correct, then when a railroad company undertake to transport cattle, and some are injured so that the company may think it best to kill them, in order to save their hides and tallow, they thereby assume an entirely new and increased responsibility as to the others--at least so far as to be required, contrary to a general rule, to look up the consignee, wherever he may be, and make a formal tender of the remaining cattle. And even then, according to the instruction, it would be optional with the consignee to receive them or not. Where goods are only damaged or partly lost, the owner is still bound to receive them or what remain, and cannot abandon them and go against the carrier as for total loss. See this subject discussed in The Chicago, &c., Railroad Co. v. Warren, 16 Ill. 502; Redf. on Railw., pp. 320, 321.

J. A. Liston and R. Lowry, for appellee.

Counsel for the appellee submitted the following argument:

The appellants' counsel, in his brief, says, that "the evidence is all set forth in a bill of exceptions." The learned counsel is greatly mistaken. The record shows no such thing. The bill of exceptions to which he refers, ends with this language, to-wit, "and which was all the testimony adduced on the trial of said cause." It does not comply with rule 30 of this Court, and therefore can avail him nothing. See Meeker v. Patty, 6 Ind. 467; Ausem v. Byrd, id. 475. These authorities are sufficient to dispose of his bill of exceptions, and that virtually disposes of the whole case; but we will look a little further into the record, and see what merit the appellants have in the remaining errors assigned.

The complaint charges that the appellants, as common carriers, undertook to safely convey the lumber of the appellee from Elkhart, Indiana, and deliver five thousand six hundred feet of said lumber to F. D. Wilson, (who must be regarded as a consignee,) at the Rock Island repairing shop, in the state of Illinois; and the remainder, two thousand five hundred feet, of said lumber, was to be delivered to D. C. Harley (who must also be regarded as a consignee,) in the City of Chicago, in Illinois; that by carelessness, &c., the lumber was greatly damaged, and was afterwards converted by the appellants to their own use, and was wholly lost to the appellee. The learned counsel admits in his brief, that the general denial in the appellants' answer, is all of the answer that need be noticed. The evidence is not objectionable. The witness testifies that he went in search of the lumber, and was at Chicago, and saw the agent of the appellants, one Bacon, who pointed out, in one corner of the appellants' lumber yard, lumber, as being part of plaintiff's, and said that the lumber had been injured in the "smash up" on the railroad of the appellants; and Bacon also told witness that he had charge of the place of reception of lumber of the appellants, at Chicago. It is a sufficient answer to the appellants' objection, that Bacon was there in charge of the lumber yard, exercising control over it; that was a fact. Thus far the witness testified to facts of his own knowledge; and as to what Bacon told him, as to his being the agent of the railroad company, and having charge of the place of reception of lumber of appellants at Chicago, the learned counsel will find himself in this predicament, that if Bacon was not the agent, yet he had the custody of the lumber yard, and of the plaintiff's damaged and converted lumber. These were facts which the witness saw; and what Bacon said on that occasion, was with reference to the subject-matter of the lumber, then in his custody, and which the witness then and there saw at the time, in a damaged, mutilated, and converted condition. And on the other hand, if Bacon was the agent of the appellants, and the law (in the absence of proof) will presume it, from the circumstances, as he was then and there acting in that capacity, and professing to act in that capacity, at a place where the company had an established place of doing business; and as the company can only do business by and through their agents, and, in one aspect or the other, the acts and declarations of Bacon are part of the res gestoe, and were proper for the jury to consider with the other facts, then, if he was such agent--and it was for the jury to judge from all the facts and circumstances--the appellants are bound by the acts and statements of Bacon to the witness, as the company can only act and speak by and through their agents: and in either view of this part of the evidence, it was not objectionable, and was clearly admissible in one aspect or the other, and it matters not which, as it most clearly proves a conversion of the lumber by the appellants, as it is not pretended that it was ever delivered or offered; and here no demand was necessary. "The law never requires a vain thing." Broome's Leg Max. There is another fatal objection. The counsel did not point out to the Court below his objection to the evidence. Rogers v. Lamb, 3 Blackf. 155.--Russell v. Branham, 8 id. 277. He did object to C. W. Biven's evidence as to what he saw and heard from Williams, the superintendent of the western division of the railroad. This part of the evidence was given in proof of the conversion. There is proof enough to sustain the verdict without it. This is the only objection to the evidence.

"A common carrier remains liable until the actual delivery of the goods to the consignee; or, if the course of the business be such that delivery is not made to the consignee, his liability continues until notice of the arrival of the goods be given" Gibson v. Culver, 17 Wend. 305.

"The rule of law is the same in respect to a carrier by water, as to a carrier by land." McArthur v. Sears, 21 Wend. 190

"The undertaking of the carrier to transport the goods to a particular place, necessarily includes the duty of delivery there in safety." De Mott v. Laraway, 14 Wend. 225.

"Generally a carrier is bound to deliver goods personally to the consignee; but when transportation is by vessel or boats, notice of arrival, and of the place of delivery, is sufficient; and if the consignee is absent, refuses to receive, or cannot, after reasonable search, be found, the carrier may discharge his liability by storing the goods with a responsible party, for account of the owner, in relation to whom the storekeeper becomes bailee." Fisk v. Newton, 1 Denio 45.

"Common carriers are liable for every injury which happens to goods entrusted to their care, unless it be caused by the act of God (inevitable accident) or of the enemies of the land." Colt v. M'Mechen, 6 Johns. 160.--Kemp v. Coughtry, 11 id. 107.

"Where goods were put on board of defendant's vessel to be carried to Albany, and, on arriving there, were, by defendant's directions, put upon the wharf, held, that this was not a delivery of the goods to the consignee, and that the evidence of usage to deliver goods in this manner, was immaterial; that the defendant was liable in trover for such part of the goods as were not actually delivered to the consignee." Ostrander v. Brown, 15 Johns. 39.

"Where the goods are embezzled or lost during the voyage, the master is bound to answer for the value of the goods missing according to the clear net value of goods of like kind and quantity at the port of delivery." Watkinson v....