Tolman v. Abbot

• Decision Date: 25 November 1890
• Citation: 47 N.W. 264,78 Wis. 192
• Parties: TOLMAN v. ABBOT ET AL.
• Court: Wisconsin Supreme Court

78 Wis. 192

47 N.W. 264

TOLMAN

v.ABBOT ET AL.

Supreme Court of Wisconsin.

Nov. 25, 1890.

Appeal from circuit court, Ashland county; J. K. PARISH, Judge.

At the time the alleged cause of action herein accrued, the defendants Abbot and Stewart were trustees in possession and operating the Wisconsin Central Railroad, having its northern terminus at the city of Ashland. In the same capacity they also occupied a dock in that city on Chequamegon bay, and a warehouse thereon, which are connected by tracks with the main line of their railroad. They received freight at such dock and warehouse for vessels navigating Lake Superior, and the other lakes, and delivered the same therefrom on board such vessels to be transported to the respective places of consignment. These vessels belonged to different lines of common carriers. One of these, known as the “Brower Line,” operated two steamboats between Ashland, Washburn, and Bayfield for the carriage of passengers and freight. The two places last named are on the Chequamegon bay, opposite Ashland. The trustees had no interest in any of these lake transportation lines, or their earnings, and no control over them, or their vessels. The trustees also received freight from such vessels to be delivered to consignees at Ashland, or forwarded by them over their own line, or that of some other connecting carrier, to its destination. Such was the general course of the business of the trustees, transacted upon their dock, and at their warehouse. In September, 1888, the plaintiff delivered a hack to the trustees at their dock at Ashland to be shipped to Washburn, and the same was so shipped by them on one of the steamers of the Brower Line, in due course of the business. The agent of the trustees gave plaintiff a shipping receipt for the hack, which contains the contract of the parties in respect thereto. The hack was badly injured by reason of an accident to the vessel just as it reached the wharf at Washburn. This action was brought to recover damages for such injury. Originally, the trustees, and a corporation known as the “Wisconsin Central Company,” were the only defendants to the action; but subsequently, F. R. Brower, the captain of the steam-boat on which the hack was thus shipped, was brought in as a defendant. At the close of plaintiff's testimony, the court granted a nonsuit as to the trustees and Wisconsin Central Company, and judgment of nonsuit for such defendants was entered accordingly. The action was retained and tried against the defendant Brower, and the trial resulted in a judgment for plaintiff against him for the damages to the hack assessed by the jury. The case is further stated in the opinion. The plaintiff appeals from the judgment of nonsuit in favor of the original defendants. Brower has no interest in the appeal.Cole & O'Keefe, for appellant.

Howard Morris and C. M. Morris, for respondents.

LYON, J. ( after stating the facts as above.)

The plaintiff alleges in his complaint, in substance, that the defendants are common carriers of freight for hire between Ashland and Washburn, and that as such they agreed with plaintiff safely to carry the hack from the former to the latter place, but negligently and carelessly failed to do so. This is the gravamen of the action. It is quite immaterial whether the action sounds in contract for the breach of the alleged contract, or in tort for a breach of duty by the defendants as common carriers. In either case, the breach of the alleged contract of carriage is the basis of the action; hence it becomes necessary to ascertain what the contract between plaintiff and the trustees really is. It is not difficult to do so, for such contract, and the whole of it, is contained in the shipping receipt delivered by the dock agent of the trustees to plaintiff when the hack was received upon the dock. Neither of the other defendants is a party thereto. The contract contains a provision that when freight is received by the trustees to be forwarded by their line, their liability shall cease at their depot at which the freight is to be delivered to another carrier to be transported to its destination. It is also stipulated in the contract that the trustees shall not be liable for loss and damage on the lakes and rivers, unless caused by their...