Michigan Southern & Northern Indiana Railroad v. Bivens

Worden, J. Suit by the appellee against the appellants. The complaint alleges in substance that the appellants, on, &c., at the town of Elkhart, &c., as common carriers, received from the appellee eight thousand one hundred feet of lumber, to be transported, for a certain reasonable reward, to Chicago; that the company so carelessly and negligently conducted themselves in the premises, that, through their negligence, and that of their servants, the said property was greatly damaged, and was afterwards converted to the use of the company, and was wholly lost to the plaintiff. Answer, in denial. Trial, verdict, and judgment for the plaintiff, over a motion for a new trial. A bill of exceptions was filed, containing evidence adduced on the trial; but it is insisted, by counsel for the appellee, that, as the formula of the 30th' rule is not followed, by stating that “this was all the evidence given in the cause,” the bill should not be considered as showing all the evidence. — 264 — The rule not being complied with, and the objection being made, we shall determine the case without reference to the evidence. The motion for a new trial was predicated, amongst other things, upon supposed errors of the Court in giving and refusing instructions to the jury.' The defendants asked the Court to instruct the jury to find specially the following questions of fact, viz.: .1. “Was not about- five thousand feet of the lumber specified in the complaint carried by the defendants for the plaintiff to Chicago ?” 2. “Was there ever any demand on the part of the plaintiff on the defendants, for the lumber thus carried to Chicago ?” This the- Court refused, and, we think, correctly. Unless otherwise directed by the Court, the jury might render either a general or a special verdict; but upon the request of either party, the Court must direct a special verdict upon all or any of the issues; and if requested by either party, the Court must direct the jury, if they render a general verdict, to find specially upon particular questions of fact. 2 R. S. p. 114, § 336. The Court had not directed, nor had it been requested to direct, the jury to find a special verdict, and they were at liberty to find generally or specially, and as they could only be required to find specially upon particular questions of fact, in case they should elect to find a general verdict, the unqualified direction asked, was properly refused. The jury should be required to answer particular questions of fact, only in case they should find a general verdict. The defendants asked several instructions, which were refused. The evidence not being considered as before us, we must presume that if the charges were correct in point of law, they were refused as not being applicable to the evidence. The following instruction was given, to which exception was taken by the defendants, viz.: • “ That if, in case the common carrier contracts to carry property of a particular character, as, in this case, a par — 265 — tieular kind of lumber, and the same is injured, and a portion of it, only, safely carried to the point of destination, and the carrier wishes the owner or consignee to accept .... .. . ri-I that portion which is uninjured, it is necessary for him to make an offer to deliver the same, and then it is at the option of the party to receive it or not; and if no-such oiler is made, the carrier will be liable for the full amount of the value of the property.” This charge, in our opinion, was wrong, as applied to any supposable state of facts that might have been legitimately proven on the trial of the cause. Can it be said that when a part only of the property to be transported, is injured, but the remaining “portion is safely carried to the point of destination,” the consignee or owner can, in consequence of the injury to a part, reject the part thus uninjured, and hold the earner liable for the value of the whole? We think not. Suppose several car-loads of wheat are to be transported, all of which, except one, arrive safely and without injury, but the one is damaged by rain in consequence of the insufficiency of the car, can the consignee or owner reject the car-loads thus uninjured, in consequence of the damage to the one? This question is settled by authority. It is said by a standard author, that “where the goods are only damaged, the owner is still bound to receive them, and cannot abandon, and go against the carrier as for a total loss. But whether the owner have accepted the goods or not, he may recover for any deterioration they may have sustained, unless by the excepted risks in the carrier’s undertaking.” Redf. on Railw. 320. In Shaw v. The South Carolina Railroad Co., 5 Rich. 462, it was held, that “where the goods in the carrier’s possession are uninjured in quality, but there is a partial loss, the owner cannot abandon the goods and recover their entire value; he can recover only the price, at the place of delivery, of the goods actually lost.” The fact that a part of the goods are injured merely, instead of being entirely lost, furnishes no reason for the application of any different rule. — 266 — The charge given is also erroneous in stating that it was necessary for the carrier to offer to deliver the uninjured property, and if no such offer was made, he would be liable for the full amount of the property. Whatever may be the duty of a common carrier, who, by the course of his business, is accustomed to make a personal delivery, at the residence or place of business of the consignee, and whose mode of transportation admits of such delivery, it is settled abundantly that a carrier by railroad is not bound, as a general proposition, to make such personal delivery. In Redfield on Railways, p. 251, the author says: “We understand the cases to have settled the question, that the earner by railway is neither bound to deliver to the consignee personally, or to give notice of the arrival of the goods.” The latter branch of this proposition will be remarked upon hereafter. On page 252, the same author says: “ The cases all agree that in regard to carriers by ships and steamboats, nothing more is ever required, in the absence of a special contract, than landing the goods at the usual wharf, and giving notice to the consignee, and keeping the goods safe a sufficient time after, to enable the party to take them away. * * * The course of doing business upon railways, in being confined to a particular route, having stated places of deposit, and generally erecting warehouses for the safe keeping of goods, all seem to require that the same rule, as to the delivery of goods, should prevail, which does in transportation by ships and steamboats.” In Edwards on Bailments, p. 515, it is said, that “since ships and vessels must stop at the wharf, and railroad cars at the depot, notice given to the consignee of the arrival of the goods and of their place of deposit, is taken by custom in lieu of personal delivery.” Whatever diversity there may be in the decisions in respect to the necessity of notice to the consignee, in order to discharge the carrier, there is little or none in respect to the point now under consideration. The goods carried by railroad, having arrived at the proper depot, and the con — 267 — signee having been notified of their arrival, the carrier is under no obligation to seek out the consignee and make an offer to deliver them. It is the business of the consignee to repair thither to receive the goods, and if the carrier refuse to deliver them on request, no valid excuse being shown, an action will, of course, lie for their non-delivery. The fact that some of the goods have been damaged in their transit, can make no difference in the application of the principle. We have seen that such injury does not authorize the consignee or owner to reject the goods entirely, and hold the carrier liable as for a total loss; neither does it devolve upon the carrier any obligation to make an offer to deliver, otherwise than as if the goods had all arrived uninjured. The counsel for the appellee have, with much ability and research, discussed the proposition, involved in the foregoing quotation from Redfield, that a carrier by railroad is not bound to notify the consignee of the arrival of the goods. Upon this point, Judge Redfield cites the case of The Norway Plains Co. v. The Boston and Maine Railway, 1 Gray, 263, and The Farmers and Mechanics’ Bank v. The Champlain Transportation Co., 23 Verm. R. 211. If these cases be considered as deciding the proposition, there are others which hold the other way; as the case of The Michigan Central Railway v. Ward, 2 Mich. R. 538; this, however, was decided upon a statutory provision. In The Rome Railway v. Sullivan, 14 Geo. R. 277, notice is held to be necessary on general principles. Vide Redf. on Railw., note p. 255. . We shall not decide nor further discuss this proposition, because its decision is not necessary to a determination of the case before us. When it shall arise, there will be time for its determination. For the purposes of this case, it may be admitted that the liability of a carrier by railroad continues until the goods have arrived, and are safely stored in the proper depot, the consignee duly notified, and until a reasonable time has elapsed, after notice, for the consignee to remove his goods; and yet it would by no means follow that the carrier would be bound to — 268 — make an offer to deliver them. As before remarked, it is the duty of the consignee or owner to repair to the depot; or place of delivery, for his goods, and the carrier cannot be sued for their non-delivery, unless there has been a re-Iusal 1° deliver on request. J. B. Niles, for the appellants (1). J. A. Liston and R. Lowry, for the appellee (2). Per Curiam. The judgment is reversed with costs. Cause remanded, &c.