McCann v. Baltimore & Ohio Rail Road

Goldsborough, J., delivered the opinion of this Court: The action in this case was brought by the appellant against the appellee, to recover the value of a looking-glass [210] shipped over the road of the appellee from the- City of Baltimore to the City of St. Louis, under a special contract sefi out in the appellant’s declaration. To this' declaration the appellee pleaded six pleas. It was agreed that in this case, the following-entry he made: “errors of pleading waived, without prejudice to the rights of the defendants or plaintiff, to raise any questions for tho decision of the Court in the shape of prayers for instruction to the jury, that they might have done by any special pleading applicable to the premises.” At the trial, after the evidence had been submitted, the appellant and appellee each ashed an instruction from the Court; the appellant’s prayer was rejected, and the appellee’s granted. From this ruling of the- Court, this appeal was taken. In examining the contract with the conditions annexed, and the evidence in tho cause, .we are of opinion that the responsibility of the appellee ceased upon the unloading of the cars at the terminus of its railroad on the Ohio River. The provision incorporated in the contract that the property in controversy, might, in certain contingencies, be transported by steam boat from tho Ohio River, to the City of St. Louis, forbids the interpretation that the “unloading of the cars,” could mean unloading at the place of destination. This view of the contract justified the Court below in rejecting the appellant’s prayer. Considering the appellee’s prayer, we find several distinct, substantive propositions: The first, that,“the paper offered in evidence by the plaintiff, the receipt of the B. & O. R. R. Co. with the memorandum,” became a special contract, is clear, the appellant having declared on it as such. In reference to the paper purporting to be a release of Samson Oariss & Co., we find by reference to the exception taken by the appellant, that it states the appellees proved it, yet the evidence to establish the agency of Dnkehart to execute it does not appear from the record; it does not contain the evidence upon which the Court may have acted. That evi [211] elenco ought to ho sot out in the record or in a bill of exceptions, in order <hat this Court could pass upon it. In the absence of testimony to the contrary, we must presume that the Court below acted correctly. See Burtles vs. State, use of Turner, 4 Md. Rep., 277. Reynolds vs. Negro Juliet, et al., 14 Md. Rep. 118. Hollowell & Co. vs. Miller, 17 Md. Rep., 305. (Decided Oct. 28th, 1863.) Besides this, the appellant did not except to the admissibility of the release in the trial below. As to the next branch oí’ the instruction, involving the question of the effect of Cm release upon the appellant, we are satisfied of the correctness of the instruction. Though Cariss & Co. may hav-e been but the agent of the-appellant, yet as there is no evidence that they disclosed tlieir principal, {the appellant.) the appellee was authorised to regard Cariss & Co. as the principal, in which event their release was a protection if the injury was sustained upon the appellee’s road, and the appellant claiming the ownership of the property injured, recognized the agency of Cariss & Co., and was equally affected by -the operation and tenor of the release. The appellant’s counsel objected that the paper writing -referred to was not the release of Cariss & Co., yet in our opinion, though not technically a release, it was a special subsisting contract, opera,live during the period embraced, in it, and any agreement of the appellee to transport such property as is named in this paper writing, during that period, was properly affected by it. It is not denied that the contract to transport the looking-glass in controversy, was made during the subtsistonce of the special contract between Cariss & Co. and the appellee. There is no evidence that the injury was caused by the gross 'negligence of the appellee or its agents or that it happened at all upon the road of the appellee. Therefore this branch of the instruction was properly granted; and finding no error iu the instruction or any part of it, the judgment must be affirmed. Judgment affirmed.