42 Ill. 73 | Ill. | 1866
delivered the opinion of the Court:
This was an action on the case brought against all of these companies for damages alleged to have occurred to eighty tierces of hams, the property of appellant, by delay in transporting the same between Chicago and Wheeling. The declaration is in the usual form for the violation of the common law duty of common carriers. It is alleged that the hams were shipped at Chicago, with a general undertaking to carry and deliver the same, in some of the counts, at Bridgeport, in Ohio, and in others at Wheeling, Virginia, within a reasonable time; and neglect and failure to so deliver the hams is averred, whereby they became and were injured and suffered damage. A summons was served on Charles M. Gray, as freight agent of the several companies. The Michigan Southern and ¡Northern Indiana Railroad company appeared and filed the .plea of the general issue. The other companies failing to defend, their default was entered. Afterward, a trial was had by the court and a jury, resulting in a verdict in favor of the company, upon which the court rendered a judgment, from which plaintiff below appeals to this court.
It appears from the evidence, that, on the 20th day of February, 1864, appellant, by Brown, his agent, saw the general freight agent of the Michigan Southern and ¡Northern Indiana railroad, in .reference to shipping these hams. Being assured by the agent that they would be shipped through in not exceeding seven days, the hams were sent on that understanding to the freight depot of the company for shipment on the 22d of the same month. The agent was informed of the danger of the heating of the hams, and the importance of dispatch in their transportation. The evidence shows that the hams were well packed, and not liable to heat in twenty days, at that season of the year. On the 24th a freight bill was made out, and whether inclosed to appellant by mail or was delivered to some one else, does not appear. Brown, who shipped the hams, says he has no recollection of having ever seen it before the time of the trial.
Brown testifies, that, on the twentieth, when he made the contract for the shipment of the hams, there was no limitation in the agreement to ship the hams to Wheeling. But in the freight bill, dated on the 24th, the company limits their liability to their own line, and provide against liability for delays growing out of over accumulation of freights on the road. It appears that the hams did not reach Wheeling until as late as the 4th of May, 1864; and when received, they were in a damaged condition, having heated and spoiled, so as to be worth some seven cents less per pound. After all of the evidence was heard, the court directed the jury to find a verdict for the railroad company, to which appellant excepted.
This presents the question whether the testimony of Brown was admissible, as tending to contradict the freight bill, as that seems to be the only ground upon which the jury were directed to find for the company. We think his evidence was admissible, and should have gone to the jury, and they should have been left to say whether the hams were shipped under the verbal contract of the 20th of February, which contained no limitations or conditions, or under the written freight bill of the 24th, which did contain limitations on their liability. If the shipment was made under the verbal agreement, the company would have been bound to deliver within the specified time, or been liable for all damages occasioned by failing to perform their agreement. On the other hand, they would only be liable according to the terms of the freight bill. And inasmuch as appellant did not sign that agreement, either in person or by agent, and as it does not appear to have been delivered to appellant or his agent, we think it was a question proper to be left to the jury to say under which contract the hams were shipped. The agreement seems to have been made four days, and the hams were delivered two days before the date of the freight bill. In such a case it is a question for the determination of the jury, whether the contract of the freight bill was accepted by appellant.
If the hams were shipped under the verbal contract, the making and signing of the freight bill, with conditions and limitations, would not alter their liability under the verbal agreement, unless it was accepted as the contract of the parties. And it would be for the jury, as it bears date subsequent to the first agreement and the delivery of the freight, from all of the circumstances of the case, to say whether the freight bill was accepted as the agreement. It would have been an easy matter for the company, after making the contract, to have filled out and forwarded by mail, to the consignee, this freight bill, entirely different from the original contract, and the company could not by that means change their liability, unless such a change was accepted or ratified by the other party. These were questions for the determination of the jury and not of the court. Hor does our practice warrant the court in finding the facts and directing the jury how to find their verdict. In this the court below erred.
It was urged in affirmance, that these companies were improperly joined as defendants. This is an action in tort, and no mason is perceived why the general rule should not apply to this as well as other cases of that character, that on the trial a verdict may be found against those found guilty, and an acquittal of those not guilty of the wrong. Such is believed to be the well established practice of the courts of Great Britain as well as those of this country.
The judgment of the court below is reversed and the cause remanded.
Judgment reversed.
