37 Mich. 111 | Mich. | 1877
The manner in which this case is submitted makes the record present substantially this question: Whether in the court below there was any evidence tending to prove the plaintiff’s case? The action was begun in justices’ court, and the declaration is as follows:
“Saginaw County — ss. John B. Weir, plaintiff herein, complains of the Flint and Pere Marquette Railway Company, defendant herein, in a plea of trespass on the case upon promises; for that whereas, the said defendant, before and at the time of the delivery of the goods and chattels to said defendant, as hereinafter mentioned, was and from thence hitherto hath been and now is a common carrier of passengers and baggage, and goods and chattels, for hire, to and from Detroit, in the State of Michigan, to East Saginaw, Jackson, Lansing and Saginaw railroad crossing and Saginaw city, in the State of Michigan; and as such common carrier, the said plaintiff, on the 9th day of November, A. D. 1875, took passage on the railway and cars of said defendant, from Grand Trunk Junction, in the county of Wayne, to Saginaw, in the county of Saginaw; and did then and there deliver to said defendant and the said defendant then and there accepted and received of and from the said plaintiff certain goods and chattels of the said plaintiff, to wit: one trunk, one silk finished dressing gown, [etc.', naming several other articles] of groat value, to wit: of the value of three hundred dollars, to be safely and securely carried and conveyed by the said defendant, from Grand Trunk Junction aforesaid, to Saginaw aforesaid, and then, to wit: at Saginaw aforesaid, safely and securely to*113 be delivered to said plaintiff, for certain reasonable hire and reward paid to said defendant in that behalf, and the said defendant, then and there, in consideration of said hire and reward, undertook and faithfully promised the plaintiff to safely and securely carry and convey the said plaintiff and said goods and chattels, from Grand Trunk Junction aforesaid, to Saginaw aforesaid, and to take good and proper care of said goods and chattels, and in and about its carriage and conveyance of the same, and the delivery thereof, as aforesaid; yet the said defendant, not regarding its said promises and undertaking in that behalf, did not safely and securely convey and deliver the said goods and chattels to the said plaintiff, but so carelessly and negligently conducted itself with respect to said goods and chattels that by and through the negligence, carelessness and improper conduct of said defendant, and its servants, in that behalf, that said goods and chattels, being of great value, to wit: of the value of three hundred dollars, became and were wholly lost to the said plaintiff, to wit: at Saginaw, aforesaid; by means whereof the said plaintiff hath sustained damages in the sum of three hundred dollars; which said- sum of money the said defendant then, to wit, at Saginaw aforesaid, undertook and promised to pay the said plaintiff,” etc.
The evidence was put into the case by stipulation, and in the main the facts are undisputed. It appears that the plaintiff took passage upon the cars of the defendant from Detroit to Saginaw, and that he had with him a trunk, which he avers contained the articles of personal property described in the declaration. This trunk has been lost, but whether through any fault of the railway company is in dispute. It is, however, shown by the plaintiff himself that both he and his trunk were being carried, not for hire and reward, but gratuitously. There was consequently no contract for carriage by the railway company, and this action, which is in assumpsit, cannot be maintained. Nolton v. Western R. Corp., 15 N. Y., 444, 440.
There can be no question that a railway company which receives property for gratuitous carriage, assumes, like any other gratuitous bailee, certain duties in respect to it, and
Reliance is placed by the plaintiff upon certain cases which are supposed to have decided that the obligation of a railway company to carry safely is unaffected by the fact that'no fare was paid. None of them so decides. Todd v. Old Colony, etc., R. R. Co., 3 Allen 18, was an action for an injury to a person who was riding without payment of fare. The court recognized the obligation of the carrier to observe due and reasonable care, but expressly said that it did not appear that the facts proved at the trial rendered it material to consider whether a less degree of care was demandable than in cases where fare is paid. In Nolton v. Western R. Corp., 15 N. Y., 444, 450, which was an action for injury to a mail agent carried on "the cars under contract with the government, it is said that “the matter of compensation may have a bearing upon the degree of negligence for which the company is liable,” but no decision on that point became necessary. In Perkins v. N. Y. Cent. R. R. Co., 24 N. Y., 196, the question was how far it was competent for a carrier of persons to contract for an
But as the plaintiff has brought his action, not in tort but upon contract, there can be no recovery under his declaration, and the extent of the duty which under the circumstances was imposed upon the railway company becomes immaterial. The judgment must be reversed, with costs, 'but as the facts are not embodied in a finding by the circuit judge, so as to permit of our entering final judgment in this court, a new trial must be ordered.