Heirn v. M'Caughan

32 Miss. 17 | Miss. | 1856

HaNDY, J.,

delivered the opinion of the court.

This case is composed of two suits, one brought by John J. M‘Caughan in his own right, and the other by John J. M‘Caughan and Maria his wife, for grievances done to the wife; and being founded on injuries done to the. parties at the same time, they were consolidated and tried together. The material facts alleged in both complaints are the same, and in order to understand the nature of the case it will be sufficient to state the allegations of the complaint in the suit of M‘Caughan and wife; which are as follows:—

That the defendant below was a co-partner with one Greddes and others in a steamboat company, plying between New Orleans and Mobile, and in the waters of the southern seaboard of this State, engaged, in the transportation of freight and passengers for hire, and of the United States mails, as common carriers, to and from the cities above named and the various towns on the Mississippi sea-coast, including the town of Pascagoula, deriving their patronage and profit from freight and passengers furnished by the public; that the company, on the 20th of December, 1853, published a special notice at Pascagoula to the public, that on the 24th day of that month they would cause one of their boats to stop at that point on her trip from New Orleans, for the purpose of taking freight and passengers thence to Mobile; that, acting upon said notice, the plaintiff’s wife and himself went at the appointed time to the wharf, the usual place of landing of the boats of the company, at about eleven o’clock at night, and in time to take passage to Mobile in the boat, according to the advertisement, and remained there in waiting for the boat until day-break on the following morning, hut the boat did not come, and the trip was lost to the plaintiff’s wife, who was detained there for several days thereafter; that it was necessary that the parties should remain on the wharf, watching for the boat during the night, in order to get passage, and that the wharf was a most inclement place during the night, which was unusually cold, and the situation exposed and comfortless, especially for the plaintiff’s wife; that by reason of the exposure she suffered great pain and anguish, and incurred much injury, her health and life being exposed to much peril and hazard. The complaint concludes in these words: “ By all which means, caused by the bad faith, neglect and indifference of said steamboat company, to keep and observe their promise to the plaintiffs and to the public aforesaid, she hath suffered personal damage to the value of one thousand dollars, and to recover which is the subject of this suit.”

The defendant below demurred to the complaint or declaration; and upon that, two objections are presented against the plaintiffs’ recovery, which first demand our consideration.

The first of these is, that there was no direct promise made by the company or the defendant to the plaintiffs, to stop their boat at Pascagoula at the time specified; that no consideration was paid to bind them to do so, nor were the plaintiffs under any obligation to take passage in the boat at the time; and, as the obligation was not binding on both parties, that the company were at liberty to abandon their engagement to stop at that point at the time specified.

The second is, that in the suit of M‘Caughan and wife the action could not he maintained, because it is one ex eontraetu, and in such cases the husband and wife can join only where there is an express promise, and she is the meritorious cause of the action.

These obj ections both proceed upon the assumption that the actions were founded on the special contract of the company with the plaintiffs ; but we do not consider that a proper view of the nature of the actions. The substance of the complaint is, that the company, of which the defendant was a co-partner, were common carriers of freight and passengers, and as such were engaged in running their boats from New Orleans to Mobile, and the intermediate points on the Mississippi sea-coast, including Pascagoula, and that they gave notice that they would stop at that point at a specified time in the course of their business, and thereby became bound to do so; and that the plaintiffs, relying on their compliance with their promise, attended, and were ready at the proper time and place to take passage, but the company failed to perform their duty, and the plaintiffs were unable to obtain passage, and sustained damage in consequence thereof.

This shows nothing of a special, contract between the plaintiffs and the company. The duty which it is alleged the company failed to perform, was that imposed upon them as common carriers, and not one proceeding from a special contract to transport the plaintiffs from Pascagoula to Mobile. It was an obligation which the company owed as well to the public at large as to the plaintiffs, by reason of their general business as common carriers and transporters of passengers; and that obligation was not changed from a general duty to a matter of special contract, by the fact that the company gave notice that they would stop at Pascagoula at a specified time, in the course of the regular business in which they were engaged, and in which the public were interested.

The character of the action must be determined by the nature of the grievance, rather than by the form of the declaration; but in this case they both indicate that the action is founded on the violation of a general duty, and not on a breach of a special contract. And wherever the action, in cases of this kind, is against a common carrier, the courts are inclined to consider it as founded in tort, unless a special contract be very clearly shown by the declaration. Collyer, Part. §§ 735, 736, 738. Ansell v. Waterhouse, 6 M. & S. 385; Pozzi v. Shipton, 8 A. & E. 963. It is manifest, therefore, that this action must be regarded as in the nature of an-action on the case for the violation of the duty of the company, arising from their engagements to the public. In such cases the carriers are bound by the rules of the common law to perform the work tendered them; and no consideration other than the general legal obligation resting upon them from the nature of their business, need be shown by a party who has been injured by their acts of omission or commission, whether negligent, fraudulent, or deceitful. Story on Bail. §§ 508, 591; Philadelphia and Reading Rail Road Company v. Derby, 14 How. U. S. R. 486. Their business as common carriers charges them with duties to the public, which, when violated, entitle the parties aggrieved to an action for the tort, which is wholly distinct from a matter of individual contract.

It is true, that the carrier has the right to abandon his business as such whenever he sees fit to do so; but whilst he holds himself out to the public as in the prosecution of it, he should be ready and willing to perform the duties appertaining to it, according to his undertaking; and in case of neglect, without some good and sufficient reason, any individual injured by a violation of his obligations, may maintain an action for the injury. 2 Kent, Com. 598, 601; Bac. Abr. title “ Carriers,” B.

The objections to the complaint or declaration raised by the demurrer, were therefore properly overruled.

We will proceed to consider, next, the questions raised upon the instructions granted in behalf of the plaintiffs, and upon those asked by the defendant and refused.

The first instruction excepted to is as follows:—

“ That the written publication offered in evidence of the promise of the mail line company, to send a boat into Pascagoula at the time therein referred to, is an engagement or promise that the plaintiffs had the same right to rely on, as if it had been an express engagement with the plaintiffs by name: Provided, they believe that said publication was intended as a notice to passengers or to the public that passengers would be carried.”

In order to judge of the propriety of this instruction, it is necessary to advert to so much of the evidence- as relates to it.

It appears that the defendant and three other persons, Grant, G-eddes and Day, were co-partners in running a line of steamboats from New Orleans to Mobile and certain points on tbe Mississippi sea-coast, carrying freight and passengers and the United States mail, to and from the several points at which they touched; that, during the winter season, Pascagoula was not one of the points at which the boats of the line running to and from New Orleans and Mobile, were advertised to stop at stated times for taking freight, passengers and mails, the business of the company at that point being, for the most part, during the winter season, performed by one of their boats, called the “ Creole,” which plied between that place and New Orleans; but that it was their custom to stop their boats running between New Orleans and Mobile, at the places on the coast, upon giving notice by advertisement; - that on the 21st December, 1853, the Postmaster at Pascagoula received from the office of the Mail Line Agency the following letter, which was brought by one of the boats of the Company, and delivered by the mail messenger from the boat:—

“ Office of the Mail Line Agency, New Orleans, Dec. 20, ’58.

• “ Postmaster, Pascagoula: Dear Ser — This is to advise you that the mail-boat hence for Mobile on Saturday next, will stop at Pascagoula, instead of the steamer Creole. You will please have a mail in readiness for Mobile to go by said boat, and oblige, &c.

R. Geddes,

By Abrams.

“ N. B. — Advise all who may feel interested in the above.”

which letter was proved to be in the handwriting of Abrams, the confidential clerk of the company at New Orleans, Geddes being both agent and co-partner; that the letter was posted up near the post-office door immediately after its reception, and was known to the citizens of the place, and acted upon by some of them. It was further proved that notices of the voyages of the boats of the company were usually issued from the office of Geddes in New Orleans, and that Geddes stated that the Florida, one .of their boats, was to go to Pascagoula on the 24th December, 1853; but that Grant, the captain of that boat, stated, before he left New 'Orleans, that he would not stop at Pascagoula that night, but would run according to the regular advertisement, and that Ged-des had no right to engage the boat to go where she was not advertised.to go ; and that if there was any damage occasioned by the failure to stop in this case, Geddes ought to pay it. It further appears that the plaintiffs acted on information obtained at Pascagoula, that one of the boats would stop there on the night stated, the source of which was the letter to the postmaster, which was made public; and that the plaintiffs and several other persons remained on the wharf during the whole night, exposed to severe cold and much suffering, waiting to take passage to Mobile; but that she passed by without stopping.

We will now examine such of the objections to the instruction as appear to us to have any .force.

And the first that we will notice is, that the instruction assumes it as proved that the letter to the postmaster was the act of the company, and written by their authority, instead of submitting that question to be decided upon the facts of the case by the jury.

The evidence shows clearly that the letter was written by the clerk of the company, and was forwarded and delivered by one of their boats; that it was the practice with them for announcements of trips of their boats to be issued from their office from which this letter was written, and that their agent and co-partner acknowledged that their boat was to go to Pascagoula on the 24th December, and that Grant, the captain, said, before leaving New Orleans, that he would not go there that night, and that if any damage was sustained by the failure, it should fall upon Geddes. This shows fully that the appointment and notice of the stopping of the boat at Pascagoula at the time specified, were made and issued by the authority of Geddes, the co-partner, and according to the practice of the office of the company in ordering their trips. And there is no evidence tending to show that the notice was not issued from the office of the company, and by the direction or sanction of Geddes. Nor does that point appear to have been contested on the tidal in the court below. There could, therefore, be no impropriety in treating the appointment and notice as the engagement of the company, provided Geddes was competent to charge his co-partners by the act. .

But it is insisted that, though the letter was written by the authority of Geddes, the act was not binding upon the firm or upon tbe individual members of it, because it was beyond tbe scope of tbe partnership business, which did not extend to carrying passengers from Pascagoula to Mobile; that their business in which they were engaged, was to go with the mail-boats direct from New Orleans to Mobile, without stopping at intermediate points, in the winter season; and that the public had notice of this, by the general course of business of the company, and by advertisements in the newspapers; and, therefore, that Geddes had no power, either as a co-partner or as agent of the firm, to bind his co-partners by an act so foreign to the proper business of the company.

It is true that a partner cannot bind the firm by an act clearly not within the partnership business; yet he has power to bind the firm in all parts of the business in which it is engaged, and in all transactions, whether direct or incidental, appertaining to its business. And though the partner exceed the terms of the partnership, yet so far as third persons having transactions with them, •without notice, are concerned, the co-partners are bound, if the transaction be such as third persons may reasonably conclude to be embraced within the partnership business, or be incident or appropriate to such business, according to the ordinary course and usage of carrying it on. Collyer on Part. § 384. In transactions which, from their nature, appear to the world to be legitimately connected with the business of the partnership in which they are openly engaged, arrangements between the partners cannot affect their ordinary responsibilities to third persons who have not assented to such arrangement; or have not had notice of it. Ib. § 386, et seq. The formation of the partnership and the apparent inclusion of the particular transaction within the kind of business pursued by the firm, import a general authority held out to the world, to which the world has the right to trust. Winship v. Bank U. S., 5 Peters, 529, 561.

It appears by the evidence in the record, that from the 1st November to 1st June, the regular course of the mail-boats belonging to the company, as advertised in the newspapers at New Orleans, was not to stop at any point on the coast, on their trips from New Orleans to Mobile. But it is shown by the testimony of the clerk of the boat, whose failure gave rise to this suit, that it was the custom of the mail boats to land on the coast, whenever they advertised to do so at any particular'point, and to comply, unless in the judgment of the captain and pilot it would endanger the prompt arrival of the mail. Thus it appears that, although the general course was not to stop at the points on the coast in the winter season, yet it was their practice to make special appointments to stop and to comply with them, unless prevented by good causes. This is shown to have been the custom of the company; and it must be presumed to have been relied on by the community, whenever notices were given of these special stoppages. Not only, then, were these special stoppages apparently within the business in which the company was engaged, but it was their practice to make them as a part of their regular and legitimate business upon notice given to the public that they would do so; and it cannot be said that they were not as much bound for the legal consequences of such appointments as they were for those appertaining to their engagements at New Orleans and Mobile.

Another objection urged against the instruction is that it did not confine the jury, in determining the question, whether the publication was intended as a notice that passengers would be taken on the appointed trip, to the evidence before them, but left them to act on their belief from any cause.

This objection does not appear to have been made to the instruction when it was given. The evidence tended clearly to show that the transportation of passengers and freight from the points at which the boats of the company touched, as well as the conveyance of the mails, was a material part of the business in which they were engaged; and that does not appear to have been contested on the trial. The jury were, therefore, well warranted in believing that the appointment and notice in question, were made with reference to both of these objects. And though the objection, which is rather literal than substantial in its character, might have been sustained before verdict, yet after verdict, and when the finding upon the point appears to be sustained by the evidence, it is too late to raise such an objection, and give it the effect of setting aside the verdict. The presumption is that the verdict was found on the evidence, because the evidence rvarranted the finding.

It is also objected, that tbe letter could not be considered as a notice to take passengers, but must be held to have reference only to taking the mail, and to persons interested in transmitting letters and papers by the mail; and further, that it was not competent to explain, by evidence apart from the letter, what was intended by the postscript to the letter, to “ advise all who may feel interested in the above.” But these objections are manifestlyun-tenable. It was certainly competent to show what class or classes of persons were intended to be embraced in the general expression, “ all who may feel interested,” in the notice. And the persons intended to be notified must have been such as were concerned in the ordinary business in which the mail line company were engaged. If that business was both to carry mails and to transport passengers at the same time, it was competent to shpw that fact, in order to understand the persons for whom the notice was intended.

Nor can the letter and postscript be properly considered as having reference only to the mail and persons interested in that. The language is general, that all uwho might feel interested” in the fact that a mail boat would stop at Pascagoula, at the time appointed, should be advised thereof. If they were interested in any other manner than with respect to the mail, they are embraced within the general language used. And it is plain that the notice was intended for others than those interested in the mail, because it was the business of the postmaster to give notice of the fact, that an extra mail would leave that point at the time appointed; and it is not to be presumed that the mere carriers of the mail intended to direct him asjto a matter connected with his duty. Something more than this was clearly intended.

The question was, whether the mail line company were under a legal obligation to stop at Pascagoula at the time specified, and to take passengers on their boat to Mobile. In determining that question, it was proper to consider not only the letter making the appointment, but the circumstances under which it was written, if necessary to a correct understanding of it, and the business in which the company was engaged and with reference to which it was written; and upon no just principle, could the extent of the obligation be confined to the letter itself. Moreover, there was no objection to the admission of the parol evidence upon this point, and no motion to exclude it or to direct the jury to disregard it. And upon this ground, it was proper to be considered by the jury.

The second instruction given at the instance of the plaintiffs is objected to, because it assumes that the company authorized the letter, or were bound by it. This objection has already been considered, in what is above said upon the first instruction ; and for the reasons then stated, no prejudice was done to the defendant by the reference in this instruction to the notice and publication of the stoppage of the boat.

The next objection is to the fourth instruction, which is as follows : “ That no engagement of said steamboat mail line as carriers of the mail, is any extenuation or excuse for their breach of promise to the plaintiffs, made by their written engagement given in evidence in this suit.”

This instruction is objected to on the grounds, First, that it was the primary business of the company to carry the mail; and that, if there were just grounds for believing that they would fail in their obligation to deliver the mail in due time at Mobile, by reason of the boat’s stopping at Pascagoula, according to the appointment, the boat was justifiable in not complying with the appointment; and Second, that the obligation to deliver the mail, and the danger of failure therein, in consequence of the state of the winds and weather at the time, were sufficient reasons why exemplai-y damages should not be awarded.

This objection proceeds upon the assumption that the paramount obligation of the company was to carry the mail. But that does not appear to be sustained by the evidence. On the contrary, for aught that appears, the company were as much bound to transport passengers as to carry the mails in their boats. Both of these branches of business appear to have been equally objects of pursuit and profit by the company; and the rights of the public were independent of those of the United States. In the absence of any statute regulations or of any special contract, the obligations entered into to the United States could not impair the obligations of the company to individuals, in the due course of their business; and if the company thought fit to incur obligations to different parties, the performance of which might be incompatible with each other, both parties being entitled in equal right, it would be no excuse to the party aggrieved by the default, that the company could not perform both obligations, and thought proper to perform that to the other party. For each party had an equal right to performance of the obligation; and it was the misfortune or fault of the company if they undertook incompatible obligations; but no ground of immunity from either of them.

If, therefore, it was the duty of the company to send their boat to Pascagoula at the time specified, as a carrier of passengers and freight, according to the course of their business, they had no right to disregard that obligation, and to excuse themselves because they were unable to perform that obligation and, also, the contract which they had made .to carry the United States mail. And it was for the jury to determine, upon consideration of all the circumstances, whether of mitigation or of aggravation, what damages should be awarded to the party aggrieved, by the delinquency.

We think, therefore, that there was no error in this instruction.

Again, objection is made to the refusal of the fourth instruction asked by the defendant, which is that “if the plaintiffs went to Pascagoula, knowing that the boat would not or could not stop there on the night.of the 24th December, 1853, with a view to seek an advantage, or to get a cause of action, so as to enable him to sue the defendant for damages, the verdict should be for the defendant.”

There appears to be no evidence tending to show that M'Caughan went to Pascagoula with the knowledge or intention here supposed. For he did not know of the appointment until he arrived there; and he had made arrangements to go to Mobile otherwise, until he learned that the mail-boat would stop on her trip to that place at the time specified. There is nothing whatever to show that he supposed that the boat would not or could not comply with the appointment. Indeed, his entire conduct shows quite the contrary. There was, therefore, no evidence upon which the instruction could be properly predicated; and that is a sufficient reason for its refusal; for it could have bad no other effect than to suggest to the jury facts which were not in evidence before them.

The last objection to the instructions which we will notice, applies to those in relation to the rule of damages. The sixth instruction given at the instance of the plaintiffs, is as follows:—

“ If the jury believe from the evidence that the plaintiffs, relying upon the written publication of the defendant, did await on the wharf, and at the usual place for the arrival of the mail-boat promised, and said boat did not come in; and that said publication was false and calculated to deceive and did deceive the plaintiffs, they may assess such damages for such false publication and deceit as in their discretion they may consider the plaintiffs suffered by such falsehood and deception.

On the contrary, the following instructions were asked in behalf of the defendant, and refused: “Seventh. That if the jury shall believe from the evidence that the plaintiffs are entitled to recover any damages; then the true rule of estimating such damages is the actual amount of pecuniary loss sustained by the plaintiffs for money paid out and for their time lost.”

“Ninth. That the true rule of estimating damages for the non-performance of contracts or duties created or imposed by the law in which there is no element of fraud, wilful negligence or malice, is the direct pecuniary loss which includes no more than the money actually expended, and fair compensation for the time lost by the plaintiffs in this case, and the jury should be governed by this rule in estimating the damages in this case.”

Instead of this last instruction, the court gave the following:— “ That the jury should not, in this case, assess exemplary damages against the defendant, unless they believe that their representations to the travelling public were false and calculated to deceive and did deceive the plaintiffs.”

The objection to the rulings of the court, upon these instructions, assumes that the action was founded on the special contract of the mail line company. We have above seen that such is not a proper view of the nature of the action, which is one of tort for the personal grievance done to the plaintiffs by fraud, gross negligence or oppression. And in such cases, it is now too well settled to admit of controversy, that the jnry may, in their discretion, award such damages by way of punishment, or for the sake of example, as they may think that the peculiar circumstances of the wrong to the plaintiff justifies. Sedgwick on Damages, 38, 39, et seq.; 489, et seq.; Bell v. Morrison, 27 Miss. 68; Vicksburg and Jackson Railroad Co. v. Patton, 30 Miss. R. 156.

There was testimony tending to show that the captain in charge of the boat, which was published to stop at Pascagoula, at the time specified, wilfully and capriciously disregarded the obligation incurred by the publication ; and that the failure occasioned great bodily exposure and mental suffering and disappointment to the plaintiffs. These circumstances were properly submitted to the jury, to be considered by them, together with the circumstances of excuse or extenuation relied upon by the defendant; and it was their province to determine whether there was such fraud or wilful neglect of duty, causing oppression to the plaintiffs, and under such circumstances of aggravation as to warrant exemplary damages. This was the substance of the rulings of the court upon this point; and we perceive no error in them.

Exception was taken on the trial to the admission of evidence of the peculiar condition of health of Mrs. MeCaughan at the time of the grievance; and it is now contended that this evidence was inadmissible because her peculiar bodily condition was not alleged in the declaration as a circumstance of aggravation.

The action was for general damages arising directly from the grievance complained of, and as the necessary effect of the wrong. In such cases, the law implies or presumes damages to have accrued from the wrong, and it is not necessary to state the particular circumstances of aggravation in the declaration. 1 Chitty, Pl. 428; Burrus v. Madan, 2 John. R. 149. The rule is otherwise where the damage sustained has not necessarily accrued from the act complained of, and consequently is not implied by law. In such cases it is necessary that the declaration should state the special damage complained of, in order to prevent surprise on the defendant. 1 Chitt. Pl. 428.

The condition of the plaintiffs’ health is not alleged to be the special ground of the wrong, but it was proved on the trial as a circumstance of aggravation of the wrong, and to show how grievously the act, which was wrongful in itself, operated to the bodily distress of the plaintiff and his wife. This was entirely competent under the pleadings. Sedgwick on Damages, 210.

It remains only to' consider the grounds upon which it is urged that a new trial should have been awarded on the defendant’s motion, and which have not already been considered.

First. It is said that, as there was no evidence tending to show that Heirn had any actual participation in making the appointment for the stoppage of the boat at Pascagoula, or in giving the notice, or in the failure, he could not be held responsible, though his co-partners, Geddes and Grant might be; for one partner is not chargeable with the tort of his co-partners, done without his knowledge.

This would be true if the wrongful act was wholly unconnected with the partnership business. But where it is connected with the business of the firm, and is incident to it as the business is carried on, the tort of one partner is considered the joint and several tort of all the partners; and the partner doing the act is considered as the agent of the other partners. And it is held that, in such cases, all the members of the firm may be sued, or any one of them may be sued alone. Collyer on Part. § 457.

The evidence here was sufficient to sustain the finding of the jury, that it was the practice of the company to land their boats which plied from New Orleans to Mobile, at points on the intermediate coast, upon giving special notice thereof; and though this was done only occasionally during the winter season, it was a part of the business in which the company were engaged, and legitimately connected with it. But there is also testimony tending to show that the duty of publishing the voyages of the boats of the company was intrusted to Geddes, from whose office the announcement in this case was made. And whether he is regarded as acting as partner or agent, his acts connected with the business of the company, are chargeable either against all or any of the partners; and, of course, any of the partners is chargeable civiliter to the same extent to which his co-partner would be bound. If there has been an abuse of the authority exercised by the partner, that may be a matter to be settled between the partners. But tbe rights of third persons whose rights are affected by the transactions of one partner acting for the firm, in the course of its legitimate business, depend upon wholly different principles.

Secondly. It is contended that exemplary damages should not have been awarded, because the danger of landing at Pascagoula, by reason of the low tide and high wind at the time, was a sufficient excuse for not complying with the engagement; and at all events, that these*facts show an absence of such gross neglect or wilful violation of the engagement as would entitle the plaintiffs to exemplary damages.

As to the practicability of making the landing at the time, the1 testimony is conflicting, and it was for the jury to determine whether they would credit the witnesses for the plaintiffs or those for the defendant. It is plain that they acted upon the testimony of the former; and their finding is conclusive of the fact, under the circumstances in which it was presented for their determination.

It also appears that the question of gross neglect or wilful violation of duty, was submitted for their decision upon the evidence and instructions. And upon that point, in addition to the superior weight which they gave to the testimony of the plaintiffs’ witnesses bearing upon it, there was also evidence showing that Grant, the captain of the boat, whose duty it was to stop, declared, before leaving New Orleans, and before he could have known of the dangers of landing arising from the stormy weather, that he would not comply with the engagement. And considering all the evidence upon the point, we cannot say that the jury acted erroneously in finding as they did.

Having thus considered the several grounds of error insisted upon, we are brought to the conclusion that there is nothing in the record which would justify a reversal of the judgment; and it is accordingly affirmed.