133 Mich. 596 | Mich. | 1903
The plaintiffs have appealed from a verdict directed in favor of the defendant. They were co-partners engaged in the business of buying and' shipping fruit at Sparta. On September 25th the defendant sent to Sparta two refrigerator cars for their use, each car being furnished with 2,000 pounds of ice at Greenville, 26 miles distant. Plaintiffs began loading these cars the same .afternoon, and finished the next morning by 9 o’clock. After the loading, and before the cars left Sparta, they •accepted from the defendant’s agent at Sparta the bills of lading which are claimed to constitute the contract between the parties.. One of these cars was billed to Columbus, Ohio, the pther to Indianapolis, Ind. When the cars reached their respective destinations, it was found that
“Grand Trunk Railway System.
“ Bill of Lading.
“ Chas. M. Hays, General Manager.
“Sparta, Mich., Station, Sept. 26, 1900."
“Received from C. A. Johnson & Co., by the T., S. & M. Ry., in apparent good order (or as noted), the property described below (contents and value of package unknown), marked and consigned as per margin, and subject to carriers’ liability under the common law and statutes in force in the various States, Territories, provinces, or foreign countries through which the goods may pass.
“This bill of lading to be presented by consignee without alteration or erasure. If the property is not removed by the consignee within twenty-four (24) hours after reaching destination, it will be retained in car or otherwise stored at owner’s risk, subject to charge for use of said car or other storage; same, together with transportation charges, shall be a lien on the property.
“Any overcharge occurring on this bill of lading will be promptly adjusted.
“This bill of lading contracts rates from Sparta to Columbus, Ohio, via-, at- per-, and charges advanced at $-.
“Ice at Greenville, and re-ice as often as necessary to keep car thoroughly iced.
“R. D. Bancroft, Agent.”
The evidence shows that the cars left Sparta the day that the loading was finished, and within an hour thereafter, and at that time the plaintiffs claim to have been.
The other car left Durand on September 27th over the Grand Trunk Road, and reached Nichols, near Battle Creek, at 1:20 p. m. Plaintiffs say that defendant claims, but did not prove by competent testimony, that it was re-iced there. It left at 8:40 p. m., September 27th, and arrived at Grangers, Ind., about 1 o’clock a. m., September 28th. It was-then transferred to the Big Four Road at a quarter of 7 a. m. of the 28th, the ice tanks being half full of ice. It left for Indianapolis, where it arrived early on September 29th. At 7 a. m. it was found to contain about 600-pounds of ice. The peaches were badly decayed, and the car was re-iced at once. The fruit was sold, and brought $94.70 gross, and the cost was $170.
It was admitted by defendant that the contract bound
We are of the opinion that the learned circuit judge was incorrect in saying that a through contract to transport to Columbus was not made by the defendant. If the provisions of the bill of lading ought not to be construed as showing such an intention, in view of the statement that the property was received “subject to carriers’ liability under the common law and statutes,” etc., we should not overlook the fact that it contained some other provisions giving rights to and imposing obligations upon both parties. Among these there are some which should be given little weight as evidence showing a through contract, though all may be consistent with such a contract. The provision regarding re-icing, however, is a significant one. There is nothing in the bill of lading, or proof, to show authority on the part of the agent or defendant company to bind connecting lines to “re-ice the car as often as necessary to keep the car thoroughly iced,” yet it is evidently intended as a stipulation. It is contained in a receipt given to one shipping to a designated point by various lines stipulated. It is said that it only states a common-law liability of all roads. But does it not do more then state such a liability ? The common law undoubtedly requires care in transporting perishable goods, and, under modern methods, we have no doubt that it would be held to extend to proper refrigeration, according to established custom. Was not the shipper given to understand that his car would at all times be kept thoroughly iced, whether essential to the preservation of the fruit or not, thus providing additional assurance of safety ?
Again, the court held that there was no question for the jury as to injury while the cars were upon defendant’s road. Some correspondence, to be found in the files, relating to a proposed amendment of the record, indicates a misunderstanding between court and counsel, which explains the action of the court in this regard." As finally settled, the record contains some evidence tending to show that the cars were inadequately iced when furnished, and that plaintiffs were not aware of the fact until they were loaded, and too late to remedy the difficulty. It also appeared that the cars were delayed from two to three hours on their trip to Greenville; also that there was a delay, at Nichols, of one of the cars.
' We do not overlook defendant’s contention that plaintiffs accepted the bill of lading and are precluded from questioning what occurred before, but we think that they were entitled to a properly iced car under that instrument. Moreover, we are of the opinion that the' alleged discovery that the cars were warm and insufficiently iced, before their departure,-did not impose upon plaintiffs the responsibility, and relieve defendant from its obligation, if they had no opportunity to relieve the situation, or honestly believed the fruit would reach Greenville without injury. These were all proper questions for the jury.
The judgment is reversed, and a new trial ordered.