32 Mich. 251 | Mich. | 1875
Defendants in error sued plaintiffs in error for damages for not safely carrying and delivering certain hay from Marquette to Negaunee. The hay was found to be wet and damaged, and a portion was not carried at all, but left at Marquette. The carriage was by the Marquette and Ontona-gon Railroad Company, which afterwards became consolidated with another company into the corporation which is a party to this suit.
The- declaration averred nothing concerning the old company, but charged the transaction as having been with the present corporation. This was claimed on the trial to have been a variance, but the court below held otherwise. In this there was error. Such an allegation could only be proper where the same corporation continues under a new name. But while our laws subject consolidated companies to the obligations of their constituents, the consolidation creates a new and distinct corporation, and any declaration against this for an old cause of action should show against what company it arose, and aver such facts as will subject the new company to be sued upon it. The ruling to the contrary was erroneous.
The principal controversy on the trial arose concerning the condition of the hay when received by the railroad company, and the care or negligence of the company in handling it. If the hay was in dry and good condition when so received, the responsibility for damage would have been very different from that arising under different circumstances. The first thing devolving on plaintiffs below was proof of the condition of the hay when taken into control, of the railroad at Marquette.
Instead of attempting any such proof, the plaintiffs below
These rulings cannot be sustained on any principle whatever. It was a necessary part of plaintiffs’ case to show a delivery at Marquette to the railroad company of hay in good order, and the failure by the company to carry and deliver it in good order; or, in other words, that the hay had been damaged by their neglect. It was going very far to allow any inquiry whatever into the condition of the hay before it reached the railroad, and such indirect proof could only be properly resorted to in the absence of more direct evidence. Its object could only be to furnish means of knowing the condition at Marquette; and, except as it may have had a bearing on that fact, it was useless and improper. Cross-examination upon any facts which would in any way aid in explaining that condition, or its causes, was not only pertinent, but wont to the most vital part of plaintiffs’ case. It covered ground which plaintiffs ought not to have left to inference, and on which they had the burden of proof. It formed no part of the defense. It was for plaintiffs to make out the good condition of their property in the first place. Defendants were not concerned with its condition before they received it, and wore not bound to make any showing on the subject, unless in denial of a case made out against them on the plaintiffs’ proofs. The defense was not in avoidance, but in denial of plaintiffs’ case.
This error runs through a large part of the testimony,
There is also some confusion upon the question of dam.ages. The plaintiffs could only recover in such a case the damages caused by the misconduct of the railroad. The value at the place of destination could not properly be taken .ás a test, without deducting what it cost to have defendants take it there; and the value of sound hay could not be recovered unless sound hay had been delivered to defendants, .and injured while in their custody. The record is somewhat blind upon several questions raised by the assignment of errors, and it will be better to omit discussing questions not ■clearly stated, as well as those not likely to arise again.
For the reasons given, the judgment must be reversed, .and a new trial granted, with costs of this court.