131 Ill. App. 426 | Ill. App. Ct. | 1907
delivered the opinion of the court.
It is first objected that the trial court refused to permit Craven to testify on cross-examination that Anda gave him instructions regarding the shipment. This is not well taken, in view of the fact that Anda had parted with his interest in the shipment to the Union Trust Company when he assigned and delivered the bills of lading as collateral security to the draft which the bank cashed, of which appellant had actual knowledge.
The contract of shipment, appellant claims, must be interpreted by the law of this forum, and that section 2, chap. 141, R. S., title “Unclaimed Property,” is a complete, defense and authority for disposing of the potatoes in the condition its evidence showed them to be on arrival at Williamsport. At the time of issuing the bills of lading in suit the potatoes were at Brie, Pennsylvania, and if it were material, and we are inclined to the opinion it is not, appellant, by introducing in evidence a decision of the Supreme Court of Pennsylvania, Morrison v. Davis, 20 Pa. St. 171, deliberately invoked the law of that commonwealth by which to interpret and measure its liability, and it cannot be permitted subsequently to change its position by now invoking such protection as the statute of this state might, in a proper case, afford. But it is obvious the Illinois statute can afford no escape from appellant’s liability, even if its contract of shipment was to be construed by the law of this state.
A letter of one Parsons, appellant’s freight agent at Williamsport, to the West Branch National Bank, formed part of a deposition taken by appellee. On the trial appellee did not read the part of the deposition referring to the letter, or offer the letter itself as evidence. Appellant thereupon offered the omitted portion of the deposition as part of its proof, as also the letter in evidence; the objection of appellee to the letter being sustained, it was excluded. The letter was self-serving, its contents hearsay and inadmissible by either party against objection. But it is insisted that appellee is bound by it because it was brought into the proof by deposition found on file, taken by appellee. This is founded on a misconception of the law. A party taking a deposition may, in his discretion, abandon it on the trial. In this condition the opposing party may use it, if he desires. When he does use it, he is bound by it to the same extent as any other evidence he proffers. It is also subject to the same objections as would be proper if such opposing party had taken the deposition in the first instance on his own behalf; the other party having the same right of objection in every respect, even to the impeachment of the witness. It was so held in McCormick v. Leister, 81 Ill. App. 316, the court saying: “But by introducing the evidence of Schappert—deposition—appellees made Mm their own witness, as much so as if they had called him from the bystanders and examined him in person, or as if appellees themselves had first moved in the matter of taking his deposition. So conclusively did this make him the witness of appellants, that after they put in his deposition, appellant might have put in evidence to impeach him.” Adams v. Russell, 85 Ill. 285.
The limitation of appellant’s liability contained in the bills of lading does not, in the absence of proof that such limitation was brought to the attention of the shipper and assented to by him, operate to relieve appellant of its common law liability to carry and deliver the consigned property to the destination named in the bills of lading. Such liability cannot be limited by notice. Nor can a carrier limit its common law liability safely to deliver the consigned property at the designated place of destination by any limitation expressed in its receipt for the property. The right to make any such limitation in a receipt is prohibited by section 102, chap. 114, and section 1,. chap. 27, R. S. Starr & Curtis’s ed. It has, however, been held in this state that the carrier’s liability by force of the common law may be limited by an express contract. Chicago & North Western Ry. v. Chapman, 133 Ill. 96; Field v. Chicago, R. I. & P. Ry., 71 Ill. 48.
“The rule that a limitation of a carrier’s liability for safe carriage and delivery of freight beyond the terminus of the carrier’s own line may be made by restrictions contained in that part of the bill of lading which may constitute a contract, has been recognized in 'this state, ’ ’ our Supreme Court said in C. & N. W. Ry. Co. v. Simon, 160 Ill. 648.
There is neither proof or claim that Williamsport, Pennsylvania, is beyond the terminus of appellant. Where, as in the case here under consideration, a contract limiting the carrier’s liability is contained in the bills of lading, which in their entirety constitute both á receipt and a contract, the burden of proof is on the carrier to show that the restrictions of its common law liability were assented to by the consignor. As to this the proof is silent.
The bills of lading recite that the potatoes were in apparent good condition on June 11, 1901, when they were at Erie, two days prior to their arrival at Williamsport. The bills of lading were received in evidence and constituted prima facie proof of that fact. This operated to cast the onus of proving to the contrary on appellant. It made no attempt to do so. •
The hypothetical question was not objectionable as assuming shipment from Traverse City, Michigan. This was a fact undisputed. It certainly was not evidence unfavorable to appellant, for it might—on the conceded fact that the potatoes were old—have introduced evidence tending to prove that such perishablé property was liable to spoil on so long a journey, even with the exercise of due care in transportation, taking, as it did, a period of ten days to accomplish. On the contrary appellee proved by expert witnesses that if properly loaded onto the cars, and thereafter hauled and handled with due care, these potatoes would have arrived at Williamsport in marketable condition. With the potatoes acknowledged to be in apparent good order on June 11th, and in appellant’s possession at that time, the law made it incumbent upon it to prove facts exculpating it from the presumption of negligence arising from their being in a rotten condition two days thereafter.
The evidence of appellee as to the value of the potatoes on arrival at Williamsport is not subject to the objections made to it by appellant. It was, in all the circumstances of market conditions where quotations prevailed and Williamsport as near a fair calculation as could be devised or expected. There was no market quotation at Williamsport. The nearest market where quotations for potatoes obtained was Pittsburgh. This market price was adopted with an allowanee for freight. There is no hard and fast rule of fixing values when applied to property at places lacking market quotations. Any method adopted, which is' obviously fair, and which duly conserves the rights and interests of the party sought to be made liable, will satisfy legal requirement.
We have examined with care all the instructions in the record, including those given as well as those refused, and are of the opinion that no substantial error, justifying a reversal, was committed by the trial court in its rulings thereon. The questions of fact were properly submitted to the jury, with principles of law enunciated in the instructions for the guidance of the jury in elucidating the facts.and measuring the amount of the damages. The jury were told, in substance, that the measure of damages was the value of the potatoes at the date of their arrival at Williamsport, less the charges of appellant for carrying them, and that appellant was not liable for damages which may have occurred to the potatoes merely by changes in the weather or from decay, providing such decay did not occur by reason of any lack of reasonable care during their transit while in the custody of appellant.
It is true, a misrecitation of a date occurs in one of the instructions given at the instance of appellant through a modification by the court. June 11th was changed to June 2nd. No dispute arose as -to these dates, and the jury could not have been misled by the mistake to the disadvantage of appellant. The error was without any prejudicial effect upon the rights of appellant.
It is plain that appellant is in the wrong on every material point of this controversy. It received the potatoes when they were in first-class order, and recited in the bills of lading given that they were in “apparent good condition.” With knowledge that the bills of lading were, with a draft drawn by the consignor, at the West Branch National Bank of Williamsport, and without right or authority, and in the teeth of its duty, both legal and in accord with business custom, it delivered the potatoes to the party upon whom the draft was drawn, without the payment of the draft or the delivery of the bills of lading. Its actions in this regard, and in not safely carrying the goods or offering any legal excuse for not so doing, lost to appellee the value of the property. For this breach of appellant’s common law duty it is legally answerable in sufficient damages to make appellee whole from the loss thus occasioned.
We are in accord with the jury’s finding of facts and assessment of damages, and in harmony with the rulings of the trial judge upon the law, and the judgment of the Circuit Court will be affirmed.
Affirmed.
