Michigan Southern & Northern Indiana Railroad v. Shurtz , 1859 Mich. LEXIS 85 ( 1859 )

Martin Ch. J.:

The principal question presented by this case, is whether the railroad company are liable as common carriers for the wheat deposited in their warehouse, to await orders for transportation, and a determination of what shall be its destination. We think they are not, nor should they be. By their charter the company have no right to charge as ware-housemen, for storage of goods awaiting transportation; but this disability does not of itself create any liability. When the goods are delivered to be transported to a specified point, the liability of the company as carriers commences immediately; but if they are deposited to await orders — if the company can not carry them because ignorant of the contemplated destination, or because no;,destination has been concluded upon by the owner, it would be gross injustice to hold them subject to the extraordinary liabilities of common carriers, while thus awaiting the determination of their owner. While the wheat was lying C in their warehouse awaiting the determination of Shurtz as to its destination, the company can not be regarded as any thing more than gratuitous bailees, and are liable only as such. If the intention of Shurtz can not be clearly seen to have been that it should be transported to any particular place, how can they be seen to be carriers of it? Can the company be carriers of a thing not to be carried? But when Shutz had determined to what point he would have his wheat transported, and had notified the company of such^determination, then their liability as carriers commenced, and it became their duty to forward it Avithout delay. This is the obligation of their charter, and a want of facilities for transportation will not relieve them from that liability.

There is no count in the declaration which will authorize a recovery for the destruction of the wheat, held by the company to await orders for its transportation, charging them as carriers. The theory of the first count of the declaration, — and it is under that, that the court below held that this proof was admissible, — is that the company were common carriers for hire, and that the plaintiff caused the wheat in question to be delivered to them to be conveyed to Toledo; and that this they undertook to do; but so carelessly and negligently conducted, that the wheat was destroyed. And a like theory, viz., that the wheat Avas in the company’s possession, subject wholly to their control, or to transportation ah, their convenience, and [according to their ability, runs through and characterizes all' the other counts, except one, in the declaration."

This fundamental error renders it unnecessary to consider the other questions raised by the bill of exceptions.

The judgment should be reversed, and a new trial ordered.

The other Justices concurred.