Hackett v. B., C. & M. Railroad , 35 N.H. 390 ( 1857 )

Bell, J.

A confession is an admission of a cause of action, as alleged in the declaration, to the extent of its terms, and no further. If the defendants had said as to one thousand of the boards described, he admits the plaintiff’s action, it could not be reasonably contended that this was an admission of liability for the remaining seven. Such an admission is to be fairly construed, and must then be taken as it is made. The policy of the law relative to confessions, is to enable the defendant, by an admission of so much of the claim as he thinks fit, to limit the controversy to ’ne matters really in dispute, without in any respect changing Me situation of the parties as to the matters not admitted. It would go far to defeat the entire object of a confession, if it were held to contain any implied admission as to the matters left open to controversy. A confession may doubtless be made in such form as to admit, as many pleas do, the entire cause of action alleged, and it may be in many cases judicious to make the confession in that mode to save expense, as, if a party sued upon a judgment should admit the recovery of the judgment, and that a certain sum was due upon it, and plead payment of the residue a release, or the like. But where a cause of action is in its nature divisible, and the defendant confesses the cause of action in . part only, it is immaterial in what terms or in what manner the extent of the confession is limited ; it will not be construed to extend beyond those terms. And we do not understand ■ that the rule in this respect differs from that applied in cases of tender, or the payment of money into court. Either of these may be limited to a-part of the cause or causes of action alleged by the plaintiff, and they will not in such case be held, by any implication, to apply to any other cause, or part of a cause of action alleged. The ruling of the court upon this point seems to us entirely correct and proper. The cause of action was in its nature divisible, and the defendants might admit some negligence or fault of their servants, by which the plaintiff’s boards were injured to the amount of twenty dollars. They might consistently deny that they were guilty of any other or greater fault. And though H is complained that the jury must have been misled by it, we are unable to perceive any such necessary or natural result.

It is objected to the testimony of Kimball -that he was permitted to describe the lumber, which he had known sold at a certain price, as like the lumber in dispute, instead of describing it and leaving the jury to judge of its similarity. Though the opinions of witnesses are not admissible in evidence generally, except on questions of skill and science —Patterson v. Colebrook, 9 Foster 94 — yet this rule admits of a large class of exceptions, from the nature of the subjects inquired about. In most cases, where a witness is examined as to distances, or as to the dimensions, weight, or any quality of the matter in question, he can not testify, except by the use of language, which necessarily implies his opinion, and if he attempts to describe the article, so as to enable the jury to judge, the language of his description equally contains an expression of his opinion. From the nature of the case such testimony must be admitted, and its weight is to be tested by the means and opportunities of the witness to make reliable observations, and his apparent ability to judge correctly. This distinction is recognized in the case last cited, where, it is said, a witness in giving a description of the subject matter in dispute must, oftentimes, necessarily exercise, to some extent, his judgment, and his statements can not be entirely free from opinion. But that is a different matter from drawing conclusions from detailed or admitted facts, and expressing an opinion in regard to them. It would be one thing for a witness to say that there was a ditch in the road about a foot deep, or a log extending to the middle of the road, and quote another to express the opinion that neither of them caused the accident, or that they did.

To judge of the qualities of lumber, is, to a great extent, a matter of art and and skill peculiar to those whose business renders them conversant with matters of this kind. The opinion of the witness, if he is shown to possess skill, is, in such case, properly admissible. The evidence tended to show the witness a man of skill, and if no doubt was cast upon this point, his opinion was competent on that ground.

It is a perfect defence for a common carrier to show that the damage happened in consequence of some one or more of that class of occurrences, such as those denominated acts of God, or of public enemies, for which he is not by law accountable. Edw. Bail. 454; Story Bail. 319; Ang. Carriers 46, 67. The ruling on this point seems to us free of any just exception.

The rules of damages stated to the jury seem to us correct. They were, 1. That if there was no actual delivery of the goods at the end of the journey, by the fault of the railroad or its officers, and no equivalent of a delivery, the damages would be the full value of the lumber in Boston, as we understand it, at the time it should have been delivered, deducting the freight, if that had not been paid. This rule is sustained by the authorities. Edw. Bail. 570; Ang. Carriers 453; Sedg. Dam. 370; Brackett v. McNair, 14 Johns. 170; Wallace v. Vigors, 4 Blackf. 260; McGregore v. Kilgore, 6 Ohio 143; O'Conner v. Foster, 10 Watts 418.

2. If the lumber was delivered, or the carrier did what was equivalent to a delivery, but the goods were unduly delayed or damaged, the damages would be the difference between the value of the lumber at the place of delivery, if safely and seasonably conveyed, and its actual value when delivered, or ready for delivery. This rule rests on the same principle as the last. The owner then is made neither better nor worse by the failure of the carrier to discharge his obligations. Ang. Carriers, sec. 490; Bowman v. Teal, 23 Wend. 306.

3. Mere delay for a few days or weeks, with slight injury to the property, would not make the carrier liable for its whole value.

4. If the lumber, by the default of the carrier, was substantially changed in its character, so that it would not answer the ordinary purposes of lumber of this description, neither the consignee nor the owners was bound to receive it, and the carrier would consequently be answerable for its whole value. But such an injury as to render it unfit for stair-building, or other special purpose for which the consignee designed it, while it remained fit for all the ordinary uses of such property, would not be such a change of character, and the consignee .or owner would be bound to receive it, and the carrier would be answerable, not for its value, but for the damage only.

5. By a verdict for the plaintiff the property did not become the defendants’, unless he recovered for its entire loss. If the damages were for delay or partial damage, the property remained the former owner’s, and he was entitled to demand and recover it of the carrier.

The writ sets forth two distinct causes of action in distinct counts. The first alleges that the boards were not delivered, as they ought to have been, but instead, they were wholly spoiled, and rendered valueless, for want of due care and preservation by the defendants. The second alleges that the defendants did not use due and proper care; that said lumber should be conveyed safely and securely, but suffered it to be wholly spoiled, and rendered without value for want of due care and attention.

Under either of these counts the plaintiff could recover for the damage and spoiling of the lumber; under the second he could recover for nothing else. Under the first he might recover for an entire non-delivery of the goods, or for any damage from neglect to deliver them seasonably.

If the plaintiff claimed to recover for the non-delivery, and the defence had raised the question whether the defendants had not done what in law constituted a delivery, or the equivalent of a delivery, it would have been the duty of the court to have given to the jury suitable instructions upon that point, which was not done in this case ; the court observing that it was not clear what was such equivalent. But from the history of the case, as well as from the statement of the court, that that point was not material here, because the injury and. the delay for which damage was claimed occurred before the transit ended, and from the brief of the defendants’ counsel, we are satisfied that the question was not whether the railroad had done what was equivalent to a delivery, but rather whether the injury suffered by the boards was such as entitled the plaintiff to regard it as a total loss; and in this state of the case it was clearly no part of the duty of the court to discuss what might be a sufficient delivery, or the equivalent of a delivery. It might, upon the facts stated, have been contended that the pointing out of the lumber to the consignee, and his refusal to receive it, was a sufficient offer to deliver the lumber, to put an end to the liability of the railroad as common carriers, and to discharge their duty and contract, as such, in regard to the delivery, as to so much of the lumber as was not totally destroyed or rendered unfit for the ordinary uses to which it could be applied. But it does not appear that any such question was made.

It appears that the railroad gave to the consignee a notice of the arrival of the lumber, which proved upon his calling for it to be incorrect, the train having met with an accident by which its arrival bad been delayed. It does not appear that the plaintiff was prejudiced by the mistake in the notice. The observations of the court as to what had been held as to the duty to give notice, and its effect, was merely introductory to the statement that no question of that kind arose in the case, and it was therefore immaterial; and the same remark applies to the observation of the court, that if the plaintiff had lost his goods by reason of a false notice, the defendants would be liable, as it did not appear that any loss óf the goods resulted from that cause.

It does not appear that the defendants could have been prejudiced by the observation of the judge relative to a delivery, or in relation to the notice, the evident object of them being to suggest to the jury that no questions arose relative to these things, and thus to relieve the case from irrelevant matters.

The exceptions taken in the case must be overruled, and

Judgment rendered on the verdict.