Doty v. Strong , 1 Bur. 158 ( 1843 )

Dunn, C. J.

Error is prosecuted in this case to reverse the decisions and opinions of the district court of Dane county, on the various grounds presented in the assignment of errors. The declaration of Strong, plaintiff in the court below, alleges: “That the defendants (who are plaintiffs in error) made arrangements on or about the 26th of May, 1838, at Grreen Bay, in the county of Brown, and Territory of Wisconsin, to transport merchandise from said Grreen Bay to a place called the Wisconsin Portage, at or near Fort Winnebago, in the county of Portage, in said Territory, in Durham boats of thirty tons burden, and that they then and there undertook, assumed and promised to the public, to transport, for the sum of one dollar and twenty-five cents per hundred pounds, from Green Bay aforesaid, to the Wisconsin Portage aforesaid, all such merchandise or freight as they should thereafter reasonably be requested to do.” And the said plaintiff further averred in his said declaration, “that afterward, on the 10th day of September, 1839, at Green Bay aforesaid, he then and there had a large quantity of freight, consisting of household furniture and merchandise, of the weight of twelve thousand pounds, and that the defendants were then and there requested by the agents of the plaintiff to transport the same from Green Bay aforesaid to the Wisconsin Portage aforesaid, but the said defendants, not regarding their said undertaking, refused so to do, to the damage of the plaintiff,” etc., etc., alleging special damage. The general issue was pleaded, and issue being joined, the parties proceeded to trial. During the progress of the trial many exceptions were taken to the opinions of the court, which will be considered in their order.

The last error assigned to an opinion of the court, on a question which had arisen before issue joined, for the sake of order, will be first considered. It is insisted by the plaintiffs in error, that “the court erred in refusing to entertain the demurrer filed by the said Jones and Irwin to the declaration of the said plaintiff below at the November term of the court.” To understand this supposed error, it is necessary to consult the record embracing this part of the proceedings in the case. Prom the record it appears, that at the said November term, two of the defendants below, Jones and Irwin, were in an attitude to be defaulted for want of a plea under a rule; that the plaintiff below waived his right to a default, upon the terms that the said defendants should plead to the merits and proceed to trial. The defendants, under this waiver, filed their general demurrer, to which the plaintiff Strong objected, as against the terms of the waiver. The court continued the objection under advisement to a subsequent day of the term, and thereafter, on the seventh day of the term, the court decided “that the said plaintiff had a right to insist on the terms of his waiver,” whereupon, on leave, said plaintiff withdrew his joinder in demurrer, and the said defendants Jones and Irwin pleaded the general issue, the plaintiff joined, and the trial progressed.

We are of opinion that the terms of waiver are suchas the plaintiff might properly have imposed ; that the demurrer was not a plea to the merits, therefore not a compliance with the terms ; that the plaintiff interposed his objection timely, and that the court decided correctly in enforcing the terms. The joinder in demurrer, after the objection raised, without withdrawing it, does not vary the case, or imply a consent of the plaintiff to join in demurrer and waive his term, because his objection was pending for the opinion of the court, which if sustained, dispensed at once with the demurrer, and the joinder was only contingent, to be entertained if the objections were overruled.

The leave to withdraw the joinder was not necessary, as by the decision of the court, the demurrer was rejected as against the terms of the waiver.

In addition to the supposed error disposed of, the following are assigned:

1. The court erred in admitting the newspaper containing the advertisement of the Fox River Navigation Company, and also the file of newspapers from July to October, 1838, in evidence.

2. The court erred in admitting in evidence the contract entered into between the plaintiff and Calvin Prink.

3. The court erred in admitting in evidence the contract entered into between the plaintiff and William Longdo.

4. The court erred in admitting in evidence the deposition of Thomas J. Ormsbee.

5. The court erred in refusing to instruct on the first point submitted by defendants.

6. The court erred in refusing to instruct on the second point submitted by defendants.

7. The court erred in refusing to instruct on the third point submitted by defendants.

8. The court erred in refusing to instruct on the fourth point submitted by defendants.

9. The court erred in refusing to instruct on the fifth point submitted by defendants.

10. The court erred in refusing to instruct on the sixth point submitted by defendants.

11. The court erred in refusing to instruct on the seventh point submitted by defendants.

12. The court erred in refusing to instruct on the eighth point submitted by defendants.

13. The court erred in refusing to instruct on the ninth point submitted by defendants.

The defendants below were sued as common carriers ; “persons who undertake for hire or reward to transport the goods of such as choose to employ them from place to place.” To make them liable as such, it is certainly incumbent on the plaintiff below to prove that they were, at the time of the act complained of, common carriers within the definition laid down, by such acts on their part, as indisputably fixed that vocation upon them. An advertisement in the public newspapers, notifying the public that they had undertaken the business of common carriers, is legal and proper evidence. It is necessary that the plaintiff should by evidence,, have identified the defendants with the public notice. The introduction of such evidence, unsupported at the time by proofs showing that the advertisement was the act of the defendants, might appear to be erroneous, but if in the progress of the trial, proofs are adduced supplying this deficiency, then the decision of the court in permitting the advertisement to be read in evidence, is relieved from every appearance of objection. The deposition of Ormsbee, made a part of the record in this case by the exception to the opinion of the court, permitting it to be read as evidence on the trial (which exception was not well taken, as we shall show), proves conclusively that the advertisement was the act of the defendants. The first error assigned is not well taken.

The second and third errors are similar, and may be disposed of together. The plaintiffs in error assume, that the district court erred in permitting two contracts, one between Strong, plaintiff below, and Calvin Frink, and the other between the said Strong and William Longdo, to be read as evidence on the trial. It is sufficient for the court to say, that the contracts referred to are not made a part of the record in this case by the bill of exceptions, and that the record presents nothing that will enable us to decide the points raised. Therefore, they are dismissed, without further comment.

The fourth error assigned, against the admission of the deposition of Ormsbee, is not apparent to the court. The rules, interrogatories and cross interrogatories, choice of commissioners by the parties, commission, taking of the deposition, certifying, sealing up and directing the same, are all unexceptionable. There were two points raised in the arguments of the error assigned: 1. The deposition was returned some two months after it was taken. 2. It was delivered by the plaintiff in the action into the district court, on the second day of the term at which the cause was tried, only four days before the trial. There is no rule of court or of law which limits the time of returning a deposition into court, or directs by whom or how it shall be conveyed. If a deposition is properly taken, certified, sealed up, directed, and the matter thereof is legal and proper evidence in the case, and it is ready in court before the trial, there certainly can exist no reason in law why it should not be read as evidence. We consider these to be the requisites of a legal and admissible deposition of a witness residing out of the Territory, under the law and rules of court. 1. The entry of a proper rule for a commission. 2. Due notice thereof to the opposite party, his agent or attorney. 3. The issuing of a commission under the rule in due form by the clerk, under seal, directed to the commissioner named, accompanied by a certified copy of all the interrogatories on file, with the names of the witnesses to be examined, and a copy of the first, fifth and sixth rules on the subject of depositions. 4. A compliance of the commissioners with the said fifth and sixth rules in taking the deposition and certifying the same. 5. A compliance with the said first rule in sealing up and directing the same ; and 6. That the matter thereof be legal and pertinent evidence in the case. Ormsbee5 s deposition, by applying this test, is free from exception, and the district court did not err in permitting it to be read as evidence on the trial.

The fifth error assigned is that the court erred in refusing to instruct the jury on the first point submitted by defendants.” The first instruction asked is: “If the jury believe that there is no proof of a contract between the plaintiff and defendants to carry the goods in question, other than the general advertisement to the public, then the plaintiff cannot recover.” In deciding this' question, we must consider the nature and extent of the undertaking of the defendants as applicable to the instruction asked. The definition of “ common carriers ” given, affords an easy solution of the question. “ A common carrier is one who undertakes for hire or reward, to transport the goods of such as choose to employ him, from place to place.” This is a general undertaking, and embraces every one in the community, and to make it particular, as an undertaking with a single individual, it is only necessary that he should apply with such goods as the common carrier has undertaken to transport, in condition to be transported, at the place designated, to have the goods carried on the terms proposed in the undertaking ; then the contract becomes identical with the person then applying, and it requires no other special contract between the parties, to subject the common carrier to all legal liabilities as such, to the person applying. Allen v. Sewell, 1 Wend. 237; Bank of Orange v. Brown, 3 Wend. 158. The district court decided correctly in refusing the instruction.

The sixth error assigned is, “that the court erred in refusing to instruct on the second point submitted by defendants.” The second instruction asked is: “If the jury believe that there is no proof of delivery of the goods in question, by the plaintiff or his agent to the defendants, and an acceptance by the defendants of said goods, then the plaintiff cannot recover.”

This instruction seems to have contemplated a different cause of action than that set up in the plaintiff ’ s declaration. This would have been a proper instruction in substance, if the plaintiff had sought to recover for negligence in carrying, or a failure to complete the carrying and delivery. This action is brought to recover damages for an absolute refusal to receive and carry; for a violation in limine of the undertaking of the defendants. It cannot be questioned that common carriers are liable for refusing to carry, when properly requested, as well as for negligently carrying or failing to carry after the freights have been delivered to them. Jackson v. Rodgers, 2 Show. 328. Chief Justice Jeffries held, “that the action was maintainable as wed against an innkeeper for refusing a guest, or a smith on the road who refuses to shoe a horse, being tendered satisfaction. The same opinion is held by Chief Justice Holt in Boson v. Sandford, 1 Show. 104. These opinions are sustained by various decisions referred to in the cases cited. To insist that there should be proof of delivery and acceptance, when the gist of the action is an absolute refusal to receive and carry, appears to the court to be entirely against law and reason. The district court was correct in refusing the instruction.

The seventh error assigned is, “ that the court erred in refusing to instruct on the third point submitted by defendants.” The third instruction asked is: “If the jury believe from the evidence, the goods in question remained in possession of the agent of the plaintiff, and never were in the possession of the defendants as carriers, then the plaintiff cannot recover.” It is so apparent, that it seems scarcely necessary for-the court to remark, that the reasoning and authority which disposes of the second instruction apply equally to this. If our opinion is sound on that, we must concur with the district court in the propriety of refusing this also.

The eighth error assigned is, ‘ ‘ that the court erred in refusing to instruct on the fourth point submitted by defendants.” The fourth instruction asked is : “ If the jury believe from the evidence, the goods in question were deposited by the plaintiff or his agent in the warehouse of Bruce, a third person, and that Bruce had a lien for charges on said goods, the defendants were, not bound to carry them in the absence of a special contract, unless the plaintiff shows, that said lien for charges was previously discharged, and he cannot recover.” This instruction also grows out of a misapprehension of the plaintiff’s true cause of action. Under a different state of case averred by the plaintiff and raised in the testimony, this instruction might have been proper. Considering the true cause of action and the facts presented on the record, it would not have been a proper instruction. If no other reason existed, the one assigned by the court was sufficient: “Because the supposition of charges is against the evidence in the case.” The rule is, that a refusal to instruct on abstract principles of law, not presented by the record, nor by the facts in the case, is not error, however correct the principle, when applied to a proper case. Without claiming that the court should respond to the facts iiq a case, it must necessarily respondió far as to decide whether -a principle of law is raised by the facts, that the case may not be embarrassed by matters entirely foreign. If the charge had been given, would the result have been different, presuming that no other than legal evidence was produced at the trial? Ormsbee’s deposition is the only evidence presented in the record for the inspection of this court; from this evidence, with the instruction, no other finding of the jury could have resulted. The district court properly refused the instruction.

The ninth error assigned is, “that the court refused to instruct on the fifth point submitted by defendants.” The fifth instruction asked is : “If the jury believe from the evidence, the defendants assumed to carry the goods in question for a certain price, and the plaintiff has not shown a compliance with the terms of such assumed contract, by tendering or paying said price, then the plaintiff cannot recover.” The court refused to give the instruction, and referred to the evidence in the deposition. This instruction is like the one just disposed of, upon which we have expressed an opinion.

The tenth error assigned is, “that the court erred in refusing to instruct on the sixth point submitted by the defendants.” The sixth instruction asked for is: “If the jury believe from the evidence, that the defendants did not assume to carry the goods in question, but merely neglected and refused to carry the said goods, the defendants are not liable under a general advertisement to carry for the public, and the plaintiff cannot recover.” We consider this ground of error disposed of, by our opinion on the first instruction asked for by the defendants below, and will add nothing further to what is there laid down.

The eleventh error assigned is, “that the court erred in refusing to instruct on the seventh point submitted by the defendants. ” The seventh instruction asked is: “If the jury believe from the evidence, that no freight boats passed up Pox river, after the plaintiff’s goods were deposited in Bruce’s warehouse and not in the possession of the defendants, then the plaintiff cannot recover.” Admit that the facts were as assumed in the instruction, they would not amount to a defense, even in a case to which they might apply. That boats could not possibly pass up Fox river at the time of the request made by the plaintiff, for causes entirely out of the control of the defendants, would excuse them for refusing to carry. The fact that they did not pass up is a very different thing, and more allied to the plaintiff s cause of action than to the defense. The court properly refused the instruction.

The twelfth error assigned is, “that the court erred in refusing to instruct on the eighth point submitted by defendants.” The eighth instruction asked is: “If the jury believe from the evidence, that there was no special contract to carry the goods in question, and no delivery of the same to 'the defendants by the plaintiff, and that there was only a qualified promise to carry the same if the defendants were able to do so, then the plaintiff cannot recover on an alleged breach of contract made to the public.” There are three distinct matters embraced in this instruction: No special contract; no delivery; and a qualified promise to carry, The two former have been disposed of against the error assigned, and the latter branch of the instruction was given as asked, with the remark by the court, that the facts show a different state of case. The language of the court in the instruction, “if there were only a qualified promise to convey the goods, the plaintiff cannot recover on a general promise,” fixes the character of the instruction, and shows conclusively, that the court intended the jury should respond to the facts, to which the principle of law was applicable. And the intimation in this instance does not infringe the rule, in its most rigorous sense, that the court should respond to the law, and the jury to the facts.

The thirteenth error assigned is, “that the court erred in refusing to instruct on the ninth point submitted by defendants.” The ninth instruction asked is: “The court is requested to instruct the jury, to throw out of consideration all evidence proving a special contract of the defendants with the plaintiff, in relation to the carriage of the goods in question, as the plaintiff has not alleged in his declaration any such contract with him.” The court refused so to instruct, remarking: “as the law, on the undertaking of the defendants as set forth in their advertisement, implies a contract; and as the court supposes from remarks made on the deposition of Ormsbee, objecting to the samé, for the reason that it was evidence of a special contract, that the instruction asked for is to rebut or reject that evidence.” The rule is, that a deposition or witness should be objected to at the time of offering to read the deposition or swear the witness. If once admitted, the court cannot take either from the jury by instruction. The court may instruct the jury to disregard evidence or testimony, on the ground of interest developed on the trial. The court properly refused the instruction.

It is the opinion of this court that the judgment of the district court of Dane county be affirmed, with costs.