Hamburg-American Packet Co. v. Gattman

Mr. Justice Baker

delivered the opinion of the Court:

In the class of cases to which the present controversy belongs, we are permitted, by 'section 89 of the Practice act, in force July 1,1877, to examine the record as to questions of law only, and the determination of the circuit and Appellate courts upon all controverted questions of fact is conclusive. The judgment of the Appellate Court is final, not only in respect to the principal and ultimate facts upon which the right of recovery or ground of defense is claimed or based, but also in respect to the evidentiary and subordinate facts, which are mere evidence of such principal facts. Bridge Co. v. Comrs. of Highways, 101 Ill. 518; Fitch v. Johnson, 104 id. 118; Edgerton v. Weaver, 105 id. 43.

It is urged, however, that as at the close of the trial in the circuit court the appellant interposed a motion, which was overruled, and an exception taken, asking the court to direct the jury to find a verdict for the defendant, a question of law is thereby presented to this court. This motion can not now avail the appellant, for we find, upon examination of the testimony in the record, that there was evidence before the jury tending to prove every necessary element of the cause of action alleged in the declaration, and the action of the trial court was therefore proper.

It is insisted that the seizure and sale of the box of goods known as case No. 1, by the revenue officers of the United States, whether rightful or wrongful, relieved the carrier of all liability. The evidence of appellee and her witnesses tended to show that the box which was taken by the government officers was not the box which was lost by her. The trial court, at the instance of appellant, instructed the jury as follows:

“If the jury believe, from the evidence, that the case was the one seized on its arrival by the government officers, either because it actually contained or because the government officials supposed that it contained dutiable goods, and was immediately removed from the company’s dock, with or without notice to the defendant company of such seizure and removal, and thereafter held and disposed of by the United States government officers, whether such removal, seizure, holding and disposal were rightful or wrongful, the defendant company is exonerated from all charge of negligence, and your verdict must be for the defendant.”

It follows that the jury, in returning a verdict in favor of the plaintiff below, necessarily found, under the instructions of the court, against the identity of the box which was produced in court at the trial with the one which she lost, and that there was no sufficient proof that the missing box of appellee was seized, on its arrival, by government officials. This controverted question of fact having been decided by the jury and trial court in favor of appellee, and the judgment having been affirmed by the Appellate Court, the correctness of the conclusion reached can not now be called in question.

Appellee was an emigrant, and she carried with her, in addition, to the nine boxes of goods mentioned in the statement of the case, three trunks and thirteen pieces of hand-baggage. It seems she wras entitled, under her passage ticket, to have a certain portion of her effects carried free, but was obliged to pay, as freight, for the residue of her effects, at the rate of fifty marks per cubic meter. The declaration is- based on the theory of the shipment of the nine boxes as merchandise or freight. The contention of appellee at the trial was, that the missing box of goods was shipped as freight, and the contention of appellant was, that it was shipped as baggage, and that the doctrine of reasonable baggage was applicable to the case. Both theories of the evidence were submitted to the jury by the instructions of the court, and it is manifest, from the verdict, that they decided the point in favor of appellee. The mere payment of extra compensation on account of the over-weight of baggage does not convert such baggage into freight, and where merchandise to be used in trade is packed in a trunk and shipped as personal baggage, the carrier having no notice of the contents of such trunk, the liability of the latter therefor, as a common carrier, does not attach, as was held by this court in C. and C. Railroad Co. v. Marcus, 38 Ill. 223, and Michigan Southern and Northern Indiana Railroad Co. v. Oehm, 56 id. 293. But in the ease of an emigrant who carries with her trunks and other ordinary baggage, and also turns over to the common carrier a number of boxes of goods for transportation, and pays freight for the weight in excess of her baggage allowance, 'and the general character of the shipment is known to such carrier, it would be unjust to conclusively presume the entire shipment was as baggage, and that there could, in case of loss, be no recovery except for such articles contained in the boxes as would properly be designated, as necessary baggage.

Complaint is made that the court, at the instance of appellee, instructed the jury, in respect to the measure of damages, that if the cause of action was established, then the plaintiff was entitled to recover the value of the goods which the defendant failed to deliver upon demand made. It is claimed, that in view of section 4281 of the Be vised Statutes of the United States, and of the evidence that certain articles made in whole or in part of silk or lace were contained in the lost box of goods; the instruction was erroneous. The instruetion, however, was qualified by such clauses as, “for which you may find the defendant liable under the evidence and instructions of the court,” and “unless you believe, from the evidence, that the defendant was excused from such delivery by such cause as is set out in instructions given you for the defendant.” And in one of the instructions given for the defendant, the attention of the jury was called to said section 4281 of the statute, and they were expressly told that “the plaintiff is not entitled to recover from the defendant the value of any articles which the jury may believe, from the evidence, to have been contained in case No. 1, which are composed of silk, in a manufactured or unmanufactured form, wrought up or not wrought up, with any other material, furs or laces, unless the jury further find, from the evidence, that the defendant received from the plaintiff a written notice of the true character and value of the same at the time defendant received such case; and the court instructs the jury, that in assessing damages against the defendant, if they shall find the defendant guilty, they must omit entirely from their estimation all such articles as those above described.” In her testimony appellee stated the aggregate value of the goods contained in case No. 1, to be $2336, and the evidence indicates that the value of the lace and silk goods which came within the purview of section 4281 of the statute, were of the value of some $600, and the verdict of the jury was for only $1604.30. It would seem, therefore, that the jury were not misled by the instruction under consideration, but in applying it to the evidence, gave due effect to the qualifications contained therein, and to the subsequent and qualifying instruction of the court above quoted. We are unable to say the giving of the instruction complained of tyas error, or injuriously affected the rights of appellant.

Several other of the instructions given for appellee were not strictly accurate, and were open to verbal criticism, but in their statements of the law applicable to the case there was no substantial error. The jury was fully and fairly instructed in behalf of appellant in some twenty-three instructions given at its request, and we find no error in the refusal of the two or three that were denied by the court.

This case has been submitted to two juries in the trial court, and with substantially the same result. The present judgment has been twice considered in the Appellate Court, and both such considerations have been followed by orders of affirmance. In the opinion filed in the latter court, after the rehearing of the cause, it was said: “After two examinations of the evidence in this case, we are satisfied it shows a cause of action against the defendant below, as a common carrier. The defendant received a case of plaintiff’s goods at Hamburg, to be carried to the port of New York, and there safely delivered to the plaintiff. At that port, upon the arrival of the ship carrying the goods, the plaintiff caused a seasonable and proper demand to be made upon the defendant for the goods, and the defendant failed to deliver them or inform plaintiff where they were. They were lost. That made a cause of action, and the defendant failed to show any legal justification in the premises.”

The issues of fact involved in the case were, as we have seen, conclusively settled in favor of appellee by the verdict of the jury and the judgment of affirmance in the Appellate Court. In our examination of the record we find no such error in the rulings of the trial court upon the instructions, or otherwise in respect to the law1 of the ease, as would justify a reversal. The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in its decision here.