Michigan Central Company v. Mark Owen & Company/Opinion of the Court
Action in the municipal court of Chicago for damages for loss on several shipments of grapes, four car lots, shipped in sound and merchantable condition.

On receipt of the shipments bills of lading were issued. The total loss is alleged to have been 126 baskets of grapes of the value of $23.30. The municipal court found against plaintiff (respondent here, and it will be so referred to). The judgment was reversed by the Appellate Court, First District, of the state, and judgment awarded respondent which was affirmed by the Supreme Court of the state, to which an appeal was granted because the court of appeals considered that the case involved questions of importance 'on account of principal and collateral interests' which should be passed upon by the Supreme Court.

Our review is concerned with questions of law; the facts are undisputed. It is stipulated that the cars were transported by the railroad company from their respective points of origin to Chicago, arriving there at different days and times of the days. Upon the arrival of each car it was placed on a public delivery track of the railroad company and notice thereof given. Respondent accepted each car, breaking the seals thereof; and it is stipulated that at the time respondent started to unload, each of the cars contained the number of baskets and pounds of grapes received for transportation. The loss, whatever there was, occurred after the acceptance of the cars and their unloading had commenced, and whether the railroad company is liable therefor, and in what capacity liable-whether as carrier, or warehouseman, or at all-is the question in the case.

The answer depends upon the construction to be given to the first paragraph of section 5 of the bill of lading. It is as follows:

'Property not removed by the party entitled to receive it,      within 48 hours exclusive of legal holidays, after notice of      its arrival has been duly sent or given, may be kept in car,      depot, or place of delivery of the carrier subject to a      reasonable charge for storage and to carrier's responsibility      as warehouseman only, or may be, at the option of the      carrier, removed to and stored in a public or licensed      warehouse at the cost of the owner, and there held at owner's      risk and without liability on the part of the carrier and      subject to a lien for all freight and stored in a public or      licensed warehouse at the charge for storage.' Regarding the words of the section merely, carrier and subject to a lien for all freight and sense.' But controversies have arisen and judicial judgments have divided upon them. The point of the controversies has been, and is, as to the relation of the carrier to a shipment within 48 hours after notice of its arrival has been duly sent or given, and the contentions upon the point are in sharp antagonism. That of respondent is that the railroad company during the 48 hours is responsible as a carrier, this relation not terminating until the expiration of that time. The contention of the railroad company is contra, and that it, the company, is neither liable as a carrier or warehouseman. Not as carrier because the shipment had been delivered and accepted-not as warehouseman because no negligence has been proved against it. The Supreme Court decided against the contentions of the railroad company and held it liable for loss on all of the shipments. As to three of them we may say immediately, in disposition of them, respondent withdraws any claim on account of them, and confines the issue to one car which was undoubtedly unloaded within 48 hours of the notice of its arrival. There is question of the other cars.

The importance of the issue, however, still remains, although it is concerned with only 31 baskets of grapes, of the value of $8.68, and the difficulty of its determination is indicated by the fact of the diversity of judicial reasoning upon a like issue in other cases. And counsel have been at pains to set the cases in opposition with approving or disapproving comment of their own.

The differences of the cases cannot be reconciled and a review of them for the purpose of selection would manifestly extend this opinion to a great length. Their outside principle is simple enough; the bill of lading is a contract between the transportation company and him who is interested in the shipment, and legal when within the policy and edicts of the law regulating that relation. 

By recurring to section 5 of the bill of lading, it will be seen that it supposes a contingency and provides for its occurrence. it supposes that property may not be removed when it has reached destination, and is available for delivery, and two periods of time are provided for. One of 48 hours after notice of the arrival of the property has been sent or given. During this time there is no declaration of the relation of the railroad company to the property. The other period commences at the expiration of the first or 48-hour period, during which the provision is that the property is subject 'to carrier's responsibility as warehouseman only.' The comparison has its significance and must be accounted for. Realizing this, the railroad company makes a distinction. Its contention is that where delivery has been made of the property as, it insists was true, in the case at bar, the responsibility of the railroad company as carrier immediately ceases. If, however, it is neither delivered nor removed within 48 hours after notice of its arrival, the responsibility of the railroad company thereafter is that of 'warehouseman only.'

To the distinction and the contention based upon it, the Supreme Court of the state answered that the bill of lading provides for property 'not removed'-not to property 'delivered' or 'not delivered,' and it must be taken at its word.

The answer puts too much emphasis upon the distinction between property removed and property delivered. The property here was not delivered; access was only given to it that it might be removed, and 48 hours were given for the purpose. Pending that time it was within the custody of the railroad company, the company having the same relation to it that the company acquired by its receipt and had during its transportation.

The bill of lading is definite, as we have pointed out, in its provisions and of the time at which responsibility of the company shall be that of warehouseman, and by necessary implication, therefore, until that responsibility attaches, that of carrier exists.

All the elements of the case considered and assigned their persuasive force, we think the judgment of the Supreme Court should be and it is

Affirmed.

Mr. Justice MCREYNOLDS dissenting. 

Notes