author: Smith, J., Beaver, J.,

text:
    J. S. Allam v. Pennsylvania Railroad Company, Appellant.

      Common carrier — Presumption of negligence.

    Where goods are injured while in the custody of the carrier under a special contract, and he gives no account of how it occurred, a presumption of negligence follows of course: Express Co. v. Sands, 55 Pa. 140.

      Special custom, in relief of carrier — Requisite proof.

    In all cases where relief of a carrier’s liability at common law, by special custom or usage is relied on, such custom or usage must be clearly proved, and that the employer knew it, or is presumed to know it by reason of its generality in the neighborhood.

      Stipulation limiting carrier's liability — Public policy.

    Stipulations, insisted upon by carriers or other persons who stand in such a position toward their customers as enables them to compel a compliance with their demands or destroy their customer’s business, will be judged of by their fairness, and held to be void whenever they are unreasonable or oppressive: Willock v. R. R. Co., 166 Pa. 184.
    This principle applies alike to a custom and to a stipulation. Public policy compels its acceptance in all civilized countries.

      Carriers — Release from negligence — Public policy.

    Public policy forbids that any custom, stipulation or condition shall release the carrier from liability for negligence. Even a provision fixing the value of the property, or limiting the amount to be recovered, will not relieve the carrier if the loss or injury be due to negligence.

      Transition from carrier's to warehouseman's liability.

    When goods have been carried to place of destination, liability as carrier ceases, and the less onerous liability of warehouseman is substituted. This liability is only for negligence, measured by want of ordinary care.

      Railroads — Carrier's duty as to freight when landed.

    For a carrier to discharge freight without any attempt at making reasonable provision for its protection from dangers which, in the ordinary course of affairs, may naturally be apprehended, must be regarded as not only negligence but gross negligence.
    The carrier’s duty is not measured by the quantity of freight discharged; its duty is not discharged at any station, by dropping freight at the side of the road, whether on an open platform or in mud or snow, to remain exposed to the elements, to injury from other sources, or to theft, until the owner learns of its arrival and removes it. To give such a practice the legal sanction of a custom, or to enforce a stipulation permitting it, would be to place the public at the mercy of the carrier.

      Argued Oct. 6, 1896.
    Appeal, No. 21, Nov. T., 1896, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1894, No. 1329, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Beaver, J., dissents. Rice, P. J. and Willard, J. concur in the dissent.
    Assumpsit for lumber damaged in transit. Before Thayer, P. J.
    The action was to recover $627 damages to lumber shipped by plaintiff to Strafford station, which, it was alleged, was found lying beside the railroad at Strafford station in a damaged condition. The goods were delivered in two carloads. Strafford station is what is known as a prepaid freight station, — that is, a freight station at which there is no freight agent or warehouse. Upon shipments made to such stations all freight must be collected in advance. The two bills of lading in this case were issued by railways connected with the Pennsylvania Railroad, the freight charges were prepaid, and the freight was delivered to the defendant at the point of connection of the two railways. The bill of lading for the first carload contained the following-condition :
    “ Property destined to or taken from a station at which there is no regularly appointed agent, shall be entirely at risk of owner when unloaded from cars or until loaded in cars; and when received from or delivered on private or other sidings shall be at owner’s risk until the cars are attached to and affer they are detached from trains.”
    The bill of lading for the second carload contained the following condition:
    “The carriage of said merchandise shall be complete and freight charges earned when it has been held a reasonable time, say twelve working hours, subject to the owner’s order at the station or place where it is above agreed to be delivered, and if not then removed by the person or party entitled to receive the same, it may be removed and stored, or kept in the car, station, or place of delivery of the carrier, or otherwise, at the sole risk and further expense of such person or party without notice, except that when merchandise is destined to or from the several ‘ way stations ’ and platforms where station buildings have not been established by the carrier, or where there are no regularly-appointed freight agents, it shall be at the risk of the owner until loaded into the cars, and when unloaded therefrom, and Avhen received from or delivered on private turnouts it shall be at the owner’s risk until cars are attached to and after they are detached from the trains.”
    There were questions in the case which sent it to the jury, there being a conflict of evidence as to whether or not the defendant’s servants, who had the goods in charge on the train, had carefully unloaded them. The defendant offered evidence as to a custom upon all railroads to establish a prepaid freight station at winch there is no freight agent or warehouse ; that a prepaid station means such station where there is no freight agent or warehouse, and that it is the custom at such stations, as is set out in the bills of lading, to discharge the carriers from all responsibility as to the goods carried after their arrival at the station, and that they are at the risk of the owner after delivery at the station.
    Other facts appear in the opinion of the Superior Court.
    Verdict for plaintiff for $692. Defendant appealed.
    A motion for a new trial was refused by Thayer, P. J., in an opinion reported in 5th Dist. Reports, 54.

      Errors assigned were, (1) in charging the jury: “ With regard to that part of the case I feel bound to say that it was the duty of the railroad company to notify the consignee of the arrival of the goods. Whether it was a prepaid station or not, in my opinion, they cannot lawfully divest themselves of that responsibility. It is the duty of the carrier always to give notice of the arrival of freight to the consignee.”
    (2) In charging the jury: “ In those solitary country stations any person employed there to look after the railroad property —the station, the tracks, etc. — might easily be employed for such a purpose, but it is not the law, as I understand it, that any carrier can disembark goods from a ship or from cars and put them away to take their chance without saying anything to anybody, and without giving notice to anybody of their arrival. The whole mercantile community would be at the mercy of the carrier if the law was such as it has been argued to be upon that subject by the learned counsel who represents the defendant.”
    (3) In charging the jury: “ It is the habit, as we all know, of these carrying companies to incumber their bills of lading with a great variety of printed conditions, which are usually to be found in very small type on the backs of the bills of lading, and it is said here that some of those conditions relieve the defendants from giving notice. I do not find any such article or condition in any of these bills of lading, or anything which •expressly exempts them from giving notice. There is a paragraph in one of them which says that the goods at such stations shall, when unloaded, be at the risk of the consignee. To make short work of that, all such conditions in bills of lading as are legal and as do not contravene the rights of individuals are binding, and all others are void.”
    (4) In refusing to affirm defendant’s first point, and the answer thereto, as follows:
    “ The defendant in his first point has requested me to say to you that ‘ the defendant is entitled to the benefit of all the provisions and terms of the bill of lading issued by the companies to which these goods were delivered.’ That is true. The company which received the goods from the New Jersey company —that is, the defendant in this case — has the right to the benefit of all the conditions and provisions of the contract which the plaintiff made with that company; that is, the Pennsylvania Railroad can claim the benefit of all the provisions of the contract which the plaintiff made with the New Jersey company, which was the company that first received the goods from the plaintiff. So far as that goes, I affirm the point made by the defendant.
    “ But the point goes on to say: ‘ And under the fifth and thirteenth clauses of the respective bills of lading of October 7, 1893, and Februar}*- 22, 1894, the shipment at the station was at the risk of the shipper from the time of delivery at the point of consignment.’ That would have been so if they had given notice to the consignee of the arrival of the goods, but to say that the goods are at the risk when he does not know that they are there, and when they have neglected to give him any notice that they are there, is to say what I cannot agree to be the law. If notified, of coirrse it was his duty to be there to receive the goods promptly and to take them away. If not notified, it was not his duty to be there, and the company would not be justified in putting the goods out in a storm, where they would be exposed to the weather if they were perishable or of a nature to be injured by the storm. Do not forget that one of the points of inquiry is whether the goods were put out in the storm or not, because that is very material. That is alleged on one side and denied on the other. It is a question of fact which you are to find. I am only dealing now with the law upon a supposed state of facts. The application of the law to the facts is for you. If the goods were not put out in the storm, or if the plaintiff knew they were at the station or had reason to know that they were there, it was Ms duty to be on the alert to receive them and to protect his property. If, on the other hand, ho had no reason to believe that and had no notice from the company and if they put the goods out in the storm and they were injured, then they are liable for the loss.”
    (5) Refusal to affirm defendant’s second point, and the answer thereto, as follows:
    ■ “ Then I am asked to instruct you that ‘ It was, under all the evidence in the case, the duty of the consignee to be on the lookout for Ms property and ready to receive it on its arrival at the point of destination.’ I repeat what I have said upon that subject. Yes, if he was notified of its arrival, or if he knew of its arrival, or, I will say, if he knew when it would arrive. But, plainly, he could not be accused of negligence if he had no information or knowledge upon the subject of the arrival of the goods at all.”
    (6) Refusal to affirm defendant’s .third point, and the answer thereto, as follows:
    “The third point submitted to me is, that ‘It appears’from the evidence that Strafford was at the time a prepaid station at which there was no freight station, and that it was the custom of the company not to give notice to the consignee of the arrival of goods.’ If that was the custom, it was a very had custom indeed, and one which was contrary to law, and the sooner it is abolished the better, because it is the plain duty of every carrier, when goods reach their final destination, to give notice to the consignee of their arrival. Whether they were in the habit of doing so of not makes no difference as regards the rights of the party whose property has been injured by their negligence.”
    (7) Refusal to affirm defendant’s fourth point, which point was as follows:
    “ The evidence shows that the consignee did not use due diligence in protecting the goods by taking them to the house as soon as they arrived, and he cannot charge the loss caused by this neglect upon his part.”
    (8) Refusal to affirm defendant’s fifth point, which point was as follows:
    “ Under all the evidence in the case the verdict of the jury must be for the defendant.”

      Geo. Tucker Bispham, with him John Hampton Barnes, for appellant.
    The learned judge charged broadly, and so held in his opinion upon a rule for a new trial, that it is in all cases incumbent upon a carrier to give notice to a consignee of the arrival of his goods. There has been, and is, a conflict in the decisions in this country upon this point. No case in Pennsylvania supports the proposition of the trial judge. There are cases elsewhere which do assert such a proposition, but none of these cases hold that a contract may not be made discharging the carrier from that duty.
    If, however, the court should be of the opinion, as decided in the recent case of L. E. & W. Railroad Co. v. Hatch (Supreme Court of Ohio, March 10,1893), 39 Northeast Rep. 1042, that “ in the absence of both contract and statute to the contrary, sound policy and the present course of business require that the carrier should give notice to the consignee of the arrival of his goods, and that the consignee is entitled to a reasonable time. during business hours, after receipt of notice, to remove the goods,” then the critical question in this case is reached, namely:
    May a carrier make a contract with the shipper to carry his goods to a point on its line of railway and put them off at that point without notice to the consignee or storage in a warehouse?
    It is respectfully submitted that this proposition is sound in law and policy, and well supported by authority, as follows: Hutchinson on Carriers, section 376, and cases therein cited, as follows: McMasters v. R. R., 69 Pa. 374; R. R. v. Wood, 9 A. & E. R. R. Cases, 424. This contract, it is submitted, is not against any public policy, nor is it a contract attempting to discharge the carrier from any negligence in the performance of its duty: Buck v. R. R. Co., 150 Pa. 170.

      Alfred J. Wilkinson, for appellee.
    Goods cannot be thrown down in a station house, or on a platform, at their destination, in the name and nature of a delivery — the responsibility of a carrier lasts until some other responsibility begins, and if one who has received goods as a carrier sets up the less responsibility of a warehouseman, he must show affirmatively that the first named and greater responsibility has given place to the less onerous one — which fact is to be shown by some delivery or tender, or notice of, or storage at the owner’s risk: Chicago & R. I. R. R. v. Warren, 16 Ill. 505; Steamship Sultana v. Chapman, 5 Wis. 455; Milwaukee v. Fairchild, 6 Wis. 397.
    The law is well settled that a carrier is bound to give notice to the consignee of the arrival of goods: Cope v. Cordova, 1 Rawle, 210; Hemphill v. Chenie, 6 W. & S. 62 ; Tanner v. Oil Company, 53 Pa. 411; Angell on Carriers, 5th ed. 1877, sections 313-315. He is bound to the exercise of great care by the nature of his undertaking. He must not be negligent. It is against public policy that he should be. It is also a violation of his contract, which is to carry safely. A stipulation that is intended to protect him in the violation of his contract as a carrier and in disregarding a settled rule of public policy, will not be sustained. The cases in which this doctrine is recognized and applied in this state are very numerous, citing Beckman v. Shouse, 5 R. 179 ; Bingham v. Rogers, 6 W. & S. 495; Laing v. Colder, 8 Pa. 479; Goldey v. Railroad Company, 30 Pa. 242; Powell v. Railroad Company, 32 Pa. 414; American Express Company v. Sands, 55 Pa. 140; Railroad Company v. Miller, 87 Pa. 395; Grogan v. Adams Express Company, 114 Pa. 523; Pennsylvania Railroad Company v. Raiordon, 119 Pa. 577; Western Union Telegraph Company v. Stevenson, 128 Pa. 442; Phœnix Pot Works v. Railroad Company, 139 Pa. 284; Buck v. Pennsylvania Railroad Company, 150 Pa. 171.
    January 18, 1897:
   Opinion by

Smith, J.,

The plaintiff’s claim grows out of the alleged failure of the defendant, a carrier, to perform its duty in the transportation and delivery of goods shipped over its railroad. The evidence shows, without contradiction, that the goods were shipped by the plaintiff, in good condition, at Bethlehem, Pa., addressed to Samuel R. Riley, Strafford, Pa.; one shipment, consisting of “jack-rafters” and moldings, having been.made in October, 1893, and another, of doors and moldings, in February, 1894. When received by the consignee, a large number of the jack-rafters were broken or otherwise injured, and the doors were entirely spoiled by exposure to the rain.

The defense,- as set forth in the points submitted by the defendant on trial, was “ that Strafford was at the time a prepaid station at which there was no freight station, and that it was the custom of the company not to give notice to the consignee of the arrival of goods; ” that by the terms of the bills of lading, or shipping receipts, “ the shipment at the station was at the risk of the shipper from the time of delivery at the point of consignment,” that it was the duty of the consignee to be on the lookout for his property and ready to receive it on its arrival at the point of destination; ” and that the damage to the goods was due to the consignee’s neglect to be at the station on their arrival, to receive and protect them from injury.

Altogether, ten shipments appear to have been made by the plaintiff to the consignee. As to eight of these, in which the goods were uninjured, it does not appear whether notice of their arrival was given to the consignee, or whether the latter was at the station to receive them. As to the damaged goods, no notice appears to have been given; but the consignee’s superintendent, on the first occasion, and his foreman, on the last, arrived at the station and saw the goods, a short time after they were unloaded. The damage, however, had already been done.

The injury to the jack-rafters appears to have happened in the course of transportation, or in unloading. There is no evidence that it was due to the cpnsignee’s failure to be at the station to receive them, or that the injury happened after they were unloaded. The only testimony on this subject is that the consignee’s superintendent found them unloaded, many of them in a damaged condition, partly on the station platform and partly on the ground. The carrier gave no explanation of the injury, and offered no testimony as to their condition when unloaded. Hence, even if its liability was limited by tbe custom alleged, or by the terms of the shipping receipt, the presumption of its negligence follows of course: Express Co. v. Sands, 55 Pa. 140. ’ As to this shipment, the question of the carrier’s duty to give notice to the consignee does not' arise, since there is no evidence that the injury was due to the want of such notice.

The carrier’s liability on the shipment of February, 1894, remains to be considered. In relation to this, the question is ■whether, if the carrier was required by law to give notice to the consignee, it was relieved of this duty by reason of the custom alleged, and whether, under the stipulations of the shipping receipt, it discharged its whole duty by the delivery which it made.

First, as to the custom alleged. The rule in this state as to relief from the carrier’s liability at common law, by special custom or usage, is thus stated in McMasters v. R. R. Co., 69 Pa. 874: “ In all cases where this is relied on, the custom or usage must be clearly proved, and that the employer knew it, or is presumed to know it by reason of its generality in the neighborhood.” The only testimony as to the alleged custom, and a general knowledge of it, in the present case, was that of Howell, the carrier’s freight claim agent and of McFadden, its freight conductor. The testimony of Howell is as follows:

“ Q. Was or was not the custom, and had it been the custom of the Pennsylvania Railroad Company to give notice to the consignees of the arrival of freight at such stations as this? A. It was not the custom. It never is done. Q. Is- that a general custom? A. So far as my knowledge goes it is- a- universal custom with all the railroads in the country not to give notice of the arrival of freight at prepaid stations. Q. That is not only to this defendant, but to all other railroad companies, is it not ? A. I believe it to be a general rule.”

The testimony of McFadden is as follows:

“ Q. On other occasions has anybody been at the station representing Mr. Riley to receive the freight ? A. Yes, sir. There are parties there every morning receiving freight waiting for us to unload it. Q. You are positive in these other shipments shown in these waybills there were representatives there of Mr. Riley to whom you delivered the freight? A. Yes, sir. Q. Anybody with wagons? A. Nobody there at all on this morning. Q. On the other mornings was there somebody there to haul that away? A. Not these shipments of lumber there was not. But there is a grocery store there; the party is ther§ every morning to receive his freight when we come there. That is about the only party who would come to receive the freight would be waiting for us. Q. You say a party came to receive the freight; who was it ? A. Some grocer that receives freight there. Q. Who came from Mr. Riley that you know to get his freight? A. I never saw anybody there. Q. Do you mean on any other occasion or on this occasion alone ? A. None at all.”

Thus the testimony of Howell is altogether indefinite as to the extent of his knowledge on the subject, and he is silent as to general knowledge of the alleged custom at Strafford. McFadden says nothing of a custom, .and the only part of his testimony indicating any knowledge of the alleged custom at Strafford is his statement that a grocer at that point “ was about the only party who would come to receive the freight, would be waiting for us.”

This testimony falls far short of establishing the requisites of a custom by which a common law liability may be modified. There is by no means the clear proof of the custom or usage, and of the consignee’s knowledge of it, or the presumption of his knowledge “ by reason of its generality in the neighborhood where it is claimed to exist,” which were declared essential in McMasters v. R. R. Co., 69 Pa. 374. The utmost effect that can be given to it is as showing that the railroad company has a rule, for the government of its freight conductors and agents, prescribing the method of disposing of freight at “ prepaid stations,” wholly irrespective of acquiescence, or even knowledge of the rule, on the part of the consignees, or of the community generally at those stations. Under this rule, moreover, the conductor, as he testified, would not have unloaded the freight in the present case had it been raining when his train reached the station. Thus the rule recognizes a duty to protect the freight at such stations, without requiring the consignee to look after it on its arrival. So far therefore, as the defense rests on a custom, it lacks the requisite foundation of proof, and, indeed, is not adequately stated in the point submitted.

Next, as to the stipulation limiting the carrier’s liability.

The thirteenth clause of the conditions indorsed on the shipping receipt stipulates that “When merchandise is destined to or from the several ‘ way stations ’ and platforms, where station buildings have not been established hy the carrier, or where there are no regularly appointed freight agents, it shall be at the risk of the owner until loaded into the cars and when unloaded therefrom.”

In considering the effect that should be given to a custom or to a stipulation in a bill of lading or shipping receipt, in limitation of the carrier’s common law liability, we must take into account the situation of the parties. This is very forcibly presented by Mr. Justice Williams, in Willock v. R. R. Co., 166 Pa. 184, viz: “The carrier and the shipper do not stand on equal terms. The latter cannot afford to refuse that which the carrier demands as a condition to the transportation of his goods, and, in ninety-nine cases out of every hundred, if he does so refuse he will find himself discriminated against until his business is ruined and he has nothing left to ship. The rule that stipulations, insisted on by carriers or other persons who stand in such a position toward their customers as enables them to compel a compliance with their demands or destroy their customer’s business, should be judged of by their fairness, and held to be void whenever they are unreasonable or oppressive, is one of very large acceptance. Public policy compels its acceptance in all civilized countries.”

This principle applies alike to a custom and to a stipulation, for, when demanded, as a condition to transportation, acquiescence cannot he refused in the one more than in the other. Transportation is an absolute necessity of business, with respect to which, in a large measure, the shipper has practically no freedom of choice, while the carrier may dictate terms unless restrained by legal obligation, competition, or enlightened self-interest. We cannot leave out of view the power and too often the disposition of the carrier, unless so restricted, to establish and enforce, with arbitrary hand, an unreasonable and oppressive practice in avoidance of his common law liability, declare it a custom, and demand acquiescence in it as such; or to limit his liability by conditions in a shipping receipt, reducing his obligations to a minimum, and imposed on the shipper nolens volens. The contract, so called, implied from such conditions, is practically a dictation of terms by the carrier, to be declined by the shipper at his peril, and affording him only a choice of evils. Whether the shipper may refuse acquiescence, and demand transportation of Ms goods under the common law obligation of the carrier, we need not now decide, since, in the present case, the shipper accepted the receipt tendered, and gave it in evidence to prove delivery of the goods to the carrier. The question before us is to what extent the liability of the carrier is limited by the custom and the condition here set up as a defense.

Public policy forbids that any stipulation or condition shall release the carrier from liability for negligence: Willock v. R. R. Co., 166 Pa. 184. Even a provision fixing the value of the property, or limiting the amount to be recovered, will not relieve the carrier if the loss or injury be due to his negligence: Grogan v. Express Co., 114 Pa. 528; Weiller v. R. R. Co., 134 Pa. 310. The reasons for denying effect to such a stipulation or condition apply with equal force to a custom limiting in like manner the carrier’s obligations. One of the first requisites of a custom in derogation of the common law is that it be not unreasonable. The policy of the stipulation and the reasonableness of the custom under consideration are to be tested by the same standard. If a stipulation or a condition be against public policy, assuredly a custom to the same effect must be pronounced unreasonable. Neither contract nor custom, therefore, can relieve a carrier from liability for negligence.

When goods have been carried to the place of destination, liability as carrier ceases, and the less onerous liability of a warehouseman is substituted: McCarty v. R. R. Co., 30 Pa. 247; Shenk v. Propeller Co., 60 Pa. 109. This liability is only for negligence: Ibid. We have therefore to consider whether the injury to the doors shipped by the plaintiff in February, 1894, was due to the carrier’s negligeuce in the manner of keeping them after they had reached their destination. We need not here define the precise degree of care demanded in cases of this nature; it is sufficient for the present purpose to hold the carrier, as a warehouseman, to the lowest degree which the law will tolerate in a bailee. Its liability is at least that of a depositary, and this is liability for the want of ordinary care: Bank v. Smith, 62 Pa. 47. Such care depends largely on the nature and value of the property; a degree of care which seems to have been required for the preservation of the shipment in this case would be unnecessary in a shipment of pig iron.

Strafford was among the “ way stations ” mentioned in the condition indorsed on the shipping receipt, without station buildings or freight agent. The only convenience for receiving freight was a small platform. The carrier neither provided shelter for the goods nor took other steps to protect them from the weather. The plaintiff’s witnesses testified that it had been raining for some time when the doors were unloaded, while the defendant’s freight conductor testified that the rain did not begin until about an hour after the unloading; and this is the only contradiction in the testimony. It is not denied that the doors were ruined by the rain, and the plaintiff’s foreman testified that the ruin was complete upon his first knowledge that they were at the station.

Had the carrier taken any measure for the protection of the goods at their place of destination, the question of its sufficiency, under the circumstances, would have arisen. But it did nothing whatever; there was an absolute want of care in any degree. For a carrier to discharge freight without any attempt at making reasonable provision for its protection from dangers which, in the ordinary course of affairs, may naturally be apprehended, must be regarded as not only negligence but gross negligence. If a carrier may do this at one station, he may with equal right do it at all stations, and thus be relieved from his obligation as a warehouseman throughout his entire route, for it is impossible to fix the point between a crossroad station and a large city at which this obligation is to begin or end. He may even dispense with a platform on which to unload freight, and “just chuck it off,” as one of the defendant’s agents testified was sometimes done. The carrier’s duty at a station is not to be measured by the quantity of freight received; as to this, no line can be drawn fixing the point at Avhich the duty of ordinary care begins. This duty is not discharged at any station, by dropping freight at the side of the road, whether on an open platform or in mud or snow, to remain exposed to the elements, to injury from other sources, or to theft, until the OAvner learns , of its arrival and removes it. To give to such a practice tlie legal sanction of a custom, or to enforce a stipulation pei’mitting it, would be to place the public at the mercy of the carrier. In this case, the defendant’s freight conductor testified: “If it had been storming when I came to Strafford I would not have unloaded those doors.” But between unloading freight in a storm, and leaving it, after unloading, where a storm may ruin it before the owner can take care of it, the difference in negligence is only one of degree. Upon the principle laid down in Willock v. R. R. Co., supra, that “stipulations, insisted on by carriers or other persons who stand in such a position toward their customers as enables them to compel a compliance with their demands or destroy their customer’s business, should be judged of by their fairness, and held to be void whenever they are unreasonable or oppressive,” the stipulation in the shipping receipt must be pronounced void, so far as it is urged in justification of the practice pursued by the carrier at the point of destination. In this aspect, it is in the highest degree unfair, unreasonable, and oppressive. What effect might justly be given to such a stipulation, expressly made by a shipper not coerced by his business situation or necessities, but with actual freedom of choice, and for a consideration, we need not now consider.

In this view of the case, it is not material whether or not the carrier is by law required to give the consignee notice of the arrival of freight. Neither freedom from such obligation, nor its performance, can relieve the carrier from the duty of ordinary care at the place of destination. If notice is unnecessary, the need of care is all the greater. A failure on this point is negligence, from the consequences of which neither notice, custom nor stipulation can relieve the carrier. Therefore the language of the trial judge in relation to the duty of giving notice did the defendant no harm.

We do not regard this view of the questions involved as conflicting in any manner with the point actually decided in McMasters v. R. R. Co., 69 Pa. 374. In that case, no question of negligence on the part of the carrier was raised, suggested or considered, except such as might be implied from a failure to deliver the goods. The case turned solely on the question of actual delivery at the station; the defendant contending that the goods had been delivered there, while this was denied by the plaintiff.

The specifications of error are overruled, and the judgment is affirmed.

Dissenting opinion by

Beaver, J.,

January 18, 1897:

Established precedent founded in reason and upon authority which I regard as binding compels me to dissent from the conclusion reached by the majority of the court in this case. Recovery was had in the court below upon one or both of two distinct grounds: First. That the defendant, a common carrier by rail, unloaded from its cars upon its platform the merchandise of the plaintiff, carried by it, in such a negligent way as to destroy its value for the purposes for which it was intended, the negligence consisting as to one consignment in the breakage of a part of the merchandise and in another consignment in the unloading of doors and other material intended for the inside work of a house, in the midst of a rain storm, in consequence of which the material was rendered practically worthless. As to this point there was contradictory testimony, it being contended, on the one hand, so far as the last and principal consignment is concerned, that the storm had not begun, when the goods were unloaded, and on the other hand, that it was raging at the time the train arrived at the station and the goods were unloaded. The question involved in this part of the case was we think fairly submitted to the jury, and, in view of the contradictory character of the testimony, the answers of the trial judge to the defendant’s fourth and fifth points, as contained in the 7th and 8th assignments of error, I agree must be sustained and these assignments overruled. Whether, however, the verdict was based upon the finding of the jury as to this particular fact or as to another question which arose in the case, it is impossible to determine, and I am, therefore, compelled to consider at length a second question which legitimately grows out of the facts in the case and concerning which the trial judge in the court below made a distinct and positive ruling which has been assigned as error. It is a question concerning which there has been great contrariety of opinion and decision in the courts of last resort of the several states, and upon which our text writers upon the subject are almost equally divided. The question, as it is raised in this case, is capable of subdivision into three distinct propositions, and first, the general proposition: Is a common carrier by-rail bound to notify a consignee of the arrival of goods at the carrier’s station? Second: If there be such a duty on the part of the carrier, can it be modified or avoided by a stipulation in its bill of lading ? And Third: Can the carrier set up a general custom or a particular custom as to a special class of stations, at which there was no warehouse and no freight or station agents, which will relieve him of the duty of giving notice of the arrival of goods to the consignee ? These three questions practically coyer all the remaining alleged errors, as contained in the appellant’s first, second, third, fourth, fifth and sixth assignments. They will be considered in th e order above named:

First, as to the general proposition. As already intimated, theré is a very wide divergence of view on the part of our courts of last resort, both in England and in tins country, but with this divergence, so far as the consideration of the case under review is concerned, it is not necessary to occupy space in discussion, except to say that, so far as Pennsylvania is concerned, no case has arisen which required a distinct ruling on the subject. The different views as to the question, however, are presented in dicta of Mr. Justice Sharswood in Shenk v. Philadelphia Steam Propeller Co., 60 Pa. 109 (1869), and Mr. Justice Read in Tanner v. Oil Creek R. R., 53 Pa. 411 (1866).

Admitting, however, that the law is not clearly settled in Pennsylvania, can a shipper by express stipulation waive the right to notice and discharge the common carrier from liability as such, when the goods are delivered upon the platform of the carrier at a station where there is no warehouse and where he cannot in the nature of things undertake the duties of warehouseman ? If, for the convenience of a consignee, a common carrier by rail agrees to deliver at a road crossing upon a private turnout or a private platform any goods which may be forwarded at any time to the said consignee, in consideration of a release at and after the time of such delivery of all liability as a common carrier, it can hardly be doubted that such an agreement would be held to be binding. This would be equally true, if a dozen neighbors in the vicinity of the crossing united in asking that their goods should be so delivered. "Why is it not equally true, if the common carrier, for the benefit of a small community where the business does not justify the erection of a warehouse and the employment of a station agent, erects for the convenience of people in the neighborhood a platform, with the general understanding as to all who will have freight addressed to that station that the duties of the carrier cease as such, when the goods are delivered upon the platform? And, if this proposition be true, why may not a consignor, with the knowledge that a station is what is called a “prepaid” station, ship goods to that point, stipulating that the duties of the common carrier shall cease as such, when delivery is made upon the platform of such a station ? If this proposition be tenable, we cannot see why the 5th condition in the bill of lading of the Central Railroad Co. of New Jersey, of October 7, 1893, and the 13th condition of the bill of lading of the Easton & Amboy Railroad Company of February 22, 1894, shall not be binding upon the consignor. They constitute the contract between shipper and carrier. Such a contract does not contravene established law. It is not contrary to public policy. It is the subject of agreement. It does not release the carrier from negligence or from any liability as a common carrier. It is simply an agreement to terminate the relation existing between the consignor and the carrier upon the delivery of the goods carried, upon the platform of the carrier at the place of final destination. It is perhaps fair to say that there is no express waiver of notice to consignee either in the 5th paragraph of the bill of lading of the Central Railroad Company óf New Jersey, or in that of the Easton & Amboy Railroad Company of February 22,1894. In the latter, under which the main consignment for which recovery was had was shipped, there occurs this clause : “ Except that, when merchandise is destined to or from the several way stations and platforms where station buildings have not been established by the carrier, or Avhere there are no regularly appointed freight agents, it shall be at the risk of the owner, until loaded into the cars and when unloaded therefrom.” The court below having correctly charged the jury that the defendant was entitled to the benefit of the contract made by the consignor with the connecting railroads, upon which the goods had been shipped, this stipulation must, of course, be held as inuring to the benefit of the defendant. I am of opinion, therefore, that the court below should have affirmed the defendant’s first point in toto, so far at least as the consignment last above referred to was concerned.

As to the third proposition, assuming that there is no general rule of law which forbids, why was it not competent for the defendant in the court below to show a general custom known and understood in the community and known by the consignee of the goods carried, that the consignees of goods delivered at Strafford station were expected to remove the same upon their arrival without notice? And, if shown, why should the jury not have been instructed that, if they found that as a fact, the plaintiff could not recover on the ground of lack of notice ? As I understand McMasters v. Penna. R. R., 69 Pa. 374, this question was therein expressly decided. Chief Justice Thompson, after describing the station at Turtle Creek and the particular circumstances attending the shipanent and delivery of the barrel of sugar which was involved in the case, says : “ The .defendants had no warehouse at that place and gave no notice to the consignee that the sugar had been delivered at that place, but insisted that it was the custom for consignees to be present themselves, or by somebody for them, to receive goods shipped for them by rail to that place. This custom was testified to by the plaintiff himself and also by the conductor of the local freight train and the proof was not at all controverted. Was this uneontroverted custom sufficient excuse for the want of warehousing and of notice to the consignee by defendants? The learned judge thought it was, and so instructed the jury, and there was a verdict for the defendants. In other words he held a delivery on the platform a good delivery, under the custom. That a custom or usage will control the general law of liability of carriers is shown by many cases. I will quote briefly from a few of the decisions to that effect, as also from some of our most reliable text writers.” Then follow quotations from Redfield on Railways, Angelí on Carriers and numerous cases decided in the courts of other states, closing with this language by'Chief Justice Thompson : “This is a clear recognition of the power of custom to regulate the liability of common carriers, and I need not further multiply cases to prove a matter so consonant to reason as this. The cases cited by the plaintiff in error are good law but relate to adjudications on the law of carriers without any reference to the question here,

namely, how far it is within the usage and course of business to modify the duties and liabilities of common carriers ? But in all cases where this is relied upon by the carrier the custom or usage must be clearly proved, and that the employer knew it or is presumed to know it by reason of its generality in the neighborhood where it is claimed to exist.” In view of the general character of this decision and the reasoning upon which it is founded, I am led to the irresistible conclusion that the trial judge in the court below was in error, both in the general charge and in the answer to defendant’s second and third points, when he laid down the general proposition that a common carrier is bound under all circumstances, to give notice to the consignee of the arrival of goods, and particularly in the answer to the defendant’s third point, which point and the answer thereto are as follows : “‘It appears from the evidence that Strafford was at the time a prepaid station at which there was no freight station, and that it was the custom of the company not to give notice to the consignee of the arrival of goods.’ If that was-the custom, it was a very had custom indeed and one which was contrary to law and the sooner it is abolished the better, because it is the plain duty of every carrier, when goods reach their final destination, to give notice to the consignee of their arrival. Whether they were in the habit of doing so at once made no difference as regards the rights of the party whose property has been injured by their negligence.” Mr. Angelí, in ins treatise on the law of carriers, lays down the general proposition, in section 315, as cited by the appellee, that “ The carrier is, of course, bound to continue his care of the goods, until a knowledge of the notice is brought home to the owner or consignee; ” but in the next section (316), he says, “ But the carrier may be permitted to prove that the uniform usage and course of business in which he is engaged is to leave the goods at his usual stopping place in the town to which they are directed, without notice; and if such usage has been of so long continuance as to justify a jury to find that it was known to the employer, the carrier will be' discharged.”

As to the general proposition herein referred to, I do not think it necessary in this case to decide whether or not a common carrier by rail is bound under the law, ás it is held in Pennsylvania, to notify a consignee of the arrival of goods at the carrier’s station, but I would hold that, even if there be such a duty generally, it can be modified or avoided by an express stipulation in the bill of lading, the acceptance of which will be a practical waiver by the consignor, and that the carrier can set up a general custom.or a particular custom as to a special class of stations at which there was no warehouse and no freight or station agent which will, if the evidence justify such a finding by a jury, relieve him of the duty of giving notice of the arrival of goods to the consignee, and I would base this decision expressly upon the case of McMasters v. The Pennsylvania Railroad, supra, from which I am unable to distinguish the present case, so far as the effect of an established custom in relieving the carrier from the necessity of notice of the arrival of goods to the consignee is concerned.

In this dissent Rice, P. J., and Willard, J., unite.


source: Caselaw Access Project

author: Smith, J.,

license: Public Domain

text:
    G. Leiper Green v. William H. Patterson, Appellant.

      Actions ex contractu — Stipulation against a tort.

    A contract may stipulate against the commission of a tort and upon its breach an action ex contractu lies.

      Costs — Claims under $100 — Form of action — Substance of claim.

    The right of exemption from costs under the statute cannot be defeated by plaintiff’s erroneous proceedings, whether intentional or by mistake. The important question is not the form of action, but the nature of the plaintiff’s demand.

      Jurisdiction — Practice, C. P.— Costs — Verdict under $100.
    Plaintiff cannot recover costs where the verdict was less than $100, he having failed to file the affidavit required by the act of 1810.
    Where although the writ was in trespass, the statement was in assumpsit and the plea not guilty, it appearing that the nature of action was clearly in assumpsit, the irregularity of the writ and pleadings was cured by the verdict, and the verdict being below $100 the plaintiff’s right to recover costs falls, he having failed to file the requisite affidavit.
    Argued Nov. 18, 1896.
    Appeal, No. 74, March T., 1896, by defendant, from order of C. P., Delaware Co., June T., 1895, No. 78, refusing to make absolute the rule taken by defendant to show cause why judgment should not be entered on the verdict without costs.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Trespass for injuries done to land.
    The form of the writ was trespass. The nature of the statement was, in substance, assumpsit alleging breach of conditions and covenants under a lease. The plea was not guilty. No affidavit was filed under the act of March 20, 1810, that plaintiff did truly believe the debt due or damages sustained, exceeded the sum of $100. The verdict was for the plaintiff in the sum of $45. The defendant took a rule to show cause why judgment should not be entered upon the verdict without costs, which rule was discharged by the court. Defendant appealed.

      Errors assigned were, (1, 2) in not making absolute the rule for judgment upon verdict without costs.

      George T. Butler, with him V. Gilpin Robinson, for appellants.
    The action practically being assumpsit, the affidavit required by the act of March 20,1810,5 Sm. L. 172, was a condition precedent to the recovery of costs by plaintiff, the verdict being for less than $100. The form of writ and the name of the action is immaterial. It could have been amended if necessary: Com. v. Press Co., 156 Pa. 516.
    There have been several cases decided which have sustained the appellant, entering a verdict without costs: McCahan v. Hirst, 7 Watts, 175; Todd v. Figley, 7 Watts, 542; Shannon v. Madden, 1 Phila. 254; Sharpless v. Hibberd, 2 Lan. L. R. 68; McCafferty v. Crew, 153 Pa. 311.

      Horace P. Green, with him George E. Darlington, for appellee.
    This was an action of trespass for damages for injuries deducible from the failure of the defendant to carry out the terms and stipulations of the lease of a farm, and also for damages to real estate mentioned in the lease. The award of the arbitrators was $323.66. This fact is called to the attention of the court merely for the purpose of showing that the plaintiff had good reason for believing that his damages exceeded $100: See Clark v. McKisson, 6 S. & R. 86; Moyer v. Illig, 52 Pa. 444; Rickards v. Gage, 1 Ashmead, 192; Hancock v. Barton, 1 S. & R. 269; Stewart v. Hughes, 1 Del. Co. Rep. 143.
    It has been decided that the act of 1814 .giving jurisdiction to the justices of the peace simply gives them concurrent jurisdiction with the court of common pleas, and that even if the amount of damages had been less than $100, the verdict would entitle the plaintiff to full costs : Rickabaugh v. Beck, 2 Kulp, 139.
    Even in actions of assumpsit when the sum claimed is for unliquidated damages, the plaintiff is entitled to full costs, although the verdict be for a sum less than $100, and no affidavit having been filed: See Lukens v. Ferguson, 21 W. N. C. 271; O’Neill v. McVickar, 21 W. N. C. 496.
    January 18, 1897:
   Opinion by

Smith, J.,

The act of March 20, 1810, 5 Sm. L. 172, provides (1) That justices of the peace “ shall have jurisdiction of all causes of action arising from contract, either express or implied, (with exceptions not material here) in all cases where the sum demanded is not above one hundred dollars; ” (2) That if an action be brought “ for any debt or debts, demand or demands, made cognizable as aforesaid,” and a verdict or judgment be obtained not exceeding, exclusive of costs, one hundred dollars, without an affidavit filed before issue of the writ, that the affiant “ did truly believe the debt due or damages sustained exceeded the sum of one hundred dollars,” no costs shall be recovered.

Whether the plaintiff’s demand was within the jurisdiction given to justices by this statute, and therefore subject to the provision requiring an affidavit, is to be tested by the cause of action set forth in the statement, without regard to the form of action selected by the plaintiff: Seitzinger v. Steinberger, 12 Pa. 379. The statement avers the execution of a lease by the parties, and that the defendant “has not fulfilled the stipulations of said agreement or lease on his part to be performed, in this, to-wit,” with specifications of default, “and further, that the defendant has done or caused to be done those things which it was understood and agreed should not be done, by the terms and stipulations of said agreement or lease and according to the true intent and meaning thereof, in that he,” did certain acts “ contrary to and in violation of the terms and stipulations and the true intent and meaning of the said agreement or lease, and has otherwise violated the terms, stipulations and conditions of said agreement or lease.”

This is, unquestionably, a declaration in assumpsit. Every wrong complained of is laid as a violation of some provision of an express contract. It is equally beyond question that a justice has jurisdiction, under the act of 1810, of an action for such violations, if the demand be not above one hundred dollars. The action not having been brought in the manner directed by the statute, the affidavit required by the act not having been filed, and the verdict, without costs, not amounting to more than one hundred dollars, it follows that- no costs can be recovered. It avails nothing that the plaintiff, as contended in the appellee’s argument, “ had good reason to believe that his damages exceeded the sum of one hundred dollars.” If he “ did truly believe” this, lie should have filed the oath or affirmation which is made a condition to the recovery of costs, on suit in the common pleas, upon a verdict not exceeding one hundred dollars. His reasons may have furnished ground for an affidavit of such belief; but they form no ground for judgment with costs in the absence of such affidavit.

The theory that the decision in Zell v. Arnold, 2 P. & W. 292, rules this case in favor of the plaintiff is untenable. That case was not founded on a contract, though growing out of an implied undertaking. The demand there was based on a collateral duty, the breach of which amounted to a personal tort apart from the contract, and therefore not within the provisions of the act of 1810. It was substantially a misfeasance, a trespass or wrong, bearing no necessary or actual relation to a contract, express or implied, in the sense in which those terms are used in the statute. Contracts within the act of 1810 are such as arise from an agreement or understanding immediately between the parties: Schaffer v. McNamee, 18 S. & R. 44; Zeigler v. Gram, 13 S. & R. 102.

But demands based on nonfeasance, — the nonperformance of a duty through neglect,- — -are within a justice’s jurisdiction; and it is upon this distinction, between nonfeasance and misfeasance, that Zell v. Arnold is said to have been reconciled with the • later cases, on the point in question: McCahan v. Hirst, 7 Watts, 175; Livingston v. Cox, 6 Pa. 360; Seitzinger v. Steinberger, 12 Pa. 379; Conn v. Stumm, 31 Pa. 14.

While some of the acts declared on might be regarded as torts, it is not to be doubted that they may also be stipulated against by express contract. For centuries, in England, express covenants against the commission of trespasses have been enforced, even where the trespass, such as poaching, was also a crime under the law. On a demise, covenants against waste and restrictions upon the use of the premises, similar to those in this case, are in common use, and are entirely proper. It is not material that some of the violations complained of may be of a tortious character. A contract may stipulate against the commission of tortious acts, and upon its breach an action ex contractu lies : McCafferty v. Crew, 153 Pa. 311. In the lease of a farm there is an implied covenant for its use in accordance with good husbandry, and a justice has jurisdiction of an action for a breach of this: Lewis v. Jones, 17 Pa. 262.

It is further contended, on the part of the appellee, that the action is in trespass, in which no affidavit is required to entitle the plaintiff to costs; that the wrongs complained of arose in part from torts, in cutting and damaging valuable timber, breaking up more than one sod-field, neglecting to use the premises in accordance with good husbandry, etc. The important question is not the form of action, but the nature of the plaintiff’s demand. The right of exemption from costs under the statute cannot be .defeated by the plaintiff’s erroneous proceedings, whether intentional or by mistake. Furthermore, this contention, if successful, would defeat -the plaintiff. There can be no joinder of a cause of action arising ex delicto with a cause of action arising ex contractu. Such a joinder is fatal on demurrer, in arrest of judgment, or on error: Gould on Pleading, IV. 97 ; Seip v. Drach, 14 Pa. 352. The distinction between assumpsit and trespass, so far from being obliterated by the procedure act of 1887, is expressly preserved. The declaration, however, shows no such joinder; it sets forth only a contract, and its violation in certain particulars.

The proceedings in the case were marked by some irregularities. The writ is in trespass, the declaration is in assumpsit, and the plea is “ not guilty ” Regularly, the declaration was an abandonment of the cause of action stated in the summons, which would abate the writ: Gould on Pleading, IV. 51. The plea, though adapted to the form of action, tendered only an informal issue; the defendant appears to the writ, but pleads to or answers the declaration. All irregularities, however, were waived by the parties, the cause was tried on the .averments in the declaration, and the informal issue is aided by the verdict; Ibid, X. 14.

The order discharging the rule for judgment without costs is reversed, and it is now ordered that judgment be entered for the plaintiff on the verdict, without costs.


text:
    Elizabeth L. Gift v. City of Reading, Appellant.

      Municipal law — Negligence—Construction of sewers — Ministerial duties.

    It must be conceded that the power of a municipal corporation to construct sewers is discretionary and in its nature judicial, and that no civil liabilities are incurred for failure to perform ; nor for errors of judgment in its exercise, such as selecting plans, locations, etc., although the sewers constructed pursuant thereto prove inadequate. But the work of construction in accordance with adopted plans is purely ministerial; it must, therefore, like all ministerial duties, be performed in a skillful and careful manner. A municipality is liable for injuries caused by negligent performance.

      Municipal law — Liability in regxilating flow of surface water.

    In regulating the flow of surface water on the streets, municipalities have no right to cast it upon adjacent property, and that water thus diverted must first pass over the intervening lands of others, will not affect the question of liability.

      Municipal law — Injuries from construction of seivers — Measure of damages.

    Where property is injured by negligent construction of a sewer, by reason of the diversion of water caused thereby, the measure of compensation would be the cost of repairing the damages and thus restoring the property to its former condition, unless such cost would equal or exceed the value of the building, in which case the value of the building would be the measure of the plaintiff’s damages.
    Argued Nov. 13, 1896.
    Appeal, No. 135, Nov. T., 1896, by defendant, from judgment of C. P., Berks Co., Nov. T., 1894, No. 44, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Trespass for injuries arising from negligent construction of a sewer. Before Ermenteout, P. J.
    The facts sufficiently appear in the opinion of the Superior Court.
    Verdict for plaintiff for $775. Defendant appealed.

      JSrrors assigned, inter alia, were:
    (4) In charging the jury as follows:
    “ There does not seem to be any dispute that there was a natural water course draining that section. It is also admitted that the city built a sewer across that water course. The plaintiff alleges that this sewer was built directly across the water course and interfered, obstructed, and diverted the water from its accustomed channel, and causing it to spread over the property of the plaintiff, injuring both the real estate and the contents of the house. Now, if the city did build a sewer over the natural water course in such a way as to actually interfere, obstruct, and divert the water, so that instead of going down and off in its accustomed channel, it was clogged up and then drained upon this property, causing a damage, then the city did a wrong to the property owner for which the city should be held liable.
    “ The city, however, says that it did not build the sewer in that way. It says it planted this sewer underneath the bed of the water course in such a way that the water course was not diverted. If you believe that the building of the sewer did not obstruct the water course, then there can be no recovery.”
    (5) In charging the jury a.s follows:
    “If you should find however, under the facts of the case, that this sewer was actually so built as to divert the course of the water, and cause it to accumulate, and then to be drained upon this property, then, as I said before, the injury would be done, and there can be a recovery, unless there was some act on the part of the plaintiff which contributed to bring about this result. If that act was by damming up the drain on her property, then there would be a contribution. She denies it, and I know of no witness in this case who actually says she did anything to this ditch. The facts are, however, for the jury.”

      (6) In rejecting the following evidence :
    S. S. Hoff sworn:
    “ Q. So that if property owners had not filled np the ditch
    at the Cullen corner, the water would still have gone over the surface of Spring street into this ditch and down over to Windsor street, would it not?”
    Mr. Schroeder: Objected to as not proper cross-examination.
    By the Court: Objection sustained. Exception for defendant.
    (7) The court erred in rejecting the following testimony:
    S. S. Hoff sworn:
    By Mr. Stevens: “ Q. So that the water coming down Spring street would, notwithstanding the fact that you have raised Spring street to this grade, have entirely been discharged through this water course?”
    Mr. Schroeder: Objected to as not proper cross-examination.
    By the Court: Objection sustained. Exception for defendant.
    (10) In admitting testimony as follows: Alfred W. Gift, being on the stand, plaintiff made the following offer:
    Mr. Schroeder: Plaintiff proposes to show that they have a small baby, and that this child was one year old at the time of this overflow, and that the mother was obliged to get out of the house during some of these floods, and that they were interfered with in the comfortable enjoyment and occupancy of their building by reason of these floods.
    Mr. Stevens: Objected to, because the narr does not allege any injury of that kind.
    By the Court: We will allow the question. Exception for defendant.
    (11,12,13,14,17,18,19) In admitting plaintiff’s testimony, under objection, to prove the market value of the premises before the flooding and after the flooding; (16) admission of evidence of Dr. Brackbill as to the sanitary condition of the premises; (20) rejection of evidence offered for the purpose of showing the condition of the house after the flooding and the actual injury done, and putting an estimate in dollars and cents on the injury done to the house; (21) in rejecting evidence as to the condition of the furniture.

      William Kerper Stevens, city solicitor, for appellant.
    The facts in this case bring it under the decision of Fair v. Phila., 88 Pa. 309. The case presented by the plaintiff is that of Collins v. Phila., 93 Pa. 272.
    The true rule as to the measure of damages is stated in Lentz v. Carnegie, 145 Pa. 612.
    The same question was considered in the Supreme Court in Eshleman v. Martic Township, 152 Pa. 68.

      George F. Hagenman and D. E. Schroeder, for appellee.
    Appellee’s damages at the trial below was for injury and destruction to her real estate and personal property. The evidence related to both, and the jury returned their verdict in one gross sum. How can the sum be ascertained and divided, a portion for the realty and a portion for the personalty ? Phila. v. Linnard, 97 Pa. 242.
    The true measure of damages is the difference between the market value of the land as affected by-the taking of it for public use and such value as unaffected thereby: Boham v. Avoca Borough, 154 Pa. 404.
    The evidence tended to prove the facts on which the plaintiff’s case was predicated, and by its affirmance plaintiff’s case was fairly presented to the jury: Frederick v. Lansdale Borough, 156 Pa. 613.
    January 18, 1897:
   Opinion by

Smith, J.,

The plaintiff, in her declaration, avers that she is the owner of a two story brick dwelling house situate on the north side of Windsor street in the city of Reading; that prior to the year 1889 a natural water course drained all surface waters without overflowing her land; and that in 1889 the city authorities built a sewer, which was inadequate to drain the watershed, and at the same time filled up the natural water course, whereby the water overflowed her premises several times, damaged the dwelling and its contents, and diminished the market value of the property. This suit was brought to recover for the injuries thus suffered.

On the trial, the plaintiff’s right to recover was restricted, practically, to injuries caused by the obstruction of the natural water course and the consequent diversion of the water to and upon her premises, and. the jury were told that no recovery could be had for any injury caused by the insufficient size or capacity of the new sewer. The obstructions complained of were twofold: (1) the new sewer, which it is alleged was so placed as to obstruct the passage of the water where it had been accustomed to flow, and (2) the filling up of the natural water course at a point on Spring street north of the plaintiff’s land, which, it is alleged, caused the water to overflow her lot. It was also contended, on the argument, that the evidence showed that a plan known as Bassett’s System had been adopted by councils for the sewerage of the whole city, and that if it had been carried out in a methodical manner, with due regard to the changes and the passage of the water as contemplated by the new plan, other parts of the system would have been first built, and the greater part of the water diverted to the plaintiff’s lot would have been carried off in other directions, as intended, through the enlarged system; and that the defendant was therefore negligent in not constructing, the sewer so as to avoid overtaxing the part built near the plaintiff’s land. But this view was not declared upon nor submitted to the jury for their consideration, and there is nothing in the record to warrant the assumption that it entered into the basis of their finding. It was admitted that neither the whole system nor the part which it was alleged would relieve the Nicolls street sewer had been built at the time of the injuries complained of, nor at the time of the trial in the court below. On the question of damages, the learned trial judge told the jury that compensation such as would make the plaintiff whole was the correct rule, and that in estimating the damages to the building they were to consider and allow for the difference in its market value before the injury, and after, as affected by the injury; and referred them to the opinions of the witnesses, on this point.

The evidence, with the map of the district, shows that the sewer complained of crosses the water way at Spring street at nearly right angles, and three feet below its bed, but does not follow the bed of the water course or occupy any part of it between Spring and Olqy streets. So that, under the facts it is not the case of the conversion of an old water course into an artificial sewer, as in Collins v. Philadelphia, 98 Pa. 272; nor was the iniury necessarily caused by the inadequacy of the sewer, as in Fair v. Philadelphia, 88 Pa. 809. It may be that the city authorities intended the new sewer as a substitute for the water way, and that the water should be diverted to it from the latter; but that does not bring the case within the facts in Fair v. Philadelphia. In that case, an existing sewer was overtaxed through an extension of the system, thereby causing a larger volume of water to flow through it. None of the water which accumulated on the premises of the plaintiff in that case was thrown there by reason of the construction of the new sewer, or the diversion of the water from its old course; the damage was done by water which had been accustomed to flow there, and could not get into the sewer because it was already filled. In the present case it is contended, on behalf of the plaintiff, that without regard to the capacity of the new sewer running south on Nicolls street, if the water way running west on Spring street had not been filled up at its intersection with Nicolls street, no damage would have been done to the plaintiff’s property.

The liability of the city is denied because (1) it had a right to adopt and construct a system of drainage for the city, and the inadequacy of the sewer on Nicolls street to take all the water from Spring street was an error of judgment; and (2) the old water way was filled up by abutting lot owners and not by the city; and also that the flooding of plaintiff’s property on August 23, 1891, was due to an extraordinary fall of rain.

It must be conceded that the power of a municipal corporation to construct sewers is discretionary and in its nature judicial, and that no civil liability is incurred for failure to perform it; nor for errors of judgment in its exercise, such as selecting plans, locations, etc., although the sewers constructed pursuant thereto prove inadequate. But the work of construction in accordance with adopted plans is purely ministerial; it must, therefore, like all ministerial duties, be performed in a skillful and careful manner; and the municipality is liable for injuries caused by its negligent performance: 24 Am. & Eng. Ency. of Law, 946, where numerous authorities are cited.

While a city has absolute power over its streets, its control of them must be exercised with a due regard for the rights of abutting property owners. If, as alleged by the plaintiff here, water which formerly flowed north of her property along Spring street, in a natural channel sufficient to carry it off, was diverted by the city authorities, and thereby overflowed her lot, the city would be liable for damages resulting from such diversion, and her right to recover would not be affected by the circumstance that the Nicolls street sewer, inadequate when constructed, might prove adequate upon the completion, at a future day, of a general sewerage system. In regulating the flow of surface water on the streets, municipalities have no right to cast it upon adjacent property: Borough of West Bellevue v. Huddleston, 28 W. N. 240; Elliott v. Oil City, 129 Pa. 570; Torrey v. Scranton, 133 Pa. 173. And that water thus diverted must first pass over the intervening land of others will not affect the question of liability: Wier v. Plymouth Borough, 148 Pa. 566.

Of course the ground of the defendant’s liability is negligence ; want of care in the discharge of its ministerial duties, through which the property of others is injured. If in this case there was no negligence on the part of the city authorities, in obstructing or diverting from its natural channel the water that caused the injury; or if there was no such channel; or if the water which flooded the plaintiff’s house was the ordinary surface water, not cast there by any wrongful act of the city; or if it was from an extraordinary flood; or if it was driven there because of the inadequacy of the sewer constructed by the city; or by reason of the natural passage way being filled up or blocked by any person other than the city authorities; or if the plaintiff by any act of hers contributed to the cause of the injuries ; there would be no liability on the part of the defendant.

The witness S. S. Hoff having testified in chief that by filling up on Spring street, at its intersection with Nicolls, the ditch was cut off and any excess of water not entering the sewer, would flow down Nicolls street, it was error to exclude, on cross-examination, the question made the subject of the seventh assignment. The defendant had a right to show by the witness, if it could, that notwithstanding that filling, the water coming down Spring street would be discharged through the water course. This assignment is sustained.

The question upon which the sixth assignment is based assumed as facts matters not touched upon by the witness in his examination in chief; it was rightly excluded as not proper on cross-examination.

The assignments of error from the ninth to the fifteenth inclusive, and from the seventeenth to the nineteenth inclusive, relate to the question of damages, and may be considered together. Several witnesses were permitted to state what in their opinion was the market value of the property before and after the several inundations from 1891 until suit brought; and the difference was held the proper measure of damages to the real estate. In this we think there was error. None of the plaintiff’s real estate was taken for any public use by the defendant. The property was not wholly destroyed, or irreparably injured. It appears that the plaintiff and her family continued to reside in the house, notwithstanding the floods, and, with the exception of the cellar, used it as before the diversion of the water. If, therefore, the defendant is liable at all, it is for such injuries only as were done to the property; and the measure of compensation would be the cost of repairing the damages and thus restoring the property to its former condition, unless such cost would equal or exceed the value of the building, in which case the value of the building would be the measure of the plaintiff’s damages: Lentz v. Carnegie, 145 Pa. 612; Eschleman v. Township, 152 Pa. 68. These assignments are sustained.

A physician called on behalf of the plaintiff testified that the house was in a bad sanitary condition, detrimental to health, and that it would breed disease. But he did not say that during the four years referred to anjr disease or sickness was caused by its alleged unsanitary condition. On the other hand it appears from the plaintiff’s own testimony that she and her family continued to reside in the house, and were obliged to vacate the premises only for a short time in 1891, and then by reason of the overflow. When asked by the defendant’s counsel as to the sanitary condition of the house and its effect on the health of herself and family, her attorney’s objection to the question was sustained. It is quite reasonable to presume that her counsel would not have objected to this question if she had been able to show that any member of her household had been made ill or was at all affected by the unhealthful condition of the house. We thus have the fact refuting the theory. It was error to admit this testimony of the physician, but having been admitted, it was unfair to the defendant to exclude the question'to the plaintiff on the same subject. It was not alleged in tbe declaration that the house was made unsanitary or unhealthful as a place of abode, or that the plaintiff or any member of her family was made ill by reason of the flood or of the deposits in the dwelling, nor that any loss or injury was sustained by the plaintiff or her family because of its unhealthful condition. The matter was not material and formed no part of the issue raised by the pleadings. It was, therefore, erroneous to admit testimony concerning it. The sixteenth assignment is sustained.

The offers of testimony set out in the twentieth and twenty-first assignments were pertinent to the issue and material, and the testimony should have been admitted.

The plaintiff claimed damages for alleged permanent injuries to both the real and personal property, and gave evidence in support of her claim. If the injuries were of a permanent nature their presence and character would to some extent at least be visible at the time of the trial, and their lasting effect could be estimated at that time with some degree of certainty. The testimony of the witness Beard was admissible to meet the allegations of the plaintiff as to permanent injury to the property, to describe its general condition at that time, and to show how it was affected by the floods, as distinguished from wear by use during the preceding four years. Its effect was for the jury.

For the reasons given the judgment is reversed and a venire facias de novo is awarded.


author: Beaver, J.,

text:
    Ignac Baranowski v. The Baltimore Mutual Aid Society of Baltimore, Md., Appellant.

      Beneficial association — Contract—Interpretation—Province of court.

      A certificate issued by a mutual aid society entitling a member to benefits is a contract between them, and the rights of both parties are to be determined thereunder. The interpretation of the provisions of this certificate is for the court.

      Contract — Construction of benefit certificate — Waiver.
    Where a benefit certificate provides for return of premiums and cancelation of certificate in event of sickness within twenty weeks from its date, an acceptance of weekly instalments after proof of sickness works a waiver of such right of cancelation and justifies recovery of sick benefits after the expiration of twenty weeks. Sucli conditions do not work a waiver on the part of the beneficiary.
    Argued Dec. 9, 1896.
    Appeal, No. 119, Nov. T., 1896, by defendant, from judgment of C. P. Lehigh Co., April T., 1895, No. 87, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Appeal from judgment of alderman. Before Albright, P. J.
    The form of the action was assumpsit to recover on a certificate for sick benefits.
    On August 13, 1894, defendant company issued a policy, or as called by the company, a certificate of insurance for the consideration of 25 cents weekly dues, in the sum of $62.50 for death benefits and $6.25 per week for sick benefits. This certificate, together with a receipt hook for the crediting of the weekly dues.paid by the plaintiff and a “sick card ” (a blank form to be filled out by insured in case he became entitled to benefits by reason of sickness, and forwarded to the company as notice of his claim) were duly delivered hy defendant to plaintiff.
    The certificate provides, filter alia: “ Provided, however, that in case sickness or accident or death should occur to the member named in the certificate within the first twenty weeks from the date of the certificate, the society shall return the premiums that have been paid and cancel this certificate.” And again, in the eleventh clause, “ and before any payment can be claimed under this certificate, said certificate and receipt book must be surrendered to the society.”
    Plaintiff was taken sick on or about November 21,1894, fourteen weeks and two days after issuing of the certificate, or five weeks and five days before expiration of the twenty weeks of probation required as a condition precedent. The twenty weeks expired on December 31, 1894, up to which time plaintiff’s premiums had been paid, and without any further payments under the terms of the certificate the insurance would not lapse until four full weeks after that date, if, in other respects the terms of the contract were fulfilled. He also paid on January 18, 1895, two more weekly premiums for weeks ending January 7, and 14, 1895, which extended the beneficial period two weeks longer, if he had been entitled to any benefits at all, when these two payments were made. After the last payment no more premiums were paid by plaintiff, and under the terms of the contract the insurance lapsed four weeks after January 14, 1895, and the certificate became null and void.
    About November 26,1894, plaintiff sent his sick card to the company. There was evidence that the agent called upon plaintiff and informed him that he was not entitled to sick benefits because he became sick before the expiration of twenty weeks from the date of his policy; that all he could ask and receive under the circumstances was the return of the weekly premiums he had paid to the company, upon the surrender of Iris book and policy. To which the reply was made: “We do not want that, we want sick benefits; ” on which the company’s agent told him that plaintiff could not get.
    On January 18, 1895, two more weeks’ dues were paid and accepted. On January 19, 1895, suit was brought before the alderman. On February 18, 1895, the policy was lapsed for arrears.
    Verdict for plaintiff for $13.00. . Defendant appealed.

      Errors assigned were, (1) in instructing the jury as follows : “ Under the view we take of the contract between the parties, aird the law applicable to it, the plaintiff is entitled to recover if you find that he was sick and disabled during two weeks after January 1, 1895.”
    (2) In charging the jury as follows: “ If the member falls sick within twenty weeks after he became insured, the company may terminate the policy; they may cancel it; and the policy says that the society shall return the premiums paid and cancel this certificate. Although it says they shall do it they are not bound to do it. They may leave it remain in force and may continue to treat the member as a member; they could take his dues after that; they could decline to avail themselves of this privilege of canceling the policy. My view of the law governing this case is, that if this company, before Baranowski had sued them for the benefits, had tendered back to him the premiums which he had paid — if they had paid them to him and he had taken them, that that would have been a cancelation of the policy whether he had surrendered it or not, or if they had offered him the money, made what in law amounts to a tender — taking money which is a legal tender and showing it and offering to give it to the plaintiff — if they had done that, even if Baranowski had not taken the money, we would say that it would have amounted to the same thing as if it had been paid into his- hands, and then the policy would have been canceled and at an end. Tbe eleventh clause, as I said before, relates only to the claim for premium that has been paid: Its provision that the policy must have been surrendered applies only to the insured, to the member; it says ‘ before any payment can be claimed under this certificate there must be a surrender.’ But Baranowski is not claiming premiums here; he is claiming sick benefits.”
    (3) In charging the jury as follows: “ Although he could not claim for his sickness and disability until the twenty weeks were up, yet when the twenty weeks from the date of the policy were up, and if he was then sick, even though it was a continuance of a former sickness, he is entitled to recover; and if you find that he was sick and disabled so as to fulfill the condition of the policy as to sickness, for two weeks after January 1, 1895, then you may find for plaintiff.”
    (4) In negativing defendant’s point, — “that under all the evidence the verdict must be for the defendant.”

      Morris Hoats, for appellant.
    Where a rule provides that if a member fails to pay within thirty days after publication of notice of assessment, his policy is forfeited; such rule has been held valid, for “ stringent as are the rules in ordinary life policies, they should be more rigidly applied in mutual associations:” Madiera v. Merchants’ So’cy, 16 Fed. Rep. 749.
    A somewhat analogous question has however been decided more than once, and invariably in favor of the defendant: Nagle v. Glassburger, 10 N. Y. 503; Amer. Dig. 1890, p. 2063, sec. 628; Montgomery v. Ins. Co., 14 Bush. 51; Sims v. Aid Society, 15 C. C. Rep. 642.
    In May v. N. Y. Safety Reserve Fund Association, 14 Daly, 389, the court held that “ A recital in the certificate of membership issued by a mutual benefit association that agents have no authority to make, alter or discharge this contract, or to waive forfeitures, binds the party accepting the certificate, though he was induced to apply for membership by representations inconsistent therewith made by the soliciting agent of the association: ” Amer. Dig. 1890, p. 2054, sec. 562.
    A by-law that a member who is not beneficial when taken sick, is not waived by acceptance of arrearages from such member: Nagel v. Glassburger, 10 N. Y. 508, herein quoted. Substantially to the same effect is the decision in State v. Temperance Association, 42 Mo. App. 485.

      Milton C. Henninger, for appellee.
    January 18, 1897 :
   Opinion by

Beaver, J.,

The certificate issued by the defendant to the plaintiff is the contract between them. The rights of both parties are to be determined thereunder. The interpretation of the provisions of this certificate was for the court. The only questions involved in the case are those concerning its interpretation. The first is under the proviso as to the payment of sick benefits and the second under the eleventh condition as to the surrender of certificate and receipt book. The latter was held by the trial judge in the court below to relate to the repayment of the weekly payments or premiums paid by the assured, in case of a cancelation of the certificate, and not to the payment of sick benefits under the general provisions thereof. In this we think he was correct. If the certificate was not canceled and the beneficiary continued to pay his weekly assessments or instalments provided for in the certificate, it was necessary for him to have his receipt book and also to retain the certificate as the evidence of his membership in the company. As to the interpretation of the proviso relating to sick benefits, we think the trial judge was also correct. That proviso is as follows: “ Provided, however, that in case sickness or accident or death should occur to the member named in this certificate within the first twenty weeks from the date of this certificate, the society shall return the premiums that have been paid and .cancel this certificate. After twenty weeks from the date of this certificate, the full weekly sick benefit and one half the funeral benefit will be paid; and, after one year from the date of this certificate, the entire funeral benefit will be paid.” It is admitted that the plaintiff’s sickness began within twenty weeks from the elate of the certificate. It was undoubtedly within the power of the company to have canceled the contract. It was not bound to do so, however. It did not do so but received two weekly instalments after the expiration of twenty weeks from the date of the certificate. The plaintiff claimed sick benefits after the expiration of twenty weeks. The trial judge in the court below allowed a recovery for sick benefits after the expiration of twenty weeks from the date of the certificate and prior to the institution of the suit. There is no provision in the certificate confining the beneficiary to sick benefits for a sickness beginning after the expiration of twenty weeks from the date of the certificate. Although true it is that the defendant wou|d have the right, in case sickness occurred within the twenty week period, to cancel the certificate, having waived this right and having accepted from the plaintiff the weekly payments provided for in the certificate after the expiration of twenty weeks, it was bound to pay in accordance with the terms of the contract full weekly sick benefits after twenty weeks from the date of the certificate. It is alleged, however, that the plaintiff waived the right to these sick benefits. We do not think so. Jocinski, the agent of the defendant who took the risk, testified: I told him the same time I insured him that he must wait twenty weeks, before he would get his benefit. I did not tell him that once but five or six times before he understood me. Country people do not understand quick the first time and I told him five or six times plainly that he must wait twenty weeks before he is beneficial.” After the sickness occurred, he says: “ I told him that he could not receive no money for this sickness.” Evidently this agent, as did the other officers of the company, interpreted the contract one way, before it was made, and in a different way after its provisions became operative. Leaving out of view the difficulty which the plaintiff had in understanding the English language and which renders doubtful just what he did assent to, the most that can be said is that he assented to an interpretation placed upon the contract by the defendant or its agents. He did not surrender any rights thereunder. Pie made no new contract. He waived no remedy. Both parties claim to have a judicial interpretation of their rights under the contract as contained in the certificate. The question as to whether or not the plaintiff was sick after the expiration of twenty weeks from the date of the policy was left to the jury. The interpretation by the court below of the certificate as to both questions involved in the case was in our opinion correct. The defendant’s point that “ under all the evidence, the verdict must be for the defendant ” was properly negatived, and the only question of fact was submitted to the jury, whose finding thereon should stand. The judgment is affirmed.