Merchants & Miners' Transportation Co. v. Eichberg

²²⁵ Worthington, J., delivered the opinion of the Court. This is an action of tort brought in the Superior Court of Baltimore City by the appellees, trading as The Paper Mills Company, against the Merchants and Miners’ Transportation Company, and the Central of Georgia Eailway Company, as joint defendants, to recover for damages alleged to have been sustained by the plaintiffs through the negligence, improper conduct, lack of skill and care, and wrongful action of the defendants, and each of them, in transporting a large quantity of wrapping paper and paper bags, and also certain machinery from Atlanta, in the State of Georgia, to Baltimore, in the State of Maryland. The case was before this Court at the October Term, 1907, upon the question of the sufficiency of the service of process on the Central of Georgia Eailway, one of the defendants, and some of the facts are set out in the report of that appeal in 107 Md. 363 . The service of process having' been held sufficient-, the case proceeded to trial in the Court below against both defendants, and a judgment in that Court for $9,734.76 was obtained against the Merchants and Miners’ Transportation Company, alone, the Central of Georgia Eailway Company obtaining a judgment in its favor, under an instruction of the trial Court.

The unsuccessful contestants in both instances have appealed to this Court. We will first consider the appeal of the Merchants and Miners’ Transportation Company. The learned Judge in the Court below by granting the plaintiffs’ first prayer, practically decided that the whole contract of carriage between the parties is contained exclusively in the two letters, one of date June 12th, 1906, and the other of date June 25th, 1906, which passed between the plaintiffs and Mr. C. S. Hoskins, Freight Traffic Manager of the Merchants and Miners’ Transportation Company, and which are printed in the record. But we think the true contract is to be found in these two letters, or rather in the one of date June 25th, 1906, and in the bills of lading issued to ²²⁶ the plaintiffs by the Central of Georgia Railway Company, taken and considered together.

The letters set forth merely the rates at which the goods will he carried, and the timei within which any claim for damages would he settled. It may well he assumed that when these letters were written, the well-known usage and custom of issuing hills of lading with the several shipments, were- within the contemplation of the parties. Indeed the plaintiffs in their letter of June 12th refer to the “clean B-L of the Central of Georgia for evidence” as to the condition in which the shipments would leave Atlanta, thus clearly indicating that they had in mind the receipts usually issued by carriers when goods are accepted by them for carriage. A similar view was held by the Court of Appeals of New York in the case of Donovan v. Standard Oil Company, 155 N. Y. 112 , where the Court said: “This instrument (the bill of lading) must be read with the letter referred to under which the plaintiffs entered into the general arrangement, in order to ascertain the full extent of their duties and obligations as 'carriers.” ■ .Having decided that the bills of lading form part of the contract of carnage, it becomes our duty to construe certain portions of them, which give rise to the controversy in this case. .. .The clause which gives rise to the most important question is contained in the eleventh section of these bills of lading, and is .as follows: “Nor shall negligence be presumed against any.carrier.” .

The question is how does this clause affect the burden of proof ? . We think it must be given its full force. That is to say, the burden is upon the plaintiffs to show not only the injury, birt also the. negligence that, caused the injury. The common law presumption of negligence, where damage merely is shown, is negatived by the express stipulation of the contract.

It will not suffice to prove merely that the ²²⁷ goods were delivered to the carrier in. good condition and received by the consignee in a damaged condition, but negligence causing the injury must be proven. In the absence of contract, the law makes the carrier an insurer, and as the goods it carries may be injured or destroyed by many causes not due to its own negligence or want of care, the carrier is as much entitled to be paid a premium for its insurance of their safe delivery at