Mershon v. Hobensack

Carpenter, J.,

delivered the opinion of the court.

At the trial in the court below various bills of exception were sealed, upon objections to the ruling of the judge, upon which error has been assigned in this court. The first bill was upon the exception taken because the judge refused to overrule a question objected to as too leading, and which was said to suggest the answer desired or expected. If the objection was well taken,, as to which it is not intended to express *377 any opinion, yet the error cannot bo remedied in this mode. The form of a question rests very much in the discretion of the judge, and if that discretion is improperly exercised, redress can only be obtained by application to the court for a new trial. Lt is not the subject of an assignment of error. It was so held in Chambers v. Hunt, lately decided in the Court of Errors.

The refusal to nonsuit formed the ground of the second bill of exceptions. The action is assumpsit, and the first count alleges the defendants to have been, at the time of the delivery of the goods, common carriers between Philadelphia and Trenton, and partners in said business. The goods lost, and for which the action was brought, were proved to have been purchased hv the plaintiff below iu Philadelphia, and delivered to Captain Mershou, one of the defendants, on board the Trenton Packet “ Two Bisters,” in order to be carried to Trenton. There was no question as to the fact of the vessel being engaged in the freighting business generally, and that those for whose benefit she was run came within the definition of common carriers, and were subject to the liabilities incident to that character. Every person who undertakes to carry, for a compensation, the goods of all persons indifferently, is, as to the liability, to be considered a common carrier. Evidence was given by the plaintiff to prove that the defendants were partners, and that they employed the said vessel in the freighting business between the two places. The joint liability rested upon this evidence, no proof of any special contract being made on the trial. The goods were delivered generally to be carried to their place of destination. When the plaintiff rested, the counsel of the defendants moved to nonsuit, because, as alleged, there was no sufficient evidence of the partnership. But even if the judge erred, which it is not intended to intimate, yet this court will not reverse, if sufficient evidence of the partnership was subsequently given. Passing by the argument of the counsel on this point, we will then simply inquire as to the proof of partnership appearing in the whole case, and which has been brought before us by bills of exception, afterwards sealed in the progress of the trial.

*378 The court having refused to nonsuit, the defendant produced and examined a witness, who stated that the vessel in question, as well as another engaged in the same business, was owned by Abner Mershon alone; that another son of the said Abner was the captain of the boat, who received a share of the gross earnings or freight, by way of compensation for his' services ; and further, that Thomas was not the captain of that boat, but only accidentally in charge of her during the trip. But in the evidence offered by the plaintiff, he did not rely merely on proof of an actual partnership of the defendants as common carriers. The case made by the plaintiff was, that the defendants held themselves out to the public as partners, and were chargeable as such, to third persons, who gave them credit accordingly. If such case was supported by sufficient evidence, it was all that was necessary. They will be held responsible, not upon the ground of the real relation between them, but upon principles of general policy, to prevent the frauds to which third persons would be liable who might give credit upon the faith of such supposed connection. The doctrine is too obvious and too well established to need the citation of authority.

The evidence showed that divers individuals, about the time when this controversy occurred, had had dealings with the defendants, as freighters on the Delaware, and settled with them indiscriminately; that they were regarded by these persons and others as partners; that on payment of freight by these persons, and on other occasions, each, at different times, gave receipts; that the receipts given by them were signed “ Abner Mershon & Son,” or “ Abner Mershom & Sons,” and sometimes “ Abner & Thomas Mershon.” Thomas Mershon, as well as his father, was proved ,to have given such receipts, and to have spoken of the business in terms which implied that he was jointly concerned with his father. Thomas Mershon was not only proved to have given receipts, but to have kept the accounts, and taken a leading part in the transaction of.the business connected with the boats. Both the defendants, at different times, spoke of the loss from the accident, which gave rise to this action, as one in which they were jointly con *379 cerned. It will not be attempted to recapitulate the testimony-in detail, and it will be sufficient in general to say, that much evidence of this character was produced to show that the defendants held themselves out to the public as partners, were so reputed, and were dealt with accordingly. Enough was shown to warrant the judge in submitting the question to the jury. We must suppose it was fairly submitted upon proper instructions, as no exception was taken to the ruling of the judge.

In the progress of the trial, the plaintiff offered to read in evidence certain receipts, some proved to have been signed by Thomas Mershon, and others by Abner Mershon, for the purpose of establishing a partnership between them. The receipts now referred to were signed “ A. Mershon & Sons.” The admission of these receipts was objected to, and, the objection being overruled, another bill was sealed.

It was said that the receipts so offered went to show, not a partnership between the defendants merely, but between Abner and two or more of his sons. Admitting that the defendants, in a suit against two partners, cannot on the trial turn the plaintiff out of court by proof of another partner, against whom the action ought also to have been brought, but that advantage of the omission can .only be taken by plea in abatement, the objection was, that the plaintiff, in his evidence, must be confined to the case as he has laid it. That, in order to prove a partnership against two, he cannot be permitted to prove a partnership between three persons.

The rule in regard to non-joinder is well settled, and has not been questioned since the case of Mice v. Shute, 5 .Burr. 2611. It is essential in an action against partners, and so against other joint contractors in an action ex contractu, that the evidence of the joint liability should extend to all the defendants, otherwise the plaintiff must be nonsuited. But if all the partners are not made defendants the case stands on a different fooling. If the defendant would take advantage of the non-joinder, he must do it at the proper time by a plea in abatement. By forcing defendants to plead this in abatement, or waive it entirely, they cannot turn the plaintiff round more *380 than once, by setting up fresh partners upon every new action. They must plead the whole truth of the case, and give the plaintiff a better writ. It seems to be immaterial how the fact of non-joinder is presented. Although it should appear, on the evidence produced on the part of the plaintiff, as by the bond or other written contract, that other persons are liable as joint contractors with the defendant, this is not a material variance, and the plaintiff will be entitled to recover. The only point in Bice v. Shute and other subsequent cases is, that a contract alleged to have been made by a sole defendant might be supported by a proof of a joint contract made by him and others. The court would not permit the objection to be raised at the trial to the variance between the case made by the plaintiff and his proof. It has even been held, that in debt on judgment against one, and nul tiel record pleaded, it could not be objected as variance that the judgment was in fact against the defendant and others, but that the objection in such case must also be taken by plea in abatement. Cocks v. Brewer, 11 M. & W. 51. See also Mount Stephen v. Brooke, 1 B. & Ald. 224; 2 Phil. Ev. 132; 1 Wms. Saund. 291, note 4.

Lastly. On the trial, the defendants offered to prove that there had been no mismanagement or want of care on the part of those having charge of the vessel at the time the accident happened by which the goods were lost; that they did all that careful men could do to avoid collision with the steamer, but that the accident was inevitable. This evidence was overruled, and the defendants again excepted.

Common carriers are in the nature of insurers, and the causes which will excuse them for the non-delivery of goods committed to their charge must be events falling within the meaning of the expression, act of God or public enemies; or they must arise upon some event provided for by the contract between, the parties, as by exceptions in the receipt, bill of lading, or other instrument employed in the transaction. 3 Kent 216; 2 lb. 598. In this case the goods were not, receipted for, there was no bill of lading or other instrument of contract, and the liability of the defendants,, therefore, depends upon general principles, and not upon the meaning of any *381 particular words of exception. There was no pretence to say that the accident in this case happened by the act of God, the disclaimer being simply, that it did not happen through the negligence of those having charge of the boat of the defendants. It would seem as if it was imputed to the want of due care by those on board the steamer, as the defendants, in a conversation with a witness, expressed their intention to apply to the railroad company, to whom the steamer belonged, for redress. As between the carriers and the owners of goods, the negligence or misconduct of a third person will not excuse the former, since a remedy lies over against the party so offending. A collision which may accrue through natural causes alone, as by the violence of the wind, may be called the act of God, and excuse ; but when it occurs through the negligence of either party, it can by no sound reasoning be brought within the meaning of that expression. The one implies a natural necessity, and that the accident was inevitable, the other relates to human action merely. If negligence was imputable to either party, the defendants are not excused. Now the offer was to prove due care ou the part of the defendants, not to show that the collision was the result of natural causes beyond the reach or control of skill and care on the part of those having charge of both vessels. The offer did not go far enough to form any defence.

But if the strict rule as to common carriers were admitted, and that tinder the general doctrine this might form no defence, yet it was urged that This evidence was admissible under the second and third counts, under which, it was said, the defendants were charged upon tlicir special undertaking. It was said, that in these counts the declaration not being upon the common law liability as common carriers, but upon their special undertaking, in which negligence was charged in the breach, negligence was put in issue.

It is not clear that the counsel of the defendants is right as to the necessity and effect of an averment of the employment of the defendants upon which the duty arises. In suits against common carriers the plaintiff may declare in case or assumpsit at his election, the former mode being sometimes *382 advisable in order to avoid the very difficulty which has been so much pressed in this case. When the plaintiff proceeds in case for breach of the duty to which the defendants may be subject in respect of their employment as common carriers, it seems necessary to state the character from which the duty arises. 1 Chit. PL 334 (Phil. ed. 1828); 2 lb. 357, note; Pozzi v. Skipton, 8 Ad. & Ell. 963. In assumpsit, however, it has been held that it is not necessary to commence with an inducement of the defendants being common carriers. It seems to be supposed that it will suffice if the declaration merely states the delivery, &e., and the undertaking to carry accordingly. .In Dale v. Hall, 1 Wils. 281, upon this every objection, there being no averment that the defendant was a common carrier, it was held that it might be proved that he was a common carrier, and that, under such declaration, he was answerable for all goods delivered to his care, unless within the two excepted cases. It was held that direct proof of negligence was not uecessary to charge him, nor would the disproof of negligence relieve him from his liability. See 2 Chit. PL 357, note; Bao. Abr., Tit. “ Gamers ” a, &c. The case has been questioned, as to the form of the pleadings, by a late eminent jurist, but no direct authority has been produced to the contrary. The cases cited by the author referred to are rather as to the character of the evidence necessary to support the action, than upon the application of the evidence to the pleadings. See Story on Bailments, § 504.

But assuming, as urged, that the plaintiff could not proceed upon the second and third counts upon the mere proof of the public employment of the defendants, but that a special undertaking must have been shown, yet the evidence was still incompetent. In the first count, the defendants were charged as common carriers; proof of that character, and of delivery and reception of the goods, had been given to the satisfaction of the jury, and upon this the law raised the duty to deliver them at the point of destination. The plaintiff had proved his case upon the first count, and it can be no defence to such a case to offer evidence against a supposed case on other counts of the same declaration, upon which the plaintiff has not pro *383 ceeded. The evidence offered was no answer to the case made by the plaintiff upon the first count, and, as to the second and third counts, it was entirely immaterial.

Judgment affirmed.

Affirmed, 3 Zab. 580

Cited in N. B. Steamboat Co. v. Tiers, 4 Zab. 713.