#### Laughlin and another vs. The Chicago and Northwestern Railway Company.

*Common Cm'rier of Goods*— *Last of several Camriw'S*— Loss *of Goods*— *Presumption.*

1. TJpon proof of the existence of a certain state of facts at a certain time, in respect to the condition of goods, the jury may presume that the same continued up to the time when the evidence shows a different state of facts to have existed.

3. Thus where goods in a hox were shipped by three successive carriers, and when delivered to the consignee (although there were no external indications of the fact) the hox was found to have been opened, and certain goods abstracted therefrom, the jury may presume, in the absence of evidence to the contrary, that the hox remained unopened until it came into the possession of the *last*carrier, and that the loss occurred through its fault.

APPEAL from tbe Cbcuit Court for *Dodge*County.

Tbe facts upon wbicb tbe plaintiffs sought to recover in tbis action will appear from tbe opinion. A motion by defendant for a nonsuit was denied; and a verdict having been found for tbe plaintiffs, a new trial- was also denied, and judgment rendered on tbe verdict; from which defendant appealed.

*Mayham & Perkins,*for appellant,

denied that there was any evidence in tbis case upon wbicb tbe verdict could be sustained; and as to tbe case of *Smith v. K Y. Central B. B. Co.,*relied upon by tbe plaintiffs, contended that tbe opinion of Mr. Justice Daniels showed tbe existence of a state of facts in that case, entirely unlike anything in tbis, from wbicb tbe jury might well have inferred that tbe injury sued upon occurred while tbe goods *205wére in tbe possession of tbe last carrier, tbe defendant in tbat action.

*James Coleman,*for respondent,

cited *Smith v.N.Y. Central B. B. Co.,*43 Barb., 225, affirmed by tbe Court of Appeals (Appendix to 88 How. Pr. B., 666); *Sleeper v. Van Middlesworih,*4 Denio, 431, and antborities there cited; and tbe reference to tbe same in *People v. Snyder,*41 N. Y., 397.

Dixok, C. J.

Tbe amount pecuniarily involved in tbis case is small and trifling, but tbe principle is important and not by any means free from doubt or difficulty. Tbe plaintiffs, as consignees and owners, residing at Eond du Lac, in tbis state, sue to recover tbe value of four pieces, about 100 yards, of clotb, which, with a considerable quantity of other cloths, making in all three boxes, marked and addressed to them at tbat place, were consigned by Messrs. Allen, Granclin & Co., of Jamestown, New York. Tbe cloths were purchased by tbe plaintiffs of tbe consignors in Jamestown, and delivered by tbe latter at tbat place to tbe Atlantic and Great "Western Eailway Company for transportation, and a receipt taken. Tbe plaintiff *Carey*testifies to an understanding, but it is not shown with whom, tbat tbe goods were to be carried by tbe Atlantic and Great Western Eailway to Mansfield, Ohio; by tbe Pittsburgh and Port Wayne Eailroad to Chicago, and by tbe Chicago and Northwestern Eailway to Eond du Lac. Tbe shipping receipt, however, by which tbe Atlantic and Great Western agreed to carry only to Mansfield, specifies no route beyond tbat place. Those railways, in tbe order and at and between tbe places named, constitute connecting and continuous lines of railroad communication from Jamestown to Eond du Lac, and by those lines tbe boxes in question were in fact transported, and in proper time delivered by tbe defendant, tbe *Chicago and Northwestern Bailway Company,*to tbe plaintiffs, at Eond du Lac, in apparent good order. Tbe plaintiffs received tbe boxes and paid tbe freight and charges; but when tbe *206boxes were opened, it was ascertained tbat tbe four pieces of cloth were missing. Tbe boxes, at tbe time tbe defendant delivered and tbe plaintiffs received them, did not appear to have been broken open or disturbed. There were no external or visible signs or marks of tbe breaking, though, upon opening them at tbe store of tbe plaintiffs, it was observed tbat tbe nails and fastenings of one of them gave way much more easily than those of tbe others, and tbe cloths in tbat box were displaced and deranged, and some pieces appeared to be gone. Of tbe condition of tbe boxes when they came to tbe possession of tbe defendant at Chicago, no evidence was given; but tbe presumption must be, as to all outward appearances at least, tbat it was tbe same as when delivery was made at Eond du Lac. Proof tbat tbe four pieces of cloth were in tbe boxes when they were delivered to tbe railway company at Jamestown, was clearly and positively made. Tbe boxes, or one of them, bad been opened, and tbe pieces of cloth taken or stolen, somewhere between Jamestown and Eond du Lac; but at what place, or what particular time, or by whom, tbe proofs give not tbe slightest indication. Upon this state of facts or evidence given by tbe plaintiffs, tbe defendant moved a nonsuit, which was refused by tbe court, and tbe cause submitted to tbe jury, who returned a verdict against tbe defendant for one hundred dollars. Tbe defendant afterwards moved for a new trial, which motion was denied, and judgement was entered in favor of plaintiffs, from which this appeal is taken.

Upon this record a very interesting, and to my mind doubtful, question arises, as to whether any, and, if so, what presumption is to be indulged against tbe *Chicago and Northwestern Company,*so as to charge tbat company with liability for tbe loss. It is manifest tbat tbe recovery against it cannot be sustained without tbe aid of presumption of some kind. To maintain then’ action tbe plaintiffs must show, either by direct evidence of tbe facts themselves or by legitimate and proper inference from other facts proved, *first,*tbat tbe cloths which are the *207subject of suit were iu tbe custody of tbe defendant, as a common carrier, for transportation over its road; and secondly, that while so in tbe custody of tbe defendant they were lost. These two facts, either by direct proof or by legal and proper inference or presumption, must have been established, or the. verdict cannot be sustained. The direct proof is wholly wanting. No one knows, or can say with any certainty whatever, that the cloths ever came to the possession of the defendant at all. The most that can be said, as a mere natural inference from the facts proved, is, that they *might*have come to its possession, and so have been lost or stolen while in its custody. As a mere natural inference or presumption of fact to be drawn or indulged by the jury, it is the slightest and weakest possible, if indeed there exists any foundation for it. And I do not see that there is any foundation according to Mr. Starkie’s definition of natural presumptions, or presumptions of *mere fact*If there be a presumption, therefore, upon which the defendant is to be held liable, it. must be of the second class spoken of by that learned author, namely, “ *legal*presumptions made by a jury, or presumptions of *law and*fact.” *Welch v. Sackett,*12 Wis., 257; *Graves v. The State,*id., 593.

Does such legal presumption exist in this case? The presumption claimed and relied upon is, that a particular state óf things being once proved, that state is presumed to have continued until the contrary is established by evidence either direct or presumptive. The position is, that the cloths being proved to have been in the boxes at the time of their delivery to the Atlantic & Great Western Railway Company, the presumption of law is, that they continued therein until the boxes came to the possession of the defendant, unless the contrary be shown, the burden of which rests upon the defendant. The existence of a presumption of this kind in certain cases is not denied, but the point is upon its applicability here. If the plaintiffs had brought their suit against the Atlantic & Great Western Company, could that company have escajsed liability on the ground *208of such presumption? And so, if the Pittsburg & Port Wayne Company had been sued, could it have avoided responsibility on the same ground? Could both these companies have exonerated themselves and imposed liability for the loss exclusively upon the defendant, when there was no more evidence of the loss having occurred while the boxes were in the custody of the defendant than when in the custody of either of themselves? If those companies could have done so, then it must have been upon some technical application of the doctrine of presumption — upon a presumption which is artificial rather than natural, and is raised and sanctioned by the law from motives of necessity or policy, to give certainty to the remedy and prevent *&*failure of justice in such cases.

As the common carrier next in order, the defendant^ was bound to receive and transport the boxes when tendered. It was bound to receive them in the condition in which they were. It had no means of investigation or inquiry into their contents. It had no right to open the boxes or examine what they contained, and if it had, could not have detected the loss by such examination, and so have refused to receive and carry. It must taire the boxes as they were, with no external signs or appearances of breaking or injury, and nothing to give warning that the cloths had been previously abstracted or removed, and carry them forward to their place of destination. Under these circumstances, the rule or presumption of law which mates the defendant liable for the value of the goods, unless (what seems quite impossible to be done) it shows where the loss actually took place, must be supported by most clear and satisfactory reasons of policy or necessity, or otherwise it should be rejected. It must be shown that greater injustice or more certain injustice will ensue from its rejection, than will or may follow from its adoption. I have been, as I have said, in very considerable doubt; but examination convinces me that there are such reasons, and that both principle and authority sustain the presumption. The very uncertainty which exists as to when or where the *209cloths were taken out, or in whose custody the boxes then were, and the difficulty or impossibility of ever ascertaining those facts, make the presumption absolutely necessary. What is difficult or impossible for the defendant to find out with respect to the breaking and larceny, is still more difficult or impossible for the plaintiffs. The defendant possesses means and facilities which the plaintiffs do not. To say that • the plaintiffs shall not recover because they have not ascertained and proved that the clothes were taken while the boxes were in the custody of the defendant, is, in effect, to say that they are without remedy in the law for-their loss. If required to make such proof to establish a cause of action against this company, then the same proof would be required in a suit against either of the others, and the plaintiffs could not recover against any, although it is certain that one of them is or should be responsible for the loss. If the plaintiffs knew or could prove in whose custody the boxes were when the cloths were taken, there would be no hardship, perhaps, in requiring them to sue that company. But the plaintiffs do not know, nor is it possible for them to ascertain this, and, unless aided by presumption, they are without remedy, which is a positive and certain injustice. I know of no more reasonable or proper .presumption to apply than that here invoked. In fact, I know of no other fitted to the facts and circumstances of the case. It is true, the defendant may not be'the company which ought in very fact to be visited with the consequences of the loss, but it is at the same time true that it *may*be such company. The cloths may have been taken while the boxes were in its custody. It is not certain that they were not, and therefore not certain that injustice has been done the defendant. On the other hand the ’ wrong and injustice done the plaintiffs, if they are dismissed without remedy, are certain. They are no matter of doubt or speculation. If there were no redress in such case, it could no longer be the boast of our law that there is no wrong without its remedy, and the strict liability of common earners, whenever two or more are *210associated in tbe transportation or connected in tbe line or route, would be at an end. It would be far more in harmony witb tbe rules of tbe common law respecting sucb liability, that any or all of tbe carriers so associated, or whose lines or routes connect and who bare bad possession of tbe goods, should be held liable, at tbe option of tbe owner or consignee in sucb case, than that none of them should be. And tbe reasons for adhering to those rules of tbe common law probably exist at tbe present day quite as much as ever; and by some they are thought to be even more cogent. The difficulties, nay even impossibilities, by which owners would be beset if put to tbe task of ascertaining where their packages or boxes were broken open and contents plundered when in transit over our long routes, are well known, and are illustrated by tbe facts of this case. They are also portrayed by Chief Justice Perley, in *Lock Co. v. Railroad Co.*(Sup. Ct. N. H.), 10 Am. Law Reg., N. S., 260, 263; by Waite, C. J., in *Elmore v. The Naugatuck Railroad*Company, 23 Conn., 482; and by SMITH, J., in *McDonald v. Western Railroad Corporation,*34 N. Y., 501, 502. In tbe first named case, tbe chief justice says: “ Any rule which should have tbe effect to defeat or embarrass tbe owner’s remedy, would be in direct conflict with the principles and whole policy of tbe common law.” -I am of tbe same opinion. I think this is no time to relax tbe stringent and wholesome rules of tbe common law, and must bold that the doctrine of presumption was rightly applied by tbe court below in aid of the plaintiffs in this case.

There is a most singular absence of reported cases bearing upon tbe question of presumption here considered. One would suppose that eases of tbe kind must frequently have arisen, but only one directly in point has been cited, and I know of no other. It is *Smith v. New York Central Railroad*Company, 43 Barb., 225. Tbe decision was affirmed in tbe Court of Appeals at tbe December Term, 1869; but the case in that court is unreported. See *Index*“ *Unreported*Cases,” 41 N. Y., 620. We have been favored, however, with manuscript copies of the *211opinions of tbe judges, DANIELS and Grover, and that of tbe latter is printed at length in tbe brief of counsel for tbe plaintiffs. Tbe reasons for applying tbe presumption, that tbe condition of a thing once proved is presumed to continue until tbe contrary is shown, to a case of this kind, are well stated by Johnson, J.. in 48 Barb., 228, 229.

And tbe case of *Brintnall v. S. & W. R. R. Co.,*32 Vt., 665, presented a somewhat similar question. A box of goods, marked and directed to tbe plaintiff at Boston, was delivered by tbe plaintiff’s agent to tbe defendant at Saratoga Springs, to be transported by tbe defendant over its road on tbe way to Boston. Castleton was tbe terminus of tbe defendant’s road toward Boston, where it connected with another road in tbe line of communication in that direction. In an action on tbe case for negligence as a common carrier and not delivering tbe box of goods to tbe next carrier, and to recover damages for its loss, it was held sufficient, *prima fade,*to establish a right of recovery on tbe part of tbe plaintiff, to show tbe delivery of tbe box to tbe defendant, and that it had - not arrived at Boston, and was lost. Tbe court say: “ Tbe argument is, that showing tbe box did not arrive at Boston, tbe end of tbe route, but was lost, does not prove or tend to prove tbe defendant did not deliver it to tbe next carrier, because it might have been lost between Castleton and Boston. It must be admitted it is very inconclusive proof of tbe fact, but still we think it has some tendency to establish it. Tbe box is proved into tbe bands of tbe defendant; there is no evidence that anybody else ever bad it, or that it was ever in tbe possession of any other carrier in tbe line. Tbe usual and ordinary course of things, what is always expected, and what generally proves true, is, that goods forwarded upon such a line arrive at their destination; and therefore tbe fact that goods do not arrive at one end of tbe line, is some evidence that they were not sent from tbe other. It may be said that this reasoning would include tbe defendant’s road as well as tbe rest of tbe earners in tbe line, but tbe *212defendant is proved to bave bad tbe box, while there is no proof that either of the others ever did. *But we place the case mainly upon the ground that this was really all the proof the nature of the case permitted to the plaintiff,*and that proof of a delivery by the defendant to the next carrier was a matter that was peculiarly within the power of the defendant, and not at all in the power of the plaintiff, unless the defendant and the connecting roads preserved evidence of the transfers of all freight from one road to the other.” And in another place the court say: “ *But in such cases a plaintiff is only hound to give such proof of the loss as the nature of the case admits of and fairly is in his power to bring."*The facts of that case differed materially from the present, but the reasoning of the court applies with much force here. See also *Tarbox v. Eastern Steamboat Co.,*50 Maine, 339; and *Hastings v. Pepper,*11 Pick., 41.

In *Naugatuck R. R. Co. v. Beardsly Scythe Co., 33*Conn., 218, it was held, under the peculiar circumstances, of the case, that the consignee should look to the carrier whose negligence caused, the deficiency, rather than the last carrier who delivered the goods.

On the whole, I am of opinion that the judgment of the circuit court was right and should be affirmed.

*By the*Court.— Judgment affirmed