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 Railway 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 Railway, one of the defendants, and some of the facts are set out in the report of that appeal in107 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 Railway 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 *Page 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 be carried, and the time within which any claim for damages would be settled. It may well be assumed that when these letters were written, the well-known usage and custom of issuing bills 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 carriage, 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, but 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 *Page 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 the place of destination as for the labor and expense of conveying them there. Riley v.Horne, 15 E.C.L. 551.
While the carrier may not contract against its own negligence (1 Hutchinson on Carriers, Sec. 450), it may contract so as to put the burden of proving the negligence upon the plaintiff.
It was so held in the case of N.J.S.N. Co. v. Bank, 6 How, 384, which was followed by our predecessors in the case ofBankard v. B. O.R.R., 34 Md. 197.
In the former case, MR. JUSTICE NELSON, speaking for the Supreme Court, said: "The respondents having succeeded in restricting their liability as carriers by special agreement, the burden of proving that the loss was occasioned by the want of due care, or by gross negligence, is upon the libellants, which would be otherwise in the absence of any such restriction."
In the case at bar the contract of carriage provided that if the shippers elected not to accept the reduced rates for transportation and the conditions contained in the bills of lading, they should give notice to the agent of the receiving carrier in writing, and by paying a somewhat higher rate, the carrier's common law liability would attach except as limited by the laws of the United States and of the several States, so far as any such statutes applied.
The plaintiffs deliberately chose the reduced rate, and thereby assumed under the conditions of the bills of lading which they accepted the burden of proving negligence against the carriers in case any loss or injury to the goods should *Page 228 occur in the course of the transportation, and it is not for this Court to relieve them of the burden which they thus assumed.
As regards the stipulation in the bill of lading requiring any claim for loss or damage to be made in writing within thirty days after the delivery of the property, we think that such stipulation was waived by the carrier, whose agent with full knowledge raised no objection to the claim on that ground. 5 Am. Eng. E. Law (2nd Ed.), 322-5.
No objection is made to the granting of the plaintiff's second prayer concerning the measure of damages, except on the ground that there is not sufficient evidence to go to the jury as to the market value of the goods at Baltimore, in either an injured or uninjured condition on their arrival in that city.
We think the evidence in this respect too meagre, but as there is a provision in the bill of lading to the effect that "the amount of any loss or damage for which any carrier becomes liable, shall be computed at the value of the property at the place and time of shipment under this bill of lading," the measure of damage should be in accordance with this provision; that is, their value should have been ascertained at Atlanta, as of the days and times of shipment. It was so held by this Court in the case of McCoy v. Erie R.R. Co., 42 Md. 498, under a similar provision in the bill of lading in question in that case. Of course, the parties may waive this provision in the present case, if they so desire.
We think the proceedings were properly brought in tort jointly against both carriers. B. O.R.R. Co. v. Pumphrey,59 Md. 399; 1 Poe Pldg., Secs. 296, 526, and 528; Mershon v.Hobensack, 22 N.J.L. 380.
As to the appeal of the Paper Mills Company from the action of the trial Court in dismissing the suit as against the Central of Georgia Railway Company, we think such action was proper.
The plaintiffs had closed their case without offering any evidence whatever of negligence on the part of this defendant, and by the contract of carriage under which the goods were shipped no negligence could be presumed against it from *Page 229 the mere fact that the goods which had been delivered to it in good condition were received at their destination from the terminal carrier in a damaged condition.
For these reasons we think there was error on the part of the learned Judge in the Court below in granting the plaintiffs' first and second prayers, and in refusing to grant the defendant's second, eighth and ninth prayers, and we must therefore reverse the judgment in No. 62, but as the plaintiffs may be able upon a second trial to adduce evidence of negligence, we will award the plaintiffs a new trial as to the Merchants and Miners' Transportation Company.
Judgment in No. 62 reversed with costs and new trial awarded.
Judgment in No. 63 affirmed with costs to appellee.