Graves J.
The plaintiffs by their declaration allege that at the time therein mentioned, the company were- common carriers between London, in Canada, and Detroit in Michigan, arid that being such common carriers, the plaintiffs delivered to them three hundred barrels of flour belonging to the plaintiffs of the value of $6,000 to be .safely carried and conveyed by the company from London to Detroit, and then and there by the company to be safely and securely delivered to the plaintiffs, and that the company did not nor would safely or securely carry the flour to Detroit, nor at the latter place safely or securely deliver the same, whereby it was lost to the plaintiffs.
The company having pleaded the general issue, the jury upon the trial returned a special verdict by which they found that on the 17th of April, 1866, the plaintiffs delivered of their own property to the company at London, three hundred barrels of flour to be transported by the company to Detroit, and then by the latter to be delivered to the plaintiffs, as common carriers; that on the 24th of April the plaintiffs complained that the flour was unnecesarily delayed; that on the 26th of April, in the afternoon, it arrived in Detroit, and was deposited in the warehouse of the company, of which the plaintiffs were notified at half past [127]*127five in. the same afternoon, and that the plaintiffs then commenced receiving the flour and took away ten barrels a little after six of the same evening, which was the usual hour of closing business for the day at the depot; that it was the custom of the company to keep open after business hours to deliver goods if requested, but such request was not made in this case; that on the night of that day the balance of the flour was destroyed by fire without negligence or fault of the company; that in the ordinary course of business, the company should have delivered the flour in three days after its receipt, and was therefore guilty of negligence in not carrying it from London to Detroit with diligence.
The damages were fixed by the jury at $3,459 44, to be recovered by the plaintiffs, if the court should think them entitled to -judgment upon the facts.
Upon this verdict the court below awarded judgment in favor of the plaintiffs, and we are required to determine whether in this there was error.
The company object to a recovery against them upon two grounds. Firát, that their duty as carriers had ceased at the time of the fire; and second, that the delay in conveying the flour to Detroit, as found by the jury, will not support the judgment.
It is proper to observe that this is a special verdict, formally sufficient, and which we are required to examine according to the settled rules applicable to such proceedings. We are not permitted to assume any facts not therein stated, or to infer any from those found, but must take the finding as the jury have made it, subject however to the allegations in the pleadings. — Street v. Roberts, 2 Sid. 86; Tancred v. Christy, 12 Mees, and Wels. 316; Jenks v. Hallet and Bowne, 1 Caines R. 60; Seward v. Jackson, 8 Cow. 406; McCarty v. Hudsons, 24 Wend. 291; Birckhead v. Brown, 5 Hill, 634-646; Hill v. Covell, 1 Comstock 522; Eisemann v. Swan, 6 Bosworth, 668; People v. Wells, 8 Mich. 104.
[128]*128A strict observance of the law on this subject was required of the court below, in order to preserve the relative powers of the court and jury; and this court, having in the premises neither original jurisdiction nor authority to ascertain facts by inference, or to presume any not actually found, should sedulously endeavor to avoid any infraction of these rules.
An opposite course would favor confusion of the sepaarate functions of court and jury; would tend to subvert a vital distinction between original and appellate jurisdiction, and would imply an assumption of right in this court to go behind the record to which the law has carefully confined us.
On recurring to the declaration, it is very obvious that the plaintiffs have not counted on delay in the carriage of the flour, while the verdict, when coupled with the pleadings, and .restricted by them, as it must be, denotes very clearly that the real ground of complaint against the company was the non-delivery.
It is alleged in the declaration that the company assumed to carry and convey safely, and, thereupon, safely and securely to deliver; and, if this were taken in the broadest sense, instead of most strictly against the pleader it could not be considered as averring a duty or undertaking to carry within any particular time.
Admitting it to be one of the duties- of the carrier to transport without unreasonable delay, the neglect of that duty could not be a ground of recovery against him, without an averment to express and charge the duty, and the assignment of a breach of it.
I am therefore of opinion that for this reason, without suggesting others, the plaintiffs could claim no right to recover for the negligent delay in.carriage which seems to have occurred-
It remains to inquire, whether a recovery upon this record was authorized on the ground of non-delivery.
[129]*129The undertaking of the company, as common carriers, to transport the plaintiffs’ flour from London to Detroit, an d to deliver it safely' and securely at the latter place, to the plaintiffs, was distinctly alleged; and the jury as distinctly found this allegation to be true. It was likewise alleged that, by the negligence and default of the company in the premises, the flour was lost to the plaintiffs; and the jury found that the carriage to Detroit took place, but that the flour, after reaching the warehouse of the company at the latter place, was, with the exception of ten barrels, removed by the plaintiffs, destroyed by fire in the warehouse in the following night. These findings, taken by themselves» supported that part of the plaintiffs’ case based on nondelivery, and established a prima facie right in the plaintiffs to recover for the property destroyed.
The flour, according to the record before us, having been received by the company, and apparently in their character of ' carriers, simply for transportation to Detroit, and delivery to the plaintiffs at that place, it was for the company to show that the non-delivery, or the loss at their warehouse, which made delivery impossible, proceeded from causes, or was marked by circumstances, which relieved them from the liability imputed by the plaintiffs.
Having come under the responsibilities of carriers by receiving in that character, and ostensibly in that character only, the property for transportation and delivery, these responsibilities must have necessarily continued until delivery, or the occurrence of some event which the law would consider as sufficient to excuse it.
Recognizing the necessity of meeting the case thus made against them, the company take the position that a circumstance did occur, that an event did take place which relieved them from liability for the loss of the property.
They claim that, inasmuch as the flour had reached their warehouse or depot in Detroit, and had been by them deposited therein, -their responsibility as carriers was by such [130]*130act exchanged for their responsibility as warehousemen, and in which character of course they would not be liable.
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Graves J.
The plaintiffs by their declaration allege that at the time therein mentioned, the company were- common carriers between London, in Canada, and Detroit in Michigan, arid that being such common carriers, the plaintiffs delivered to them three hundred barrels of flour belonging to the plaintiffs of the value of $6,000 to be .safely carried and conveyed by the company from London to Detroit, and then and there by the company to be safely and securely delivered to the plaintiffs, and that the company did not nor would safely or securely carry the flour to Detroit, nor at the latter place safely or securely deliver the same, whereby it was lost to the plaintiffs.
The company having pleaded the general issue, the jury upon the trial returned a special verdict by which they found that on the 17th of April, 1866, the plaintiffs delivered of their own property to the company at London, three hundred barrels of flour to be transported by the company to Detroit, and then by the latter to be delivered to the plaintiffs, as common carriers; that on the 24th of April the plaintiffs complained that the flour was unnecesarily delayed; that on the 26th of April, in the afternoon, it arrived in Detroit, and was deposited in the warehouse of the company, of which the plaintiffs were notified at half past [127]*127five in. the same afternoon, and that the plaintiffs then commenced receiving the flour and took away ten barrels a little after six of the same evening, which was the usual hour of closing business for the day at the depot; that it was the custom of the company to keep open after business hours to deliver goods if requested, but such request was not made in this case; that on the night of that day the balance of the flour was destroyed by fire without negligence or fault of the company; that in the ordinary course of business, the company should have delivered the flour in three days after its receipt, and was therefore guilty of negligence in not carrying it from London to Detroit with diligence.
The damages were fixed by the jury at $3,459 44, to be recovered by the plaintiffs, if the court should think them entitled to -judgment upon the facts.
Upon this verdict the court below awarded judgment in favor of the plaintiffs, and we are required to determine whether in this there was error.
The company object to a recovery against them upon two grounds. Firát, that their duty as carriers had ceased at the time of the fire; and second, that the delay in conveying the flour to Detroit, as found by the jury, will not support the judgment.
It is proper to observe that this is a special verdict, formally sufficient, and which we are required to examine according to the settled rules applicable to such proceedings. We are not permitted to assume any facts not therein stated, or to infer any from those found, but must take the finding as the jury have made it, subject however to the allegations in the pleadings. — Street v. Roberts, 2 Sid. 86; Tancred v. Christy, 12 Mees, and Wels. 316; Jenks v. Hallet and Bowne, 1 Caines R. 60; Seward v. Jackson, 8 Cow. 406; McCarty v. Hudsons, 24 Wend. 291; Birckhead v. Brown, 5 Hill, 634-646; Hill v. Covell, 1 Comstock 522; Eisemann v. Swan, 6 Bosworth, 668; People v. Wells, 8 Mich. 104.
[128]*128A strict observance of the law on this subject was required of the court below, in order to preserve the relative powers of the court and jury; and this court, having in the premises neither original jurisdiction nor authority to ascertain facts by inference, or to presume any not actually found, should sedulously endeavor to avoid any infraction of these rules.
An opposite course would favor confusion of the sepaarate functions of court and jury; would tend to subvert a vital distinction between original and appellate jurisdiction, and would imply an assumption of right in this court to go behind the record to which the law has carefully confined us.
On recurring to the declaration, it is very obvious that the plaintiffs have not counted on delay in the carriage of the flour, while the verdict, when coupled with the pleadings, and .restricted by them, as it must be, denotes very clearly that the real ground of complaint against the company was the non-delivery.
It is alleged in the declaration that the company assumed to carry and convey safely, and, thereupon, safely and securely to deliver; and, if this were taken in the broadest sense, instead of most strictly against the pleader it could not be considered as averring a duty or undertaking to carry within any particular time.
Admitting it to be one of the duties- of the carrier to transport without unreasonable delay, the neglect of that duty could not be a ground of recovery against him, without an averment to express and charge the duty, and the assignment of a breach of it.
I am therefore of opinion that for this reason, without suggesting others, the plaintiffs could claim no right to recover for the negligent delay in.carriage which seems to have occurred-
It remains to inquire, whether a recovery upon this record was authorized on the ground of non-delivery.
[129]*129The undertaking of the company, as common carriers, to transport the plaintiffs’ flour from London to Detroit, an d to deliver it safely' and securely at the latter place, to the plaintiffs, was distinctly alleged; and the jury as distinctly found this allegation to be true. It was likewise alleged that, by the negligence and default of the company in the premises, the flour was lost to the plaintiffs; and the jury found that the carriage to Detroit took place, but that the flour, after reaching the warehouse of the company at the latter place, was, with the exception of ten barrels, removed by the plaintiffs, destroyed by fire in the warehouse in the following night. These findings, taken by themselves» supported that part of the plaintiffs’ case based on nondelivery, and established a prima facie right in the plaintiffs to recover for the property destroyed.
The flour, according to the record before us, having been received by the company, and apparently in their character of ' carriers, simply for transportation to Detroit, and delivery to the plaintiffs at that place, it was for the company to show that the non-delivery, or the loss at their warehouse, which made delivery impossible, proceeded from causes, or was marked by circumstances, which relieved them from the liability imputed by the plaintiffs.
Having come under the responsibilities of carriers by receiving in that character, and ostensibly in that character only, the property for transportation and delivery, these responsibilities must have necessarily continued until delivery, or the occurrence of some event which the law would consider as sufficient to excuse it.
Recognizing the necessity of meeting the case thus made against them, the company take the position that a circumstance did occur, that an event did take place which relieved them from liability for the loss of the property.
They claim that, inasmuch as the flour had reached their warehouse or depot in Detroit, and had been by them deposited therein, -their responsibility as carriers was by such [130]*130act exchanged for their responsibility as warehousemen, and in which character of course they would not be liable.
No question arises in the case as to the necessity of notice, as that was, in fact, given, and the verdict contained no facts which will enable us to judge of the effect of the notice, in respect to the right of the company to shift the character of the bailment. It must be assumed that no such facts existed.
That the same party may be both carrier and warehouseman at the same time, cannot be disputed; but the two employments, if carried on by one party, must after all be as separate and distinct in quality as though they were pursued by different parties, and their functions cannot be so commingled as to attach to the same property at the same time.
This is made evident by the diversity of duties and responsibilities of the two employments, and the nature and incidents of the business; and the ground taken by the company that the custody was passed from and by them in the character of carriers to themselves in their character of warehousemen, and that this saved them from liability, is an admission of the ample nature of the distinction.
Indeed, the difference is quite as striking between the' quality of carrier and that of warehouseman, as between a party in his personal capacity, and in that of administrator.
As, therefore, the two characters are completely distinguishable, though belonging to the same party, it seems a necessary result that an engagement or agreement, ostensibly in the one only, does not by necessity imply any engagement or employment in the other also.
The circumstance that a party acts generally as a carrier or being such, assumes in a given case, to handle property apparently in that character only, can no more imply that an agreement has been made with him to deal with the property as a warehouseman, than will an engagement with [131]*131a warehouseman to store goods imply a contract with the latter to act as carrier. And the agreement by the carrier to transport goods can never by itself involve an agreement with him that he may reduce his responsibility as carrier to that of warehouseman, at the end of his route by deposit in his depot.
Without presuming to question the necessity of applying established principles to those cases to which they are suited, it appears to me that some of the courts in their desire to lay down general rules, have not attended sufficiently to the circumstance that carriers and their customers are still at liberty to regulate by contract, express, or implied, much of the business to be done between them; and that the propriety of the application of this or that legal rule must often depend upon such regulations.
The course to be pursued by the carrier, to shield himself from further responsibility in his quality of earner when the transportation is accomplished, is not the subject of abstract law disconnected from the surrounding circumstances, but is a matter depending upon contract, and to be determined by reference to the express stipulations of the parties, or the varying facts from which, when presented, the law will infer the rights, duties and obligations of the parties.
When the party has taken it upon himself to act in his character of carrier in a given case, it becomes a question for the jury, upon the evidence, or for the court upon the facts when specially found, whether he also obtained the right or became obliged to act as warehouseman also in any stage of the business; and the mere fact that the carrier though a railroad company, possessed a warehousing depot at the end of tlie route, would not suffice to raise the legal inference of a right to shift the characters by immediate deposit in the warehouse, especially if it appear that the carrier was ostensibly employed as carrier only.
[132]*132'If, when prosecuted for non-delivery to the consignee, the carrier would excuse himself by showing that the property was destroyed by fire, and that the destruction occurred shortly after he had changed the nature of the bailment, and exchanged his character of carrier. for that of warehouseman touching the goods in question, he would have to satisfy the jury that the passage from himself as carrier to himself as warehouseman, was not simply his mere voluntary act, but one either warranted by an express contract, or a contract fairly inferrible from the nature of the business, the known necessities under which it was carried on, the established usage on the subject and the like; and in case of a special verdict it would be necessary that the express contract, if any, should be found, or, if not, that the particular facts should be stated from which the law would infer the right asserted by the carrier.
We have seen that the verdict in this case finds in terms that the company in the particular character of carriers undertook to transport the flour and deliver it to the plaintiffs at Detroit, while no undertaking by them as warehousemen, or any agreement by them in or for that character is found by the jury.
It appears that the company were carriers by rail, and it is shown by the verdict that they had a warehousing depot at Detroit, in which they in fact deposited the flour a few hours before the fire, and that they had a custom to keep open after business hours when requested, for the purpose of making delivery, and these are the only facts in the verdict which can be claimed to warrant the legal inference of any right of the company to cast off their responsibility as carriers by deposit in their warehouse.
The finding that the company undertook as carriers to' transport and deliver, could not imply as matter of law the right claimed by them to change the form of the bailment by their own act of deposit in the warehouse; but in the state of this record such finding would tend rather to [133]*133exclude tbe idea of an agreement that the company should possess the right to deal with the property as warehousemen or in any character than that of carriers; and it seems to me that the other facts taken by themselves or with those just mentioned, can afford no ground whatever, to infer as matter of law the right claimed by the company. The existence of those facts appears to be quite as consistent with the absence as with the presence of the right asserted, since, for aught that is stated, a delivery at the warehousing depot without the intervention of the character of warehousemen or depository was altogether practicable, easy, and usual, and was alone within the contemplation of the parties. The verdict discloses no usage or other circumstance to justify us in saying that the bailment for carriage included one for storage also, or which, in my judgment, would warrant the inference that the company were entitled to'^relieve themselves as carriers by the act of passing the flour from the cars to the warehousing depot. I think, therefore, that the judgment of the court below should be affirmed, with costs.
Cooley Oh. J. and Christiancy J. concurred.
Campbell J.
I adhere to the opinion which I expressed in the case of McMillan v. Michigan Southern and Northern Indiana Railroad Company, 16 Mich. 79, that the liability of railway companies for goods in warehouse awaiting delivery is that of warehousemen, and not common carriers. As I gave my reasons for this conclusion in that case, and as nothing has been suggested which has in any way modified them, I do not deem it necessary to repeat them. I think the plaintiffs in error are entitled to judgment of reversal.