(115 111. 407)

WABASH, ST. L. & P. RY. Co. v. JAGGERMAN and others.

Filed January 25, 1886.

1. CARRIERS OF GOODS-CHANGE OF DESTINATION BY CONSIGNEE.

Where a consignee, having his place of business at East St. Louis. was in the habit of receiving goods in car-load lots billed to St. Louis, and had directed a carrier, whose line terminated at East St. Louis, to hold at East St. Louis all such goods carried by it, and consigned to him at St. Louis, held, that the carrier was justified in still delivering such goods to a connecting carrier, and forwarding them to St. Louis in spite of such notification; that the carrier was entitled to have the jury so instructed; and that an instruction that such notice bound the carrier to deliver the goods at East St. Louis was er

roneous.

8. SAME LIMITATION OF LIABILITY IN BILL OF LADING CONSIGNEE'S FORMER USE OF SIMILAR BILL ADMISSIBLE.

Evidence that a consignee has on former occasions used similar bills of lading to the one involved in the case, and containing the same provision limiting the carrier's liability, is admissible as tending to show that he had knowledge of the limitation clause, and had assented to it.1

8. SAME-BILL OF LADING CONTRACT WITH CARRIER TO BE FOUND BY COURT. Where a consignee has accepted a bill of lading from a carrier, and afterwards brings suit against cho carrier for breach of contract, it is for the court to tell the jury what, by the bill of lading, the contract is, and a reference of the question to the jury is erroneous.

4. SAME-CARRIAGE TO DESTINATION BEYOND CARKIER'S LINE-LIMITATION BY CONTRACT.

Where a carrier receives goods to carry, marked to a particular place beyond his line, he is bound, under an implied agreement from the marks and directions, to carry to and deliver at that place, although it be a place beyond his own line of carriage. While the carrier may, by contract with the shipper, limit his contract to one of carriage on his own line, the facts in the present case are held not to show such a contract.

Error to appellate court, Fourth district.
George B. Burnett, for plaintiff in error.

Metcalfe & Bradshaw, for defendant in error.

SHELDON, J. This was an action originally commenced before a justice of the peace to recover the sum of $140.25 damages, alleged to have been caused by the wrong delivery and unnecessary delay in the shipment of 165 barrels of apples. There was a judgment before the justice for $133.25, from which the defendant appealed to the circuit court. The trial in the circuit court resulted in a verdict and judgment for plaintiffs for $140.25, which judgment, on appeal to the appellate court for the Fourth district, was affirmed, and the defendant brings this writ of error.

The apples were shipped from Staunton, in Macoupin county, Illinois, on the evening of September 28, 1882, under a bill of lading, by which the railway company acknowledged their receipt, "to be forwarded to East St. Louis station on its line," and under the heading "Marks and Desti nation," in the bill of lading, is written, "G. A. Benton, St. Louis, Mo."

For full discussion of question of the limitation of liability by contract, see Rosen. feld v. Peoria, D. & E. Ry. Co., (Ind.) 2 N. E. Rep. 344, and note, 348, 349.

v.4N.E.no.7-41

The evidence shows that the apples arrived at East St. Louis at the usual time, September 29th; that in the afternoon of the 29th they were transferred, at East St. Louis, to the bridge and tunnel company, the connecting carrier between East St. Louis and St. Louis, to be sent to St. Louis; that the consignee was not notified of their arrival at St. Louis, and did not get them until the third or fourth of October, when they were received in a bad condition, and that the consignee had before given notice, at the general freight-office in East St. Louis, that he wanted goods sent to him at East St. Louis, and had given notice to hold car-load lots there and notify him.

The circuit court, at the instance of the plaintiffs, instructed the jury that if they believed from the evidence that the plaintiff shipped, on the railroad of defendant, one car-load of apples, in good condition, at Staunton, to Benton & Co., at East St. Louis, and that the apples were not delivered according to the contract, but were carried beyond the place of delivery, to St. Louis, and that, in consequence of the failure of the defendant to deliver said apples, said apples were injured and suffered damage, and that the consignees, Benton & Co., were compelled to sell said apples for less than what they were worth in market if delivered as stipulated at East St. Louis, then plaintiff is entitled to recover the dif ference between the value of said apples when they were received and when they ought to have been received by Benton & Co. The defendant asked the court to instruct the jury that, "under the bill of lading read in evidence in this case, it was the duty of the defendant, upon the arrival of the apples at East St. Louis, to deliver them to a connecting carrier to be transported to their destination; and if the jury believe from the evidence that the defendant transported said apples to East St. Louis without unreasonable delay, and there delivered to the St. Louis Bridge & Tunnel Company, a connecting carrier, for transportation to St. Louis, then the jury will find for the defendant," which instruction the court refused to give. This action of the court is assigned for

error.

It is the well-settled doctrine in this state that where a common carrier receives goods to carry, marked to a particular place beyond his line, he is bound, under an implied agreement from the marks and directions, to carry to and deliver at that place, although it be a place beyond his own line of carriage. Illinois Cent. R. Co. v. Copeland, 24 Ill. 332; Same v. Johnson, 34 Ill. 389; Same v. Frankenberg, 54 Ill. 88; Chicago & N. W. R. Co. v. Montfort, 60 Ill. 175; Erie Ry. Co. v. Wilcox, 84 Ill. 239. It was said in the Frankenberg and other cases that the carrier might, by special contract with the shipper, limit his liability to such damage or loss as might arise on his own line of carriage, and it is contended that, by force of the expression in the bill of lading, "to be forwarded to East St. Louis station on its line," there was an express contract to forward to East St. Louis, which overcame the implied agreement, from the "marks and destination," to carry to St. Louis, amounting to a special contract to forward to East St. Louis and no further.

We cannot give such force to this language of the bill of lading. East

St. Louis being the end of defendant's line, the agreement to forward to that place had that extent and nothing further. It was consistent with the implied agreement, from the mark of the place of destination, to carry and deliver at that place, which was St. Louis, and should not, in our opinion, be allowed to prevail over or in any way control such implied agreement. It follows that there was error in giving the instruction for plaintiff, and refusing the one asked by defendant. The instruction given refers it to the jury to say what the contract was, whereas the court should have told the jury what by the bill of lading the contract was; and in its latter part the instruction intimates the contract was to carry to East St. Louis. The refused instruction, abstractly considered, may not have been strictly accurate in excluding any liability after delivery to the connecting carrier; but, as applied to the evidence, we think the instruction should have been given.

This action originating before a justice of the peace, where there are no written pleadings, the verdict, it is said, may have been founded or the delay in the hands of the connecting carrier, the bridge and tunnel company, and therefore the judgment should be allowed to stand, notwithstanding such error as to instructions. It is a provision of the bill of lading that the railroad company should not be held responsible "for damage to perishable property of any kind, occasioned by delays from any cause." Nevertheless, there might have been liability in respect of delay coming from actual negligence, but there was here only the mere proof of delay, and no proof of negligence beyond the fact of delay. However, the jury should have been correctly instructed as to the contract. Their finding may have been for breach of contract and delay caused by delivery at St. Louis instead of at East St. Louis.

We think the court erred in the exclusion of proof that, prior to the shipment in question, plaintiffs had filled up similar blank bills of lading for shipments, which contained the same stipulation in relation to perishable property as the one in question, as that would have been evidence going to show knowledge of the provision in question, and plaintiff's assent thereto; and that there was also error in pernitting the witness Benton to testify that he had notified the general freight-office of defendant that he wanted goods sent to him at East St. Louis, and to hold car-lots there and notify him. He had no authority, from anything that appears in this case, to interfere and change the contract which had been made between the shipper and the defendant as to the place of delivery of the apples.

The judgment of the appellate court and of the circuit court will be reversed, and the cause remanded to the circuit court.

(115 Ill. 583)

KELLEY V. PEOPLE.

Filed January 25, 1886.

1. CRIMINAL LAW-SECOND AND THIRD OFFENSES-INCREASED PENALTIES-PROPORTION TO OFFENSE-SECOND JEOPARDY-CONSTITUTIONALITY.

The act of 1883 providing increased penalties for second and subsequent offenses of burglary, grand larceny, horse-stealing, robbery, forgery, or counterfeiting, (1 Starr & C. St. c. 38, par. 351 et seq.,) is not unconstitutional, either as visiting penalties disproportioned to the offenses under constitution of 1870, art. 2, § 11, or as placing the defendant in jeopardy a second time for the same offense. 1 Starr & C. St. p. 104, art. 2, §§ 10, 11.

2. SAME- SECOND OFFENSE MAY BE SECOND OF A CLASS OF SEVERAL CRIMES, AND NOT IDENTICAL IN KIND-STATUTE SO CONSTRUED.

The act above cited does not require that the second offense dealt with therein shall be a second instance of the identical crime for which the offender was first convicted; but provides that, whenever any person having been convicted of either of several enumerated crimes shall thereafter be con. victed of any one of such crimes, he shall be liable to such increased penalty. Therefore a conviction of burglary, accompanied by proof of a former conviction of robbery, constitutes a case of second offense.

8. SAME-ERROR IN FORMER CONVICTION IMMATERIAL.

The fact that the former conviction, which is proved in order to constitute a second offense, was erroneous, will not prevent the operation of the statute, if such error did not deprive the court of jurisdiction.

4. SAME-WAIVER OF JURY TRIAL IN CRIMINAL CASE.

Conceding that a trial by the court of a criminal case, the defendant having waived a jury, is erroneous under our constitution, (1 Starr & C. St. p. 104, art. 2, 5,) yet such an error will not make the conviction void; and such a conviction of one of the offenses enumerated in the act of 1883, will render a subsequent conviction of any of those offenses a second conviction within the meaning of the act.

5. SAME-JUDGMENT RESTING ON UNCONSTITUTIONAL PROCEEDINGS NOT ASSAILABLE COLLATERALLY-JURY TRIAL NOT JURISDICTIONAL.

The fact that the constitution of the state has been disregarded in the course of judicial proceedings will not render the judgment in which such proceedings terminate void, if the error was not upon a jurisdictional point; nor can such judgment be collaterally impeached. The trial by the court of a man upon a criminal charge, he having waived a jury, while an error, is not a jurisdictional error.

Error to criminal court, Cook county.

J. M. Longnecker, for plaintiff in error.

J. S. Grinnell, Prosecuting Atty., and Geo. Hunt, Atty. Gen., for the People.

SHELDON, J. Joseph Kelley, at the January term, 1884, was tried by a jury in the criminal court of Cook county for burglary; the indictment containing a count setting forth a former conviction, at the July term, 1882, of said Kelley for robbery. He was found guilty of burglary, and the jury, under the instruction of the court, fixed his punishment at 14 years' imprisonment in the penitentiary. The court sentenced him accordingly.

Several questions are raised with respect to the act respecting conviction upon second and third offenses, approved June 23, 1883. Laws 1883, p. 76. That act in its first section is as follows:

"That whenever any person, having been convicted of either of the crimes of burglary, grand larceny, horse-stealing, robbery, forgery, or counterfeiting, shall thereafter be convicted of any one of such crimes committed after such first conviction, the punishment shall be imprisonment in the penitentiary for the full term provided by law for such crime at the time of such last conviction therefor; and, whenever any such person having been so convicted the second time, as above provided, shall be again convicted of any of said crimes, committed after said second conviction, the punishment shall be imprisonment in the penitentiary for a period of not less than fifteen years: provided, that such former conviction or convictions and judgment or judgments shall be set forth in apt words in the indictment."

It is objected that the act is unconstitutional in that it violates the provision "that all penalties shall be proportional to the nature of the offense;" but it is because of a former conviction, for which the person charged has paid the penalty. Similar statutes have been adopted in many of the states, and they are upon the principle that it is just that an old offender should be punished more severely for a second offense; that repetition of the offense aggravates guilt. 1 Bish. Crim. Law, 959; 1 Whart. Crimes, § 13. It would be entirely competent for the legislature, in the absence of this act, to affix, as a punishment for the first commission of any one of the crimes named, the highest punishment that is authorized by the act, and it would not be for the court to say the penalty was not proportioned to the nature of the offense.

It is urged that under this act it is putting the accused in jeopardy twice for the same offense in violation of section 10, art. 2, of the constitution. There is no trial twice for the same offense, but twice for two crimes committed at different times. The constitutional objections are without force.

It is next insisted that, under this act, the second conviction must be for the same crime the former conviction was for. We do not so read the statute. The language is most plain: that, whenever any person, having been convicted of either of the several enumerated crimes, shall thereafter be convicted of any one of such crimes, etc. It seems quite clear that the second conviction is not to be of a particular one of the crimes, the one for which the former conviction was had,—but of any one of the crimes named. The record introduced to show a former conviction for robbery shows that the accused was indicted for robbery at the July term of court, 1882, and that he pleaded not guilty; that he waived the intervention of a jury, and was tried by the court without a jury, and found guilty by the court in manner and form as charged in the indictment, that is to say, of robbery,—and was sentenced to the penitentiary for one year.

It is insisted that this did not show a legal conviction of robbery; that the accused in a criminal case of felony cannot waive a trial by jury and be tried, by consent, by the court, and upon a finding of guilty on such a trial be legally sentenced thereon. Conceding this to be so, and that a judgment upon such a finding would be irregular and erroneous, it does not follow that such conviction was void,—an absolute nullity, and not to be taken here as a former conviction. There is a distinction between "void" and "erroneous;" and the general rule is un