Curtis Tire & Rubber Co. v. Goodrich Transit Co.

Moore, J. The plaintiff suffered a loss by fire under such circumstances that it claimed defendant was liable. It brought this suit to recover damages. At the close of the testimony a motion was made for a directed verdict on the part of the defendant. This motion was overruled and the jury returned a verdict in the sum of $7,633 in favor of the plaintiff. A *599 motion was made for judgment non obstante. This was overruled. A motion was then made for a new trial which motion was denied. The case is brought into this court by writ of error. The errors assigned may be grouped under three heads: Errors in the admission of testimony; errors in refusing requests to charge, and the charge as given; errors in refusing a directed verdict, and a motion for a new trial. The plaintiff was making automobile tires in Muskegon. It shipped a quantity of them by a boat owned by the defendant. Standard bills of lading were issued by the defendant to the plaintiff. Before the boat reached Chicago, water got into the hold of the vessel and water-soaked the goods shipped by the plaintiff. It is the plaintiff’s claim that defendant made an arrangement with it to recondition and repack the goods so they would be presentable and would pay the plaintiff for doing so, and would then convey the goods to the consignees as provided in the original bills of lading. These bills of lading were not surrendered. It is the further claim that plaintiff received the goods simply to put them in condition for the defendant when they were to be forwarded as stated. It is the further claim that they put the goods in condition and notified the defendant, and were directed to hold the goods because defendant’s warehouse was glutted with freight, and that the next day after one of these requests was made the goods were totally destroyed by fire. The defendant with its plea gave notice among other things that these tires at the time of their destruction by fire were in the sole possession and control of plaintiff ; that the contract of carriage made when the tires were originally shipped was terminated; that the title to said tires was in the plaintiff, and, when same were delivered to it by the defendant, plaintiff assumed *600 full control over the tires; and this was substantially its claim on the trial. The defendant said in substance that after the accident happened to the ship the goods were returned to the plaintiff under an arrangement that the plaintiff would take back the goods and recondition them and at a later date deliver them to the defendant for transportation; that plaintiff might send part of these goods to the same consignees and to replace them in part with other tires; that while the defendant was to pay the plaintiff for the work on the tires, the defendant claims that plaintiff had full control over the tires when they were taken back and the defendant had ceased to be a common carrier and had no responsibility regarding them whatever. The defendant further claims that it never afterwards refused to accept the goods for shipment as claimed by the plaintiff. The trial judge stated fairly the claim of the respective parties and submitted the case to the jury as follows: “There is only one question, gentlemen, for you to determine, and that is this, What was the arrangement and agreement between the plaintiff and the defendant after the time of the accident to the Alabama whereby the goods were injured or damaged? If you find by a preponderance of the evidence that it was agreed that the goods should be returned to the plaintiff for reconditioning or repairing, the defendant to pay the expenses thereof, and then to be returned to the defendant for continuation of their journey to the consignees to whom they had been originally consigned and under the original contract of shipment, the plaintiff having nothing to do with or control over the goods except to repair the damage done to them while on its boat, the same being done at the defendant’s request and for its benefit, then the original contract of shipment was still in force and the plaintiff is entitled to recover from the defendant .the value of the goods at the time they were *601 destroyed by fire, with interest at five per cent, per annum from .that time to this date. “If on the other hand, gentlemen, you do not so find but find that the goods were returned to the plaintiff and received by it to be reconditioned or repaired by the plaintiff at the defendant’s expense, but that plaintiff thereafter had entire control over them to again reship them to the original consignees or to others as they might later determine, and the goods were thereafter never re-offered to the defendant for shipment, in other words, that the original contract for shipment of the goods ceased and was entirely at an end when the plaintiff again received the goods, on or about March 24, 1920, and the goods were thereafter not held by the plaintiff at defendant’s risk but were under plaintiff’s control to do with in the future as it saw fit, then the defendant is not liable for the value and the plaintiff cannot recover. To put it another way, gentlemen, if the arrangement was that the goods were returned to the plaintiff on March 24, 1920, unconditionally, without any further responsibility or control by the defendant over them and for the plaintiff to do with them as it saw fit, thereafter, the defendant only agreeing to pay the expense of the repairs on them for the damage by the accident while they were on the boat, then, of course, the plaintiff cannot recover in this case and your verdict should be for the defendant. “To determine that question, gentlemen, or the question that is submitted to you, you should take into consideration' all of the evidence in the case, both the testimony of the witnesses and the exhibits offered and received in evidence, also take into consideration what the parties did regarding these goods after that time, and what was said in the correspondence as bearing upon what the agreement was between the parties, and take into consideration, gentlemen, all the facts and circumstances as disclosed by the evidence, as I say, bearing upon the question that I have referred to and which you are to determine, that is, as to what the arrangement and agreement was at the time the goods were returned by the defendant to the plaintiff and- under which the goods were returned by the defendant to the plaintiff.” *602 The position of counsel for the appellant is stated as follows: “Where goods are lost by fire, while in the control or possession of the owner, the loss must fall on the owner. This principle is elementary and there is no warrant for discarding this rule simply because the owner has made an attempt to ship the goods and such attempt has proved a failure resulting in the owner again having them in his possession and using them in whole or in part in preparing a new lot of shipments. Where it is sought under such circumstances, to create an exception to the rule, and hold the carrier for a loss when it had neither the possession of nor control over such goods at the time they were destroyed, the proofs should be convincing that such liability was created by special agreement; no such proof exists in the instant case.” Counsel cite in support of their position 1 Hutchinson on Carriers (3d Ed.), § 119; Stapleton v. Railway Co., 133 Mich. 187; Barron v. Railroad Co., 2 Ala. App. 555 (56 South. 862), and other cases. There is not much controversy about the law if the facts were as stated by counsel. The testimony as to the facts is in dispute. If the facts were as claimed by the plaintiff it had shipped its goods by the defendant’s line, had received bills of lading for them; the goods had been damaged so that the consignee would doubtless have refused them, and that plaintiff without surrendering its bills of lading simply undertook at the request of the defendant to put the goods in repair when they were to be reforwarded on the original bills of lading. If this contention was true we think it may be said that while the actual possession of the goods was in the plaintiff to make the repairs the constructive possession was all the time in the defendant. The diligence of counsel has not enabled them to cite a controlling authority. We think the pivotal question was one of fact and that it was fairly submitted to the jury. We have *603 considered the other questions, but think it unnecessary to discuss them. The judgment is affirmed, with costs to the appellee. McDonald, C. J., and Bird, Sharpe and Steere, JJ., concurred with MOORE, J.