Hess v. South Dakota Central Railway Co.

CORSON, J. This is an appeal by the defendant from a judgment in favor of the plaintiffs and from- the order denying a new trial. The action was instituted by the plaintiffs to recover $75, the value of a belt used on a threshing machine outfit alleged to have been delivered to the defendant as a common carrier at the way station of Thomas on the line of its road to be carried by the defendant to Watertown and there to be delivered to the plaintiffs, which property was lost in transit, or at least not delivered to the plaintiffs. The answer of the defendant is a general denial. It is disclosed by the evidence that the plaintiffs sold the belt to one Beebe under a guaranty that if it was not satisfactory it might be returned to the plaintiffs and a new belt would be supplied by them to the said Beebe to take its place; that Beebe, being dissatisfied with the belt, left it at Thomas with a friend, there being no depot at that place, to be shipped by him to the plaintiffs at Watertown; and that the same was delivered to the railroad company and taken aboard its train, but for some reason not explained the defendant failed to deliver it to the plaintiffs, who brought this action to recover the value of the same. A number of errors are assigned, but in the view we take of the case the only questions presented for determination by this court are: (1) Did 'the court err in permitting the witness Pless to answer the question, “Who is the owner of the belt at this time?” (2) In permitting the witness Hess to testify as to his arrangement with Beebe to furnish him with a new belt in case the one sold to him was defective or not satisfactory. (3) In permitting the witness Hess to testify as to his contract with the company from which he purchased the belt to return any defective belt [544] and receive a new one therefor. (4) Did .the court err in refusing to direct a verdict for the defendant at the close of the -plaintiff's evidence on the grounds stated? (5) Did the jury err in finding a verdict for the sum of $75 in favor of the plaintiffs? [1] On the trial the plaintiff Hess was asked the following question: “Mr. Hess, who is the owner of the belt at this time?” This question was objected to as incompetent, immaterial, and calling for the conclusion of the witness. The objection was overruled -and exception taken. He answered: “The belt belongs to Hess & Rau. That is the condition they are sold on.” The defendant moved to strike out this answer, which motion was not ruled upon by the court and the defendant took exception. It is contended by the appellant that the objection to this question should have been sustained for the reason that it stated a conclusion and not the facts upon which the conclusion was founded. This objection is clearly untenable under the ruling of this court in the case of Hawley v. Bond, 20 S. D. 215, 105 N. W. 464, in which this court held, as appears from the headnote, as follows : “In an action to recover property levied on, alleged to belong to the plaintiff and not to the judgment debtor, plaintiff was entitled to testify that the property was hers, in answer to a question as to who was the owner at the time of the levy, over an objection that the question called for the witness' opinion, and not for a fact.” And the court in its opinion quotes in considerable length from the decisions of the learned Court of Appeals of New York and the Supreme Court of Iowa, sustaining the views expressed by this -court. [2] In the case at bar, however, the evidence clearly establishes the ownership of the belt in the plaintiffs1 independently of the answer of Hess to the question propounded, as it appears by the evidence in this case that under the contract -between the plaintiffs and Beebe, as testified to,by plaintiff Hess and by Beebe, the latter had the .right to return the belt, and, having -delivered the same to-the defendant consigned to Hess & Rau at Watertown, the belt was thereby delivered to the plaintiffs and they became the owners of the same. It seems to be a general rule that where property is delivered to a common carrier, consigned -to a person named, such delivery [545] ■presumptively' constitutes a delivery to the party named as consignee. In 6 Cyc. 511, it is stated: “The presumption that the title to the g'oods passes to the consignee on delivery to the carrier will sustain an action by the consignee as owner, either in tort or for breach of contract; the contract of shipment being presumed to have been made for his benefit” — citing among others the following cases: Griffith v. Ingledew, 6 Serg. & R. (Pa.) 429, 9 Am. Dec. 444; The Geiser (D. C.) 19 Fed. 877; Green v. Clark, 13 Barb. (N. Y.) 57. The rule is thus laid down in 3 Enc. Pl. & Pr. 829: “As a general rule, the consignee is considered the person prima facie entitled to sue for loss or injury to goods shipped, as the law intends that by delivery to the carrier the title to the goods vests in the consignee. The presumption thus raised may, nevertheless, be rebutted; and, if overcome, the action may properly be brought in the name of the consignor.” And Hutchinson on farriers (3d Ed.) states the law in section 1304 as follows: “When the carrier has subjected himself to liability for the loss of the goods or for injury done to them while in his custody, and it becomes necessary to compel him to make compensation to the injured party by an action at law, the first question to be determined is, in whose name the action must be brought. This is, -however, a question about which there can be but little difficulty. The presumption of the law is that the party to whom the goods are consigned is their owner and the person who is entitled to sue for the damage, and the action should in most cases be commenced in his name. But notwithstanding the presumption, it by no means necessarily follows that, the consignee is in fact the owner, or that he is any wise interested in them, or that he is the'offiy party entitled to sue the carrier for the loss or damage.” In the somewhat analagous case of -Southern Express Co. v. Armstead, 50 .Ala. 352, U'f rule was stated by the leyne l Supreme Court of Alabama as follows: “The consignee of goods has a right to sue for their loss by the carrier, notwithstanding another party may be the owner of them. The obligation is to- deliver ■to him. Generally, the property vests in him by the mere delivery [546] to the carrier. Although the absolute or general owner of personal property may support an action for any injury thereto, if he have the right of immediate possession, this does not necessarily divest the right of the consignee to sue, notwithstanding he has never had the actual possesion, 1 Chit. Plead. 6, 61, 153; Everett v. Saltus, 15 Wend. (N. Y.) 474.” It is contended by the appellant in this case that the presumption on the part of the plaintiffs is overcome by their evidence. But we are of the opinion that the presumption was not overcome in this case, for, as before stated, Beebe had the right under his contract with the plaintiffs to return' tire property to them, and he exercised the right by delivering the property to the defendant addressed to the plaintiffs as consignees. The title to the property, therefore, and right to its possession, was transferred by Beebe to the plaintiffs. We are unable to discover in the evidence that Beebe retained any ownership of the property after he delivered it to the railroad company consigned to the plaintiffs. [3] It is further contended by the appellant that the evidence on the part of the plaintiffs establishes the fact that the belt was of but little value, and that the plaintiffs were not, therefore, entitled to recover the $75 damages awarded by the jury. We are of the opinion that this contention should be sustained .under the provision of section 2326, C. C., which provides: “Where certain property has a peculiar value to a person recovering damages for a deprivation thereof, or injury thereto', that may be deemed to be its value against one who had notice thereof before incurring a liability to damages in respect thereof, or against a willful wrongdoer.” In the case at bar there is no evidence proving, or tending to .prove that the defendant had notice of the peculiar value of this belt to the plaintiffs before incurring liability to , damages in respect thereof. The plaintiffs therefore were only entitled to recover the market value of the proprty as against the defendant, and'not its peculiar value to them, and, there being no evidence of the market value, the jury were not authorized to find a verdict for the sum of $75 or any other definite sum under the evidence. We have discussed the question as to the ownership of the belt at considerable length for the reason that the same question may arise on another trial of the action, and it is proper for us in such cases to. express our views upon the question. [547] [4] We are further of the opinion that the evidence as to .the contract between the plaintiffs and Beebe and ¡the plaintiffs and the company from which they purchased the belt was properly admitted for he purpose of determining the ownership of the property and the right of the plaintiffs to bring this action, but not for the purpose of showing a “peculiar value” of the belt to- the plaintiffs, in the absence of proof that the defendant had notice of its peculiar value. The judgment of the circuit court and order denying a new trial are therefore reversed.