Morrell v. Northern Pacific Railway Co.

On Rehearing. Birdzell, J. This is an action brought by a shipper to recover damages of the defendants for their failure to deliver to the consignee at Chicago certain live stock which the plaintiff loaded for shipment at Killdeer, North Dakota. The proof shows that on September 19, 1918, the plaintiff shipped from Killdeer 24 head of cattle, 21 steers, and 3 heifers, in car No. 84,945. When this car reached Chicago several days later, it did not contain the stock originally loaded in it, but it did contain some 22 cows and 22 calves. It appears that these were sold by the commission company, to which the plaintiff had consigned the stock originally contained in the car, and the net proceeds, amounting to $1,650.49, were remitted to the plaintiff. The stock which plaintiff had loaded in the car was of much higher grade and more valuable than that contained in the car when it reached Chicago. The jury, in its verdict, has given defendants credit for the amount received by the plaintiff as proceeds of the sale of the inferior stock which admittedly belonged to somebody else. The difference in the value of the cattle delivered to the carrier and those delivered at the destination represents the damages which were awarded by the jury in the sum of $2,750. The defendants introduced no evidence at the trial, and upon this appeal they rely upon errors which will be considered below. It is first contended that the action should have been dismissed for the reason that the proof showed the shipment to have been made under — 539 — the terms and conditions of a special contract, which was not alleged in the complaint. It is claimed in support of this contention that the complaint is predicated upon the common-law liability of the carrier, whereas the proof shows that the liability, if any, was for breach of the special contract. In this connection, too, may be considered the contention advanced by the appellant, that the action should have been dismissed for the failure of the plaintiff to show compliance with the terms and conditions of the same contract. In the complaint the plaintiff alleged the delivery of the stock to the defendant company as a common carrier, “and that the defendant railway company on that date at Killdeer, North Dakota, undertook and agreed, for a consideration thereafter to be paid, to so transport said live stock over its lines of railroad and over the lines of its connecting common carriers, and issued to the plaintiff its contract, shipping receipt or bill of lading, whereby the defendant railway company became liable to the plaintiff for any loss or damage to said stock during such transportation, and for failure to deliver said stock to said consignee. The failure to deliver is not alleged in the complaint as a breach of the shipping contract, but it is nevertheless alleged. In their answer, the defendants, among other things, plead that the cattle were received and transported under the terms and conditions of the special written contract, a copy of which is made a part of their answer. Elsewhere in the answer, defendants set forth and rely specifically upon one of the provisions of the contract. Erom these references to the pleadings, it will readily be seen that, even if the complaint were considered deficient in allegations showing reliance upon the special contract of carriage, the omission is rendered entirely immaterial by the answer which specifically admits that the shipment was made under the special contract. The omission, if any, is wholly cured by the answer. Phillips, Code Pl. § 84; Bliss, Code Pl. 2d ed. § 437; Pom. Code Rem. 4th ed. § 575; Heffernan v. Supreme Council, A. L. H. 40 Mo. App. 605; Price v. Patrons’ & F. Home Protection Co. 77 Mo. App. 236; Whitley v. Southern R. Co. 119 N. C. 724, 25 S. E. 1018. As this special contract was in evidence, there was clearly no failure of proof in the sense contended for under the appellants’ first point. Since, in our consideration of this case, we shall regard the right of — 540 — the plaintiff to recover under the pleadings and proof as being dependent upon the contract, the case of Cooke v. Northern P. R. Co. 22 N. D. 266, 133 N. W. 303, and 32 N. D. 340, L.R.A.1916D, 345, 155 N. W. 867, relied upon by the appellants, is not deemed applicable. The appellants contend that the action should have been dismissed for the failure of the plaintiff to allege and prove notice of his claim within ninety days in accordance with the stipulation in the contract. It is pointed'out that the shipment was an interstate shipment, and controlled by the acts of Congress so far as applicable (Adams Exp. Co. v. Croninger, 226 U. S. 491, 57 L. ed. 314, 44 L.R.A.(N.S.) 257, 33 Sup. Ct. Rep. 148; Missouri, K. & T. R. Co. v. Harriman, 227 U. S. 657, 57 L. ed. 690, 33 Sup. Ct. Rep. 397; Northern P. R. Co. v. Wall, 241 U. S. 87, 60 L. ed. 905, 36 Sup. Ct. Rep. 493; 10 C. J. 136, 140), and that the stipulation in question with reference to notice is one specifically authorized by § 8604a, Comp. Stat. 1918. The stipulation reads: “As a condition precedent to the shipper’s right to recover any damages for delay in transit or for loss or injury to any of the stock, the shipper must give notice in writing of his claim therefor to some officer or station agent of the company within ninety days after delivery of such stock at destination.” This court, in the case of Hatch v. Minneapolis, St. P. & S. Ste. M. R. Co. 15 N. D. 490, 107 N. W. 1087, held that it was not incumbent on the plaintiff, in the first instance, to either allege or prove the giving of notice for which the shipping contract provided. The shipping contract in that case, in regard to notice, was quite similar to the present one. It is contended that, in view of the decisions of’the United States Supreme Court with reference to the waiver by carriers of the benefit of stipulations in shipping contracts, the rule of the' Hatch Case, supra, can no longer stand. The decisions referred to firmly establish the rule that the waiver would amount to discrimination among patrons, and as such is prohibited and void. See Chicago & A. R. Co. v. Kirby, 225 U. S. 155, 56 L. ed. 1033, 32 Sup. Ct. Rep. 648, Ann. Cas. 1914A, 501; Phillips Co. v. Grand Trunk Western R. Co. 236 U. S. 662, 59 L. ed. 774, 35 Sup. Ct. Rep. 444; Georgia, F. & A. R. Co. v. Blish Mill. Co. 241 U. S. 190, 60 L. ed. 948, 36 Sup. Ct. Rep. 541; Missouri, K. — 541 — & T. R. Co. v. Ward, 244 U. S. 383, 61 L. ed. 1213, 37 Sup. Ct. Rep. 617; Baltimore & O. R. Co. v. Leach, 249 U. S. 217, 63 L. ed. 570, 39 Sup. Ct. Rep. 254. We do not find it necessary to determine in this case whether the rule in the Hatch Case can be reconciled with the decisions last referred to. It is clear, however, that if it can be reconciled, the case must be held to go no further than to prescribe rule of procedure rather than a ride of substantive law. The stipulation before us requires the giving of notice of claim within ninety days “after delivery of such stock at destination.” From the facts established beyond dispute it appears that the stock covered by the contract was never delivered at destination, and that the recovery is based upon its nondelivery. The purpose of such a provision is doubtless to enable the carrier to investigate claims while the evidence is fresh, and thus to afiord a means of protection against fraudulent and -exaggerated claims. That it was not intended to shield carriers from liability occasioned by their negligence may well be inferred from the provisions of § 8604a, U. S. Comp. Stat. which recognizes not only the right of carriers to require ninety days’ notice of claim, but which further provides that “if the loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.” In the instant case it appears prima facie that the loss of the cattle was due to negligence, and it would, therefore, seem to be a case controlled by the proviso above quoted, wherein the carrier is prohibited from requiring notice as a condition precedent to recovery. In addition to this, it seems well settled that stipulations which limit the time for filing notices from the delivery of the property at destination are not applicable where the property is never delivered. See 10 C. J. § 487, p. 335; 4 Elliott, Railroads, § 1526; 4 R. C. L. 991; Southern R. Co. v. Webb, 143 Ala. 304, 111 Am. St. Rep. 45, 39 So. 262, 5 Ann. Cas. 97; Merchants & Miners Transp. Co. v. Moore, 124 Ga. 482, 52 S. E. 802, 19 Am. Neg. Rep. 138; Cleveland, C. C. & St. L. R. Co. v. C. & A. Potts & Co. 31 Ind. App. 564, 71 N. E. 689; Sheldon v. New York C. & H. R. R. Co. 61 Misc. 274, 113 N. Y. Supp. 676; Patterson v. Missouri, K & T. R. Co. 24 Okla. 747, 104 Pac. 31; Tolmie v. Michigan C. R. Co. 19 Ont. L. Rep. 26-29. For these reasons — 542 — we are of the opinion that compliance with the stipulation requiring notice was not a condition precedent to the plaintiff’s right of recovery. It is contended that the plaintiff cannot recover, because his brother and agent, Jesse .Morrell, in entering into the shipping contract on his behalf, signed the plaintiff’s name in the blank on the back of the contract, intended to identify any person or persons accompanying the stock in transit. The contract provides that the shipper will care for the stock while in possession of the company and will furnish one or more attendants; that if the shipper fails to furnish one or more attendants, anything done by the company with respect to the care of the stock shall be considered as done at the shipper’s request and as his representative. The evidence shows that the carrier knew that no one was accompanying the shipment. It was, therefore, not relieved of its duties with respect to the care of the stock. 6 Cyc. 438; 10 C. J. 109; 4 R. C. L. 982. The failure of the shipper to comply with this provision clearly does not make the act of the carrier in delivering the stock to the wrong person or in converting it to its own use, the act of the shipper. It was still charged with performing its duty as a carrier and of making delivery under the contract. It is also contended that the instructions were prejudicial in that the court charged the defendants with liability as insurers, and refused proffered instructions to the effect that the defendants were not insurers, but only liable for negligence. It must be borne in mind that the plaintiff proved the delivery of the stock to the defendants and its nondelivery at destination, and that no evidence was introduced by the defendants. Neither in the cross-examination of the plaintiff’s witnesses were any facts adduced that would explain in any manner the failure of the defendants to deliver the plaintiff’s stock at destination. From proof of such facts a presumption of negligence arises, and, though this presumption be one of fact and rebuttable, the jury, under the state of the evidence offered, would not have been justified in drawing any other inference. So, if full effect be given the stipulation in the shipping contract, whereby the liability of the carriers is limited to negligence, it does not follow that error was committed in refraining from instructing the jury that they could not find for the plaintiff unless they found the defendants to have been negligent. There was no evidence to over — 543 — come the presumption of negligence arising upon the plaintiff’s proof. The error, if any, was not prejudicial. As said in 10 C. J. 247: “The custody of the goods being shown to have been in the carrier, and their loss or the failure to produce them being established, the burden of showing that there was no negligence, or at least of explaining the loss in a manner not prima facie negligent, is usually held to rest on the carrier. . . . The presumption of negligence raised by a proof, of failure to deliver goods on .demand is not rebutted by mere proof that the goods cannot be found without any affirmative explanation of their disappearance. Ordinarily, the question of negligence is for the jury; but where there is no dispute as to the facts, the question of whether the goods have been properly cared for may become one of law.” See also 4 R. C. L. 993. Errors are assigned upon the- admission of evidence bearing upon the measure of damages. Various witnesses testified to the value of the stock at Killdeer, North Dakota, and it is claimed that the proper measxire of damages is the value at Chicago. The plaintiff should have proved the value at Chicago. From a reading of the testimony, however, it appears that the value at Killdeer, as testified to, 'was based upon the Chicago market. In the absence of a showing that the market had declined between the date of shipment and the date delivery should have been effected under the contract, the defendants were not prejudiced by the testimony which established the value at Killdeer. We cannot assume that they were prejudiced. Consequently, there is no merit in this contention. At the close of the case, the attorney for the defendants moved to dismiss the action as to the Northern Pacific Eailway Company on the ground that the company w'as not operating its railroad at the time, the same being under Federal control. For the reasons stated in McGrath v. Northern P. R. Co. ante, 303, 177 N. W. 383, this motion should have been granted. It is contended, however, that a new trial should be awarded the defendant Walker D. Hines, Director General of Eailroads of the United States, on the ground that the defense of the government was prejudiced by reason of the failure to dismiss the action as to the Northern Pacific Eailway Company. It does not appear that any motion for substitution was made under order No. 50 of the Federal Eailroad Administration, nor that the trial preliminary to the ver — 544 — diet was in any way prejudiced or hampered by reason of the Northern Pacific Company being joined as a defendant. No substantial reason is assigned or facts stated from which we can say that the defendant railroad administration has been prejudiced by the joinder of the railway company. The judgment will, therefore, be affirmed as to the latter defendant, and the action dismissed as to the Northern Pacific Railway Company. It is so ordered. Christianson, Ch. J., and Robinson, J., concur. Bronson, J. I concur in result.