Vandalia Railroad v. Upson Nut Co.

Ibach, C. J. This action was brought by appellee against appellant and the Home Stove Company to recover the value of a carload of pig iron. The complaint was in two paragraphs, the first alleging that the iron was sold to defendants at their special instance and request, and the second declaring on a special contract for the purchase of the iron. Trial [254] by jury resulted in a verdict for defendant Home Stove Company, and against appellant. Appellant has assigned as error the overruling of its motion for new trial, under which it argues that its motion for a peremptory instruction in its favor should have been sustained, that the evidence is insufficient to sustain the verdict, and that the court erred in giving and refusing to give certain instructions. 1. [255] 2. [254] It was agreed in evidence that the carload of iron in question was ordered from appellee by the Home Stove Company on October 4, 1907, and was shipped from appellee’s plant in Cleveland, Ohio, about October 12, 1907, in a ear marked Erie 50361, by the Cleveland, Cincinnati, Chicago and St. Louis Railroad Company to Indianapolis, and arrived at the place where it was to be turned over to appellant for delivery to the Home Stove Company. There was evidence that the iron was never delivered to the Home Stove Company, and the jury so found by its verdict in favor of that defendant. In order to uphold the verdict against appellant railroad company, it must appear that the evidence justified the jury in finding that appellant converted the iron in question, for there was no claim that appellant ever contracted to purchase the iron, nor can appellant be held in this action as a common carrier for a breach of its contract to deliver. Under the theory of the complaint, appellant can be held liable only upon the ground that it converted the carload of iron, and that appellee waived the tort and sued upon the implied contract to pay its reasonable value. Therefore, the one question of importance presented by the appeal is, Did the evidence justify the jury in finding that appellant converted the iron in question? Appellant-urges that the evidence, construing it as strongly as possible in favor of appellee, shows no more than a failure to deliver, and that a mere failure to deliver is not a conversion. A conversion by a common carrier or other bailee implies some wrongful act, a wrongful disposition, or withholding of the property. There must be an affirmative wrong [255] ful act, and mere nonfeasance, or failure to perform a duty imposed by contract or implied by law, is not a conversion. There must be a wrongful taking or detention, or an illegal use, misuse, or assumption of ownership. A misdelivery by a carrier may be a conversion, but a mere nondelivery is not. Magnin v. Dinsmore (1877), 70 N. Y. 410, 26 Am. Rep. 608; Bowlin v. Nye (1852), 64 Mass. 416; Wamsley v. Atlas Steamship Co. (1901), 168 N. Y. 533, 61 N. E. 896, 85 Am. St. 699; Davis v. Hurt (1896), 114 Ala. 146, 21 South. 468; Glaze v. McMillion (1838), 7 Por. (Ala.) 279; Alabama, etc., R. Co. v. Kidd (1859), 35 Ala. 209. 3. The evidence shows that the iron in question was shipped in a car marked Erie 50361, to Indianapolis, and there turned over to appellant to deliver to the Home Stove Company. Appellant’s sidetrack runs north and south along the side of the Home Stove Company’s plant, for about 200 feet until it reaches a gate, entering the Home Stove Company’s yard, and from this point the sidetrack runs south into the yard for about 250 feet. The gate, which extends across the track, was kept locked at all times except when it was necessary to put cars in and out of the yard, and the key was kept in the stove company’s office. It was the custom of appellant to set the cars inside the gate that they might be unloaded, and we may say that the legitimate inference from the evidence is that delivery of cars from appellant to the Home Stove Company was not completed until the cars were taken through the gate and placed ready for unloading. From the records of appellant placed in evidence it appears that ear marked Erie 5036.1, loaded, was set on the siding north of the gate on October 18, 1907. On October 19, 1907, the car was checked on that siding by an employe of appellant as inaccessible. October 20 was Sunday, and the Home Stove Company’s plant was idle, and there is not a record of the car on that day. On October’ 21, according to the records of appellant, the ear [256] was removed from the siding as empty, was inspected at appellant’s yards and recorded as empty, and it is recorded as having been sent out empty in a train on October 23. Appellant’s conductor, who placed the car on the siding, admitted that he had signed the initials of the Plome Stove Company to a paper purporting to be a receipt for the car from that company on October 18, 1907, and admitted that he had given no notice to any agent or representative of the company when he placed it on the siding. It appears that this was not the first time he had signed the initials of the Plome Stove Company, but that he had never signed them with any authority from such company, or any of its agents. All of the several witnesses of the Home Stove Company testify positively that the car never passed within its gate. Its superintendent testifies that the iron was ordered for a special purpose, and he was on the lookout for the shipment, that he passed up and down the siding about five or sis times a day, and that it was not on the siding on October 19. The evidence is positive and uncontradicted that the iron was not unloaded by the Plome Stove Company on their siding, either to the north or south of the gate. There is no evidence to show what was the actual disposition of the iron. The jury found in answer to interrogatories that the car was placed by appellant on the sidetrack of the Plome Stove Company on October 18, 1907, north of the gate, that no notice was given to any officer or agent of the Plome Stove Company after placing it on the siding, that the ear was not unloaded north of said gate, and that it was not on October 19, 20 or 21 moved to the south of said gate, and that the car was never accepted by any officer or agent of the Plome Stove Company. What became of the iron seems to have been a mystery to plaintiff, to both defendants, to their counsel, and to the witnesses, and it is a mystery also to the writer of this opinion. But counsel for appellee suggest that the jury adopted as the most reasonable solution of the difficulty, the [257] theory that the loaded car was set upon the siding, by appellant, and was removed by it loaded. There is evidence to show that the ear was set upon the siding loaded, and if this is true, then it must have been either unloaded there, or removed loaded. The jury, it is contended, might have believed that the car was removed loaded. Then, appellee’s counsel contended, if appellant removed the car loaded, and later refused upon demand to deliver the iron to the Home Stove Company, there was such a misdelivery and wrongful appropriation and detention of the property by appellant as to constitute a conversion. However, our view of the evidence is not the same as that of appellee’s counsel. The evidence, as detailed above, is amply sufficient for the jury to find that the iron was never delivered to the Home Stove Company. But we do not think it sufficient to show that appellant converted the iron. It appears that the iron was delivered to appellant, and that appellant never delivered it to the Home Stove Company. Such evidence might make out a case of failure to deliver as a carrier, but there is no direct evidence of any positive wrongful act on the part of appellant, inconsistent with plaintiff’s ownership, which would constitute a conversion. The signing of the Home Stove Company’s initials to the receipt by appellant’s conductor alone would not constitute such an act. The most, perhaps, that can be inferred from the evidence is that the iron was lost, and a carrier is not liable for a conversion where goods are merely lost. We do not think that the jury was justified in finding from the evidence that appellant converted the carload of iron, and therefore the court erred in overruling the motion of appellant Vandalia Railroad Company for a new trial, and for that error the judgment must be reversed as to appellant Vandalia Railroad Company. [258] 4. 5. [257] Appellee Upson Nut Company has attempted to make the Home Stove Company a party to the appeal, and has as [258] signed as error against it that the court erred in overruling the separate motion of the Upson Nut Company for a new trial. This error has been waived by failure to set out the motion for new trial in the U'pson Nut Company’s brief, under Rule 22 of this court. However, upon the evidence, the jury was fully justified in finding that the iron was never delivered to and received and accepted by the defendant Home Stove Company, and consequently it is not liable for its value. The judgment is affirmed as to the defendant Home Stove Company, and reversed as to appellant Vandalia Railroad Company. Adams, Lairy, Shea, J.L, Pelt, P. J., concur, Hottel, J., dissents.