Tradewell v. Chicago & Northwestern Railway Co.

KebwiN, J. A preliminary question arises upon the face of the findings, as will appear from the statement of facts, which should be noticed. The ninth finding states that the “Defendant' has not received any of the articles shipped to him.” This is obviously a clerical error and should read, “Plaintiff has not received any of the articles shipped to him.” The error is apparent from the fact that the other findings find that the defendant did receive the goods, and the answer admits it'. 1. It is insisted that the court erred in finding that the defendant failed to deliver the missing goods. It is said that [263] the rule of liability of carriers as insurers is so strict and severe that the plaintiff should be held to a strict line of proof in establishing that the loss occurred during the custody of the carrier. It is also argued by counsel for appellant that the proof does not establish that the contents of the box may not have been taken from it while it was awaiting shipment. The answer admits the receipt of the box of goods by the defendant as a connecting* carrier. The evidence shows that the box of goods was delivered for carriage to the initial carrier. The proof is sufficient to show that the plaintiff made a prima facie case of failure of defendant to deliver the goods. Laughlin v. C. & N. W. R. Co. 28 Wis. 204. There is evidence that the box in question was delivered at the residence of plaintiff during the afternoon in the absence of Mrs. Tradewell; that she found it there in the evening; she saw it standing on end, pushed it over, and it seemed light; there was a hole in the box, but not large enough so the contents could have been taken out through it; that there were no other visible external signs of interference with the box, except that when it was opened it was found that' the boards on the top of the box had been broken and the nails did not hold fast, which indicated it had been opened. Mrs. Trade-well testified to the articles lost as found by the court below. The defendant offered no evidence. We think the evidence sufficient to support the finding that defendant failed to deliver the missing goods. 2. It is argued that there was not sufficient proof of ownership or privity with the contract of shipment. The plaintiff, consignee, is the husband of the person who shipped the goods,-and the bill of lading names him as consignee. Counsel for appellant says that the undisputed evidence is that Mrs. Tradewell is the owner of the property. Mrs. Tradewell testified that the plaintiff, her husband, was the owner of the goods. Moreover, no issue of ownership was raised by the answer and the complaint alleges that the plaintiff is the con [264] signee. The general rule is that the right of action for damages is prima facie in the consignee. 3 Hutchinson, Carriers, (3d ed.) sec. 1311, p. 1558. There is no proof in the present case to overcome the prima facie case made by the pleadings and the evidence. The wife of plaintiff consigned the goods to him and admitted on the trial that they belonged to him, and the court found for plaintiff upon sufficient evidence on this point. 3. It is further assigned as error that the wife of plaintiff was permitted to testify in his favor without proof of agency. The established facts showed the agency of the plaintiff. She was in possession of the goods and acted as agent of plaintiff in shipping them. The evidence shows that' she acted as agent of plaintiff, not alone in shipping the goods to him as consignee, but in purchasing the material and making up the garments included in the articles lost. The evidence in this case is ample to raise a presumption that in the acts performed by the plaintiff’s wife respecting the shipment of the goods she acted as his agent. Savage v. Davis, 18 Wis. 608; O'Conner v. Hartford F. Ins. Co. 31 Wis. 160; Pickering v. Pickering, 6 N. H. 120. 4. It is contended that the court erred in not' holding that liability should be limited to the sum of $10 under the release valuation clause contained in the bill of lading. It contained the following: “Rel. val. $10.” Appellant relies upon Ullman v. C. & N. W. R. Co. 112 Wis. 150, 88 N. W. 41; Hart v. Pennsylvania R. Co. 112 U. S. 331, 5 Sup. Ct. 151. But the facts in this case clearly take it out of the rule of the above cases. Counsel for appellant say, “It is conceded that both the consignee and Mrs. Tradewell understood that this limited the value to $10.” We do not so understand the record. The defendant introduced no evidence upon this point. The evidence is that as soon as the agent of plaintiff discovered the valuation clause written in the bill of lading she immediately objected to it and sent her brother to the depot to [265] bave the valuation placed at $100. When her brother at her request went to the agent of defendant to have the valuation changed, the agent said it was unnecessary. So it cannot be said upon the evidence that there was an agreement between plaintiff and defendant that the valuation should be limited. Abrams v. M., L. S. & W. R. Co. 87 Wis. 485, 58 N. W. 780; Judson v. Western R. Corp. 6 Allen, 486. 5. It is also assigned as error that the court found the valne of the property lost $85, for the reasons, first, that the testimony of the plaintiff’s wife should not have been received, and second, that the values are too high. The wife of plaintiff having charge of the shipment as agent of her husband, and a part of her duty in that regard being to agree upon valne with the carrier, she was competent to testify as to value of the articles shipped. It is said that the value put upon the goods by Mrs. Tradewell is too high, but no evidence was offered by defendant, so we think the finding on this point is supported by the evidence. It was suggested upon the argument that the late federal act known as the Carmack amendment' to the Hepburn bill limits right of action to the initial carrier. The rule has been laid down in this court that recovery may be had against' the last carrier. Stolze v. A. A. R. Co. 148 Wis. 205, 134 N. W. 316; Laughlin v. C. & N. W. R. Co. 28 Wis. 204. We think the rule established by this court, that action may be maintained against the last carrier, is still in force and not abrogated by the Carmack amendment. The federal act provides : “That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no [266] contract, receipt, rule, or regulation shall exempt sucb common carrier, railroad, or transportation company from tbe liability hereby imposed: Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law. “That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.” 34 U. S. Stats, at Large, 595, ch. 3591; Atlantic C. L. R. Co. v. Riverside Mills, 219 U. S. 186, 31 Sup. Ct. 164. We find no prejudicial error in the record. By the Court. — The judgment is affirmed. The following opinion was filed June 17, 1912: