Lakeside Packing Co. v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

The following opinion was filed April 7, 1925: Eschweiler, J. The defendant was notified promptly upon the arrival of the two carloads of peas that damages would be claimed. It had ample opportunity to, and did, inspect the entire shipment and knew of the disposition then made. The statement rendered and the complaint as verified in June, 1923, each included damages to the 104 bags shipped [356] to defendant’s claim department, and the 198 bags which at the first inspection had been sorted out as beyond question ruined. The prior correspondence and the verified complaint showed that any possible loss to the 775 bags which had been handled and treated at the warehouse and distributed to the farmers for planting in the spring of 1923 was not included in the demand then being made. Through oversight or mistake on the part of plaintiff, but with no element of bad faith, the possible damage to the 775 bags was not presented to plaintiff’s counsel at the time of the preparation of the complaint nor until shortly before the trial in January, 1924. While the amount as then specified in the complaint might be treated as an admission by plaintiff as to the maximum liability, it was not a conclusive and final one. The plaintiff had but one cause of action for the damage done to this entire shipment and could not have split up the same into two causes of action. In that situation the court was confronted with the alternative of either denying the plaintiff any relief whatsoever for the damage done to the 775 bags because a denial of the motion to amend would have been a denial of a remedy for such damage, or to allow the amendment granting the defendant ample opportunity to ascertain the facts with reference to the enlarged demand before compelling it to proceed to trial and allowing it substantial costs. Defendant had opportunity for six months to ascertain the facts and no showing was made to the court below nor here that it was foreclosed by reason of the lapse of time from any defense that it might have had to plaintiff’s claim or amended claim. Defendant evidently availed itself of the opportunity to ascertain the facts as to the 775 bags of peas and offered testimony on the trial as to the condition of such peas at the time they were delivered to some of the farmers for planting in the spring of 1923. The plaintiff was bound to minimize the loss so far as it reasonably could and no contention can be made that the plaintiff’s efforts to handle, preserve, and use the 775 bags in the spring of 1923 did not constitute a reasonable, proper, and good-faith attempt to so reduce the loss. There was [357] therefore no abuse of judicial discretion in granting the amendment. Defendant further contends that the court should have granted its motion, after the entry of judgment, to. make the Chicago & Northwestern Railway Company a party defendant and alone subject to execution. Under the verdict of the jury as approved by the trial court the entire damage arose by failure of the Chicago & Northwestern Railway Company, the connecting carrier, to make a reasonably prompt delivery after it had received the shipment from the defendant, the initial carrier. The defendant gave prompt notice to the Chicago & Northwestern Railway Company of defendant’s claim that the liability was that of the Northwestern Company rather than of the defendant, and allowed the situation in that regard, at least so far as the plaintiff was concerned, to remain that way until after trial, making no effort from the commencement of the action in June, 1923, and the formal tender of defense in January, 1924, or until December, 1924, to make the Chicago & Northwestern Railway Company a party defendant to the record. No abuse of discretion appears in the trial court’s refusing to delay enforcement of plaintiff’s established right to compensation for its loss while defendant attempts to collect from another carrier. Defendant having assumed by contract under our statute the liability that is attached by present law to an initial carrier, it has ample remedy against any subsequent carrier connected with the shipment and through whose actual negligence the harm is done. Sec. 192.58, Stats.; Fedyater v. C., M. & St. P. R. Co. 178 Wis. 362, 190 N. W. 193. We find no error in the record. By the Court. — Judgment and order affirmed. A motion for a rehearing was denied, with $25 costs, on June 22, 1925.