Lewellyn v. Pere Marquette Railroad

Mr. Justice Gridley delivered the opinion of the court. Under the stipulated facts of this case it appears that on January 4,1911, at Scottville, Michigan, the defendant company received from the plaintiff for shipment a carload of potatoes in good condition and issued and delivered to plaintiff a hill of lading showing that the potatoes were consigned to plaintiff, as consignee, at Sedalia, Missouri. By this act the defendant company impliedly agreed to carry the potatoes safely and deliver the same at said destination within a reasonable time. Chicago & A. R. Co. v. Kirby, 225 U. S. 155, 164. It further appears that prior to the arrival of the potatoes at said destination, and while the same were en route from Chicago, Illinois, and in the possession of the connecting carrier, Illinois Central Railroad Company (which last named company was the agent of the defendant company in transporting the potatoes part of the way, viz., from Chicago to said destination Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 205), plaintiff instructed the defendant company to change the destination of the potatoes to Houston, Texas, plaintiff to remain the consignee and Hencke & Pillott to be notified. In our opinion plaintiff was entitled to have these instructions carried out. And we Bunk that the fact that, at the time said instructions as to the change of destination were given to the defendant company, the potatoes were not then in the actual possession of the defendant company but in the possession of the connecting carrier, I. C. Co., makes no difference. They had not yet arrived at Sedalia, Missouri, and were still in the possession of the agent of the defendant company. It further appears from the stipulated statement of facts that one day prior to the arrival of the potatoes at Sedalia the plaintiff surrendered the original bill of lading to the defendant company and received “in lieu thereof,” at Scottville, Michigan, the new bill of lading above described. By this transaction a change in the destination of the potatoes was made by the parties by mutual consent, and by it the defendant company, as a common carrier, agreed to carry the potatoes safely to the new destination, Houston, Texas, within a reasonable time. Mahaffey v. Wisconsin Cent. Ry. Co., 147 Ill. App. 43, 47. It is contended by counsel for the defendant company that the agent of the defendant company at Scott-ville, Michigan, was without authority to issue the new bill of lading and that there was no consideration for its issuance. Under the facts of this case and under the law we think these contentions are without merit. c It further appears from the stipulated statement of facts that “send defendant promptly notified” the I. O. Co. of the “diversion order and change of destination,” but that, because of the “unreasonable and negligent delay” of the I. C. Co. in not moving the potatoes from Sedalia, and in not delivering them to the M. K. & T. B. Co. to be transported to Houston, until February 10th (although they had arrived in Sedalia on January 11th), the potatoes did not arrive at Houston until February 16th; that when they did arrive they were in bad condition; that because of this condition and said delay they were rejected and that on account of said delay in transportation plaintiff lost the sum of $163.82. Section 20 of the Interstate Commerce Act, as amended by the Act of January 29, 1906, commonly known as the Carmack Amendment (34 U. S. Stat. at Large, 595), provides in part as follows: “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 contract, receipt, rule or regulation shall exempt such common carrier, railroad, or transportation company from the 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.” We are of the opinion that, under the stipulated facts of this case, the finding of the court below is contrary to the law and the evidence, and that the court erred in entering judgment in favor of the defendant company. Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186; Adams Express Co. v. Croninger, 226 U. S. 491; Fry v. Southern Pac. Co., 247 Ill. 564. We think the trial court should have found the issues in favor of the plaintiff and entered judgment against the defendant company in the sum of $163.82. This case was one of the fourth class tried in the Municipal Court, without a jury, upon a stipulation as to the facts. The stipulation contained all the evidence offered or heard by the court, and by it the parties agreed, in addition to certain evidentiary facts, to certain ultimate or substantive facts upon which, in our opinion, the determination of the cause depended. The amount of plaintiff’s loss occasioned by unreasonable and negligent delay in the transportation of the potatoes was admitted to he $163.82. The finding of the court was a general finding of the issues against the plaintiff. We think that the finding was the result of a misconception by the trial court of the law applicable to the admitted facts. And we think that upon the admitted facts we are authorized, not only to reverse the judgment of the court below, but to here enter judgment in the sum of $163.82 in favor of the plaintiff and against the defendant company. Manistee Lumber Co. v. Union Nat. Bank of Chicago, 143 Ill. 490, 504; Osgood v. Skinner, 186 Ill. 491, 495; City of Spring Valley v. Spring Valley Coal Co., 173 Ill. 497, 506. By section 120 of the Practice Act (J. & A. 8657), it is made the duty of this court, upon the final determination of any cause as the result wholly or in part of the finding of the facts different from the finding of the court below, to recite in its final order or judgment the facts as found. And it has been held that this rule is applicable where there is “a stipulation as to the evidentiary or probative facts in the case.” National Linseed Oil Co. v. Heath & Milligan Co., 191 Ill. 75, 78; Seeberger v. McCormick, 178 Ill. 404, 411. In this case we do not find the ultimate or substantive facts different from those contained in the stipulation of the parties, and we are not required to recite in our final order or judgment our conclusions of 1cm on the ultimate facts. American Trust & Savings Bank v. Lantry Contracting Co., 257 Ill. 271, 272; Nonotuck Silk Co. v. Adams Express Co., 256 Ill. 66, 68. In National Linseed Oil Co. v. Heath & Milligan Co., supra, it is said: “It is undoubtedly true that where the parties agree to the ultimate fact or facts in a case and submit it to a trial court for decision, the question before that court and on appeal to the Appellate Court, and finally to this court, presents only a question or questions of law; and in such case, if the Appellate Court reverses the judgment of the trial court and enters a final judgment, no recital of the facts found by it in its judgment is necessary upon appeal or writ of error to this court.” We conclude that in this case no recital of the ultimate facts as found by us need be incorporated in our judgment order. The judgment of the Municipal Court is reversed and judgment is entered in this court in favor of P. E. Lewellyn and against the Pere Marquette Bailroad Company for the sum of $163.82. Judgment reversed cmd judgment here.