William A. Duncan v. Great Northern Railway Company, a Corporation

Decision Date27 November 1908
CourtNorth Dakota Supreme Court

Appeal from District Court, Rolette County; Cowan, J.

Action by William A. Duncan against the Great Northern Railway Company. Judgment for plaintiff. Defendant appeals.

Affirmed.

A corporation cannot complain of a law in force where its franchise is granted. Bohannan v. Hammond, 42 Cal. 227; Jackson v. Sac. V. R. Co., 23 Cal. 268; Thomas v. Ship Morning Glory, 13 La.Ann. 269, 71 Am. Dec. 509; Gage v. Tittell, 9 Allen. 299; Christenson v. Am. Express Co., 2 Am. St. Rep. 122; Powell v. Mills, 64 Am. Dec. 158; Davis v. Wabash Ry. Co., 1 S.W. 327; Woolf v. Am. Express Co., 97 Am. Dec. 406; Moses v. Norris, 4 N.H. 304; Gordon v. Little, 11 Am. Dec. 632; Klauber v. Am. Expr. Co., 21 Wis. 21, 91 Am. Dec. 452; Hooper v. Wells, 27 Cal. 11, 85 Am. Dec. 211; Costigan v. Michael Transp. Co., 33 Mo.App. 269; Porter v. Chicago Ry. Co., 71 Am. Dec. 286; Parker v. Flagg, 45 Am. Dec. 101; Miller v. Steam Co., 10 N.Y. 431; Schieffelin v. Harvey, 6 Johns 170; Rixford v. Smith, 13 Am. St. Rep. 42.

SPALDING, J. MORGAN, C. J., concurs, FISK, J. (concurring specially).

OPINION

SPALDING, J.

This is an appeal from an order denying a motion for a new trial made by the judge of the district court for and within Rolette county. Plaintiff brought this action to recover for the loss of 9,385 pounds of flax shipped by him over defendant's railway line from Rolla, N.D., to Duluth, Minn. The defendant denied the allegations of the complaint, and alleged that the loss occurred wholly through the negligence of the plaintiff in not properly loading the car, and in not properly securing and fastening the doors thereof, and that defendant was in no way to blame therefor. A verdict was directed for the plaintiff.

No question is raised as to the amount of flax lost, and the evidence does not disclose any special contract limiting in any manner the liability of the defendant. The evidence shows that the plaintiff was a grain buyer at Rolla, and had been in the grain business for some years, and was accustomed to loading cars and familiar with the kind of doors furnished by defendant for insertion in the car in which this flax was shipped. He, with the assistance of others who were likewise familiar with the shipping of grain and flax, loaded the car on defendant's track. The defendants furnished doors to be placed on the inside of the outside sliding doors, as is customary in the shipment of grain. These inside doors were fitted with a small door in the center, which opened outward and upward on hinges at the top, and were used for unloading purposes, and were fitted by defendant with a locking device. The plaintiff inserted these inside doors, and the doors and car were coopered; that is, strips of cheese cloth were nailed over the cracks at the bottom and sides of the doors and whereever there were cracks through which flax could escape. There is no evidence that the car was not properly coopered, except that the inspector's records at Duluth show that one of these small doors had no cooperage at the bottom when it arrived at Duluth. This is, however, not important, for the reason that, as will appear later, after the door burst open in transit, it was closed by the train conductor without recoopering, and it could not have come open without destroying the cooperage placed upon it by plaintiff. The plaintiff and witnesses who assisted him in loading the car all testified fully and explicitly that they fastened these small doors with certain irons furnished by the railroad company for that purpose, and that they were properly closed and fastened. The outside doors of the car were closed and sealed by the agent of defendant. The car was picked up by a regular freight train at Rolla and started on its way. While the train was standing at Perth, the first station south of Rolla, a bystander noticed flax running under the outside door on one side of the car, and reported it to the conductor, who set the car out, and found one of the small hinge doors above referred to open, by swinging out from the bottom, and the flax leaking. The conductor closed the door and stopped the leak, gathered up such flax as he could gather, and replaced it in the car, which was picked up a day or two later and transported to Duluth. Subsequently the leak was traced along the track to a point some distance north of Perth. The fastenings to this door were such as are usual for fastening the kind of inner door used in this car.

Appellant only discusses two questions: First, that section 5690, Revised Codes 1905, is unconstitutional, because it fails to include, among the exceptions for relieving it from liability, loss occasioned by the act of the shipper or owner of the goods. Second, that if the law is constitutional, notwithstanding such omission, there was sufficient evidence that the loss of the grain was caused by plaintiff's negligence to entitle it to have the question submitted to a jury.

Section 5690, supra, reads: "Unless the consignor accompanies the freight and retains exclusive control thereof, an inland common carrier of property is liable from the time that he accepts until he relieves himself from liability pursuant to sections 5638 to 5641, for the loss or injury thereof from any cause whatever, except; (1) An inherent defect, vice, or weakness or a spontaneous action of the property itself; (2) the act of the public enemy of the United States or of this state; (3) the act of the law; or (4) any irresistible superhuman cause." This section is in the main an enactment of the common law making common carriers insurers of property intrusted to them for transportation. In so far as it varies from the common law it does so in favor of the carrier. Many common-law authorities include the act of the shipper as among the exceptions relieving the carrier from liability, but even such authorities do not hold that all acts of every nature done by the shipper relieve the carrier. The liability of the carrier begins when he receives and accepts the goods, and continues until after the arrival at destination. The only defenses which the carrier can interpose, where property is lost in transit, are those named as exceptions relieving him from his liability as an insurer, except in cases where there is a special contract. This court cannot read into the statute an exception which existed at common law. State v. Smith, 2 N.D. 515, 52 N.W. 320. It will be presumed, by reason of the omission of the act of the shipper from the exceptions, that the legislature intended to still hold the carrier liable as against such actions as the principles of justice and fundamental law do not relieve it from. The difficulty lies in determining the line between those acts of the shipper which relieve the carrier from liability and those which by reason of the evident purpose of the legislature do not relieve it. The authorities on this subject are few in number. It is, however, clear that acts of fraud, misrepresentation, or concealment by the shipper relieve the carrier. Fraud invalidates all contracts, and concealment or misrepresentation is fraud. Where the shipper interferes with the property after accepted by the railway company, and the loss is occasioned by such interference, it may well be contended that the carrier is also relieved, and we are disposed to the belief that, when the shipper assumes the responsibility of loading the car and seeing that it is properly prepared for the transportation of the particular article which he is loading, he assumes responsibility for all defects in package and loading which are necessarily invisible to the agent of the carrier who accepts the freight, or which he cannot discern by ordinary observation, or such inspection as he can readily make. In this case there is no evidence showing that the car was not properly coopered.

The question is whether it was the duty of the carrier, under the circumstances, to see that the small door referred to was properly fastened, and, if it did not do so, whether it is liable. As stated, the agent accepted the car and its contents for transportation and he himself closed and sealed the outside doors. The devices for fastening the small doors were open to his inspection when he closed the outside doors, and were where he could not avoid seeing them if he looked at all or even used ordinary care or made the slightest effort to ascertain whether they were properly fastened. If he did not do so, or, doing so, failed to call the defect to the attention of the shipper or to remedy it himself, we think the fact, if it were a fact, that they were not properly fastened when he accepted the freight, under the circumstances of this case, does not relieve the defendant from its obligation as an insurer. The terms of the statute are very broad. It reads: "From any cause whatever."

The supreme...

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