Adams Seed Co. v. Chi. Great W. R. Co.

• Decision Date: 10 December 1917
• Docket Number: No. 31195.,31195.
• Citation: 165 N.W. 367,181 Iowa 1052
• Parties: ADAMS SEED CO. v. CHICAGO GREAT WESTERN R. CO. ET AL.
• Court: Iowa Supreme Court

181 Iowa 1052

165 N.W. 367

ADAMS SEED CO.

v.CHICAGO GREAT WESTERN R. CO. ET AL.

No. 31195.

Supreme Court of Iowa.

Dec. 10, 1917.

Appeal from District Court, Howard County; A. N. Hobson, Judge.

Action to recover for loss of goods shipped over defendants' roads. The opinion states the facts. Judgment in the court below for the defendants. Plaintiff appeals. Affirmed.John McCook, of Cresco, for appellant.

Carr, Carr & Evans, of Des Moines, and Reed & Pergler, of Cresco, for Chicago Great Western R. Co. M. H. Boutelle, of Minneapolis, Minn., and E. A. Church, of Cresco, for Philadelphia & Reading Ry. Co. Miller & Wallingford, of Des Moines, and Reed & Pergler, of Cresco, for Wabash R. Co.

GAYNOR, C. J.

This action is brought to recover the value of certain wool delivered to the Chicago Great Western Railway Company for shipment, and claimed to have been lost or destroyed. The plaintiff makes defendants all the companies over whose lines the shipment passed, and asks judgment against each and all of them. The defendants are railway companies engaged in interstate commerce. The plaintiff is a copartnership doing business under the name of the Adams Seed Company, at Decorah, in this state.

The plaintiff alleges in the first count of its petition and in an amendment thereto that in the month of May, 1909, it delivered the wool in controversy to the Chicago Great Western Railway Company at McIntyre; that it was shipped by the several defendants named herein from McIntyre to the city of Philadelphia, and that it was received by said companies for shipment as aforesaid; that after its delivery to the Great Western Railway Company it was transported by said defendants, each in turn, until it reached its destination at Philadelphia. The allegation of the pleading is that each of said defendants, as common carriers, received said merchandise and took possession thereof for shipment in due course of transportation and that said shipment was consigned by the plaintiff to itself; that defendants carried said wool to its destination at Philadelphia, but failed to deliver the same to the plaintiff (the consignees), and failed to notify the plaintiff of its arrival at its destination; that the defendants have appropriated the same to themselves, or have retained the same, or have delivered it to some person unauthorized, or have lost or wasted it in some manner unknown to the plaintiff.

Plaintiff further alleges in an amendment to its petition that the shipment was delivered as above, and was carried by the Chicago Great Western, the initial carrier, to Des Moines, and there delivered by it to the Wabash Railway Company, and carried by it to some point unknown to the plaintiff, and delivered to the other defendant, the Philadelphia & Reading Railway Company; that the last-named company carried the goods to Philadelphia. The plaintiff further alleges that upon the arrival of the wool in question at Philadelphia the same was taken possession of by the defendant the Philadelphia & Reading Company, and there converted to the use of said company, to the loss and damage of the plaintiff in the sum claimed; that the wool arrived at Philadelphia about June, 1909; that none of the defendants herein over whose lines the goods were shipped notified the plaintiff of the arrival of said goods in Philadelphia.

In the second count of its petition the plaintiff makes all the allegations of the first count a part of the second count, and alleges that the wool in question was delivered to the Chicago Great Western Company to be carried by it to St. Louis; that both the Chicago Great Western and the Wabash were initial carriers; that they wholly failed to deliver it to the plaintiff at St. Louis or elsewhere, or to notify the plaintiff so that it could obtain the same; that they negligently and without authority from the plaintiff caused said wool to be reshipped from St. Louis to Philadelphia; that neither of said companies had authority to so do, and had no authority to deliver it to the Philadelphia & Reading Company, or to cause the wool to be moved over the lines of said company; that the Philadelphia & Reading Company had no authority from the plaintiff to move said wool, and that plaintiff had no knowledge that it exercised such authority; that all of said companies, defendants, acted jointly, and all were negligent in failing to notify plaintiff of the movements of the wool, and in failing to deliver the same to the plaintiff, and in failing to notify the plaintiff where it was so it could obtain possession.

In the third count plaintiff makes all the preceding allegations a part of this count, and alleges that none of the defendants had any authority to move the wool from St. Louis to Philadelphia, and that in moving it they acted negligently and without authority, and all were negligent in respect to the matters hereinbefore referred to.

In the fourth count of plaintiff's petition plaintiff alleges that upon the arrival of the wool in Philadelphia, it was taken possession of by the defendant the Philadelphia & Reading Railway Company and converted to its own use; that after the shipment reached St. Louis the plaintiff did not thereafter direct its movements, but that the wool was moved under the direction of the defendants the Chicago Great Western Railway Company or the Wabash Railroad, or both; that the Philadelphia & Reading Company was especially negligent in failing to advise plaintiff of the arrival of the wool, and in failing to deliver the same to the plaintiff, and failing to notify the plaintiff of the arrival of the wool, and in failing to give plaintiff an opportunity to get possession of it; that all the defendants had knowledge that plaintiff was the consignee, and of plaintiff's home address.

The defendants filed separate answers.

The Chicago, Great Western Railway Company answering admits: That on or about the 29th day of May, 1909, at the station of McIntyre on its line of road, it received a consignment of wool from the plaintiff consigned to the plaintiff at St. Louis, Mo.; that it carried said wool on its line to the city of Des Moines, and there delivered it to the Wabash Railway Company, its codefendant; that the Wabash Company carried it to St. Louis; that after it had delivered the wool to the Wabash this defendant received instructions from the plaintiff or one of its agents, to reconsignthe wool to Philadelphia; that it immediately issued instructions by telegram to the Wabash Company to reconsign the wool to Philadelphia; that said wool was thereupon reconsigned, and carried by the Wabash Railway Company and other carriers to Philadelphia; that immediately upon the arrival of the wool in Philadelphia there was a notice mailed to the Adams Seed Company, addressed “General Delivery, Philadelphia, Pa,” of the receipts of said goods, and that after the expiration of four days from the date of the mailing of the notice the Philadelphia & Reading Company moved and stored said wool in a public licensed warehouse in Philadelphia, where the same remained without being claimed by the plaintiff or any one for it until October, 1913, when the same was sold by said warehouse company to the account of plaintiff; that at the time the said Philadelphia & Reading Railway Company delivered the wool to the warehouse the liability of the railway company as a common carrier had ceased, and it was holding the same as warehouseman, and that, if there was any conversion by the Philadelphia & Reading Company in the delivering of said goods to the warehouse, it was while said company was acting as a warehouseman, and not as a common carrier; that plaintiff at the time had no office or agency in Philadelphia, and had not, previous to the arrival of the goods, advised any of the defendants of the manner or means in which it could be notified in said city of the arrival of said wool; that upon the arrival of said goods in Philadelphia they were unclaimed by the plaintiff or any one for it, and for this reason were placed in storage. This defendant further alleges that on or about September 4, 1912, and before the time they were sold by the storage company, the plaintiff made a claim against the Philadelphia & Reading Company on account of the loss of said wool, and subsequently brought suit against that defendant, jointly with the other defendants, alleging joint liability on account of the alleged loss; that by making said claim and instituting said suit against the Philadelphia & Reading Company, seeking to recover damages on account of the alleged loss at Philadelphia, plaintiff ratified the reconsignment from St. Louis, and by said claim and suit has elected to treat the shipment as one entire shipment from McIntyre to Philadelphia, and therefore is estopped from claiming anything against this defendant on account of the alleged wrongful reconsignment, and says that the wool was consigned to the Adams Seed Company at Philadelphia, but no street number was given.

The Wabash Railway Company makes practically the same answer as the other.

The answer of the Philadelphia & Reading Company we need not set out, for the reason that at the conclusion of all the testimony the plaintiff dismissed its claim as to the Philadelphia & Reading Company.

Thereupon, on motion of other defendants, the court directed a verdict for them, and a verdict being returned in accordance with the direction of the court, plaintiff's petition was dismissed, and plaintiff appeals.

There is practically no dispute in the evidence on any material fact. It will be noted from a reading of the several counts of plaintiff's petition that it seems to base its right to recover upon two separate and distinct grounds; one as for a conversion, by the Philadelphia & Reading Company, at Philadelphia;the other as for a conversion by the other defendants at St. Louis.

In the original petition the plaintiff says that the wool in question was shipped by the...