B. Presley Company v. Illinois Central Railroad Company
| Decision Date | 17 January 1913 |
| Docket Number | 17,816 - (150) |
| Citation | 139 N.W. 609,120 Minn. 295 |
| Parties | B. PRESLEY COMPANY v. ILLINOIS CENTRAL RAILROAD COMPANY |
| Court | Minnesota Supreme Court |
Action in the municipal court of St. Paul to recover $287.70 damages to a carload of strawberries alleged to have been negligently delayed in transportation, and because defendant did not exercise due care for the preservation of the berries while in transit. The answer alleged that the berries were accepted for transportation at a reduced rate under a bill of lading by the terms of which claims for damage or delay must be made in writing to the carrier within four months after delivery of the property; that the bill of lading was executed in the state of Louisiana and under the laws of that state is valid and binding upon the parties to the action; that plaintiff failed to make claim within the time and in accordance with the terms of the agreement; that the berries were transported and delivered to the Chicago, Milwaukee & St. Paul Railway Company at Dubuque, Iowa, in as good condition as when they were delivered to it for shipment, except for such changes in their condition as may have occurred by reason of matters beyond defendant's control. The case was tried before Finehout, J., and a jury which rendered a verdict in favor of plaintiff for the sum of $296.79. From an order denying plaintiff's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Affirmed.
Transportation of berries -- evidence.
Plaintiff's evidence showed that a shipment of strawberries was inspected at point of shipment by an association inspector. The shipper testified that he also inspected them, and that they were loaded in good condition and perfectly sound, though he personally inspected but one or two cases in each wagon load. Another witness testified to the general good condition of berries at point of shipment at that time; another that the damaged condition in which they arrived was due to heat. Defendant's witness testified solely from records that the car was kept properly iced. Held, the evidence sustained a finding that the damaged condition in which they arrived was due to negligent transportation.
Admission of evidence.
A witness gave testimony from an unverified memorandum, when objected to on that ground, only as to a matter not in controversy. Held no material error.
Book entry from temporary slips.
Plaintiff's manager testified that a certain book entry was a record kept in plaintiff's office, made at the time of the transaction, from temporary slips that are not preserved made by a clerk in the office in his presence, and that it was true and correct. Held sufficient, though he could not state what particular clerk made the entry.
Evidence admissible.
Evidence as to the customary time for unloading a car of damaged berries held not error.
Failure to present claim -- burden of proof.
The burden of proof is on the defendant to show that plaintiff failed to present its claim within the time provided by the bill of lading. Held that, as a matter of law, the proof in this case was not sufficient to sustain a finding that a claim was not so made.
Butler & Mitchell and John B. Sanborn, for appellant.
T. P. McNamara, for respondent.
This action is brought to recover damages from negligent transportation of half a carload of strawberries, shipped April 20, 1909, from Independence, Louisiana, to St. Paul. There was no delay in transportation, and the damages are claimed to have been caused by heat, due to insufficient icing of the cars. The jury found for plaintiff. Defendant appeals.
It is admitted that, when the berries arrived in St. Paul, they were moldy and soft. Appellant contends there is no evidence sufficient to sustain a finding that this condition was caused by negligent transportation. It is conceded that strawberries in sound condition may be safely transported from Independence to St. Paul. It follows that either the berries were unsound when shipped, or they were improperly carried. The verdict was necessarily a finding that they were sound when shipped, but were improperly carried.
We hold that the evidence sustains these findings: The berries were shipped by a Mr. Harpole, who bought them for respondent and superintended their loading. He testified that the berries were bought from growers by an association and inspected by the association inspector. He inspected them also, examining one or two cases from each wagon load. He stated positively that they were loaded in good condition and perfectly sound. Another witness, Mr. Terry, a fruit broker at New Orleans said the condition of fruit generally at Independence at that time was good. There is also evidence that the soft and moldy condition in which the berries arrived was due to heat. The evidence is sufficient to make out a case. Appellant offered no testimony as to the condition of the fruit when loaded. The only evidence submitted by appellant was as to the manner in which the car was transported and iced. This evidence tended to show that the berries were properly transported. It was, however, based entirely on appellant's records, and in no measure on the...
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