Banks v. Pennsylvania R. Co.
| Decision Date | 13 May 1910 |
| Docket Number | Nos. 16,512 - (58).,s. 16,512 - (58). |
| Parties | ORIN BANKS v. PENNSYLVANIA RAILROAD COMPANY.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
Action in the municipal court of Minneapolis by Orin Banks, doing business as A. M. Banks Sons, to recover $233.90 damages for defendant's negligence in transporting forty-five barrels of cranberries claimed to have been frozen in transit from Jersey City to Pittsburg. The answer alleged that in the bill of lading there was a written stipulation that neither defendant nor any carrier should be accountable for the weight, quantity or condition of the property shipped thereunder; that the plaintiff loaded the goods in the car, and, if any damage resulted, it was caused solely by plaintiff's negligence in loading; that the bill of lading provided: "No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto by causes beyond its control, or by leakage, breakage, chafing, loss in weight, changes in weather, heat, frost, wet or decay," and "claims for loss or damage must be made in writing to the agent at point of delivery promptly after arrival of the property, and if delayed for more than thirty days after the delivery thereof, no carrier hereunder shall be liable in any event;" and that no claim for damages had been made in writing to the agent before the expiration of thirty days after delivery of the property. The answer further alleged that defendant was a foreign corporation, organized under the laws of the state of Pennsylvania; that no part of its line of railroad extended within
the state of Minnesota, and it had at no time acquired or held property in Minnesota; that none of the transactions alleged occurred within the state of Minnesota; and that the court had no jurisdiction of the cause of action.
The reply alleged that if claim of loss was required to be made within any specified time, defendant waived compliance therewith in this, that on January 22, 1902, plaintiff prepared a statement showing the amount of loss sustained to the cranberries by reason of their being frozen and damaged, and attached thereto written statement of the sales and expenses in the disposition of the berries in Pittsburg, together with the original paid freight bill and certain other papers customarily attached to similar statements of loss, and presented the same to the freight claim agent of defendant, which papers were received by the freight claim agent, investigated on the merits, and declined for the reason, as it claimed, that it had been guilty of no negligence in handling the cranberries. Plaintiff further alleged that defendant voluntarily on March 9, 1906, in a general appearance served upon plaintiff's attorney a general demurrer to the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action.
The case was tried before Charles L. Smith, J., who made findings of fact and as conclusion of law ordered judgment in favor of plaintiff for the sum of $195.65. Defendant's motion for a new trial was denied. From the judgment entered pursuant to the findings, defendant appealed. Affirmed.
Savage & Purdy, for appellant.
George C. Stiles and H. R. Hewitt, for respondent.
Action brought in the municipal court of the city of Minneapolis to recover damages to forty-five barrels of cranberries, alleged to have been frozen by the negligence of the defendant while they were in transit over its railway lines from Jersey City to Pittsburg. It does not appear from the record how, if at all, the summons was served on the defendant; but it does show that the defendant appeared generally and answered to the merits without objection, except that it concluded its answer to the merits with allegations to the effect that the defendant was a foreign corporation domiciled in Pennsylvania, with no part of its line or other property in this state; that the defendant was not a resident of this state; that the alleged cause of action did not arise or accrue therein, and that the court has no jurisdiction thereof.
The cause was tried by the court without a jury, and findings of fact made to the effect following: The defendant during the times stated in the complaint was, and is, a foreign railway corporation having its principal place of business in Philadelphia, Pennsylvania. The plaintiff during such time was not, nor has he since been, a resident of the state of Minnesota. On December 13, 1901, the plaintiff, by and through a connecting carrier, delivered to the defendant at Jersey City forty-five barrels of cranberries, in good condition and free from frost, to be transported over the defendant's railway line to Pittsburg and there to be delivered to the plaintiff's consignee. The defendant accepted the cranberries, but negligently delayed their transportation, and negligently exposed them to the elements, whereby they became frozen, and thereby depreciated in their market value in the sum of $195.65. The plaintiff did not make any written claim for damages or loss on account of such shipment within thirty days next after the delivery of the cranberries to him at Pittsburg, as required by the terms of the written contract of the parties, the bill of lading. The defendant, however, upon receiving such claim, made and sent to it after the expiration of the thirty days, and thereafter investigating it upon the merits, declined to pay it, for the alleged reason that it was not responsible for the temperature and resulting damages.
Judgment was ordered and entered upon the findings for the plaintiff for the amount of his damages, with interest and costs, from which the defendant appealed.
1. The first contention of the defendant to be considered is that the law of the case was settled in favor of the defendant upon a former appeal herein by it from an order denying a new trial, which was reversed and a new trial granted, pursuant to rule No. 14 of this court, for the failure of the respondent to appear or to file a brief.
It was held in Schleuder v. Corey, 30 Minn. 501, 16 N. W. 401 that where, upon appeal from an order denying a motion for a new trial, the order was affirmed under rule No. 14 for failure of appellant to serve a paper book and brief, all questions which might have been raised on the appeal were res adjudicata and could not be considered on an appeal from the judgment. The reason for this doctrine is quite obvious. An appellant cannot, except by leave of court or consent of the respondent, avoid a decision on the merits; hence the failure of the appellant to assign errors and serve his brief containing the points and authorities upon which he relies for a reversal is by virtue of the rule a waiver of all errors, at the election of the respondent giving him a right to a judgment finally disposing of all matters involved in the appeal. Any other construction of the rule would enable the appellant, by his neglect to comply with the rule, to do that which he had no right to do — to deprive the respondent of his right to a speedy judgment on the merits by holding up the case pending the appeal from the order without a decision on the merits, and then, when the judgment is finally entered, appeal from it at any time within six months.
Where, however, an appeal from an order denying a motion for a new trial is dismissed, it does not prevent the appellant from raising any question on appeal from the judgment which he could have raised if the appeal from the order had never been taken. The dismissal of an appeal leaves no basis for a decision by this court upon the merits, for the dismissal takes the case out of court. Adamson v. Sundby, 51 Minn. 460, 53 N. W. 761.
The question as to the effect of a reversal, on motion of appellant, for failure of the respondent to serve and file his brief, has never been directly passed upon by this court. It is true that, upon the reversal on its merits of any order denying a motion for a new trial, all matters passed upon by the appellate court as the basis of its judgment of reversal are res adjudicata; but this court has never held that all other questions raised by the appellant's assignments of error were res adjudicata in his favor. Any such rule would lead in many cases to flagrant injustice. The reason for the rule as to the effect of an affirmance does not apply to a reversal; for the relation of the appellant to a case in this court is materially different from that of the respondent. The presumption is that the order or judgment appealed from is correct, and the burden is on the appellant to show error. If none is shown, an affirmance follows, except in the exceptional case provided for by the rule, which permits the appellant, if he so elects, to apply for a reversal, without any showing of error, for the failure of the respondent to serve and file his brief. It is for this reason only that the reversal follows. We accordingly hold that a reversal of an order denying a motion for a new trial, and granting it for failure of respondent to serve and file a brief, is not res...
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