Barry v. Los Angeles & S.L.R. Co.

• Decision Date: 01 April 1920
• Docket Number: 3426
• Citation: 189 P. 70,56 Utah 69
• Parties: BARRY et al. v. LOS ANGELES & S. L. R. CO. et al
• Court: Utah Supreme Court

189 P. 70

56 Utah 69

BARRY et al. v. LOS ANGELES & S. L. R. CO. et al

No. 3426

Supreme Court of Utah

April 1, 1920

Appeal from District Court, Second District, Weber County; A. W Agee, Judge.

Action by C. A. Barry and others against the Los Angeles & Salt Lake Railroad Company and others. Judgment for plaintiffs, and defendants appeal.

AFFIRMED.

Geo. H Smith, J. v. Lyle, and C. B. Diehl, all of Salt Lake City and C. R. Hollingsworth, of Ogden, for appellants.

R. S. Farnsworth, of Ogden, for respondents.

WEBER, J. CORFMAN, C. J., and FRICK, GIDEON, and THURMAN, JJ., concur.

OPINION

WEBER, J.

The second amended complaint is, in substance, that plaintiffs are partners; that defendants are railroad corporations and common carriers engaged, among other things, in transporting freight from Provo, Utah, to Salt Lake City over the Los Angeles & Salt Lake Railroad Company's line, thence to Ogden, Utah, by the Oregon Short Line Railroad Company, and from Ogden, through Wyoming, to Denver, Colo., by the Union Pacific Railroad Company; that on September 7, 1916, plaintiffs delivered to the Los Angeles & Salt Lake Railroad Company at Provo, Utah, consigned to plaintiffs at Denver, Colo., 945 crates of prunes, valued at $ 945, which were then and there loaded into a refrigerator car provided by said defendant; that such prunes were in good condition when accepted for shipment; that the defendants negligently permitted the drain pipes from the ice bunkers in said refrigerator car to become clogged and obstructed, thereby causing the water from the melting ice to flow onto and damage the prunes; that the prunes were thereby deteriorated in value and because of their damaged condition the marked for said prunes was lost at the place of destination, and plaintiffs were damaged in the sum of $ 500; that within ninety days plaintiffs presented their claim for damages to the Union Pacific Railroad Company; and that payment of the claim was refused.

In a joint answer the defendants admitted their corporate existence; that they were common carriers; admitted that the plaintiffs on September 8, 1916, delivered to the Los Angeles & Salt Lake Railroad Company a shipment of prunes, and affirmatively alleged that whatever damage was caused to the prunes was caused by the delays of the plaintiffs, and by the inherent nature or quality or defects of the property itself. Copy of the bill of lading is attached to the answer.

There was evidence tending to support all the allegations of the complaint. While not free from conflict, there was enough to support the judgment for $ 500 in favor of plaintiffs, and from which defendants appeal. It was shown that the prunes were received in "No. 1 merchantable condition" and were worth at Provo, Utah, eighty-seven and one-half cents per crate. The car was equipped with bunkers filled with ice, the ice being put into the car from the top. There were about five tons of ice. When the prunes were loaded the floor of the car was dry. The shipment reached Denver September 11, 1916, and Mr. Barry of plaintiffs' firm, was notified of the arrival September 13, 1916, at which time he was informed that the car had arrived with water in it. He then turned the car over to Geo. H. Knifton, with instructions to sell the prunes at best market price. The prunes were sold to a Pueblo, Colo., firm for $ 617.60. The carload of prunes was shipped to Pueblo, because no offer could be obtained from Denver dealers; there being no market in Denver for prunes damaged as these were. On September 12, 13, and 14 such prunes, in good condition, in carload lots, were worth $ 1.30 per crate at Denver. A fruit car inspector examined the carload of prunes at Denver on September 13, 1916. He found the car floor covered with water, the prunes wet and damp, and the ice bunkers stopped with cinders, which was the cause of the water being in the car. The car was unsealed or opened in the presence of this witness. When opened two or three sixty-gallon barrels of water ran out of the car; the floor having been covered from one end to the other. The water was up to the crates--four or five inches deep in the car. Evidence was introduced showing the deleterious effect of moisture on prunes, and that these prunes were damaged. The testimony introduced by defendants was in sharp conflict with the statements made by some of the plaintiffs' witnesses.

Many errors are assigned by defendants (hereinafter called appellants), but we shall notice only those deemed material, or which might possibly be conceived to be prejudicial to the rights of appellants.

The court instructed the jury that if they found the prunes were damaged when they arrived at Denver they should return a verdict for plaintiffs, unless they found from a preponderance of all the evidence in the case that such damage was caused by the inherent nature of the prunes, and not by any negligence upon the part of the defendants or any of them. It is insisted that this instruction was "too narrow" in its scope, and that the court should also have informed the jury that the appellants would be excused from liability for damage because of the act of God, the public enemy, or process of law. The court was right in not instructing as requested. To instruct about the act of God, or the public enemy, or process of law, would have been to invite the jury to wander in the realms of imagination, and, if possible conjure up a defense within neither the pleadings nor the proof.

Appellants claim that the measure of damages should be based on the Pueblo market value. Evidence was offered by appellants to show what the prunes sold for at Pueblo. In the first place the evidence offered and excluded an alleged record of sales of these prunes by King & Co., the Pueblo commission firm, was incompetent; and it was neither material nor relevant. The prunes had been shipped by the respondents to themselves as consignees at Denver. Respondents' agent sold them at Denver to the Pueblo firm, who shipped them to Pueblo from Denver, and the prunes were resold in small lots, not in carload lots. Respondents were selling and had sold in carload lots, buying them in one place-and shipping to themselves in another. The evidence shows the respondents' agent sold them for all he could get at Denver. What King & Co., to whom respondents' agent sold the prunes, obtained for them can be and is of no concern in this case. If appellants' contention be sound, they might with equal force say that what the ultimate consumer paid should be regarded as the criterion, and that if any of those prunes sold at a retail stand at Pueblo at three for a dime the respondents should account for what their vendee's customers received for the prunes, and not what was received for the salvaged car lot at Denver by the respondents. The price taken is the wholesale or carlot price at which respondents sold, not the retail price at which the prunes may have sold. 10 C. J. 396, 397; Texas & P. Ry. Co. v. Payne, 15 Tex. Civ. App. 58, 38 S.W. 366; St. L., S. F. & T. Ry. Co. v. Adams, 55 Tex. Civ. App. 245, 118 S.W. 1155. Denver, not Pueblo, was the destination of the shipment of prunes. It was in Denver where they were found in damaged condition and where respondents' agent sold them. It is the market value at the place of destination which is the criterion of value by which the amount of damages for injury to the goods is to be determined. 10 C. J. 385-396; Bingham v. Railroad Co., 39 Utah 400, 117 P. 606; McCaull-Dinsmore Co. v. C., M. & St. P. Ry., 260 F. 835,--C. C. A.--.

The court instructed the jury that if they found for plaintiffs they might return a verdict for a sum equal to the difference in the market value of the prunes in their damaged condition at Denver, Colo., at the time they arrived there and were ready for delivery to respondents, and their market value at the same time and place if they had not been damaged. In the same instruction the jury were informed that in determining the market value and the depreciation of the market value of the prunes in question, if any, by reason of their being in a damaged condition, if they found they were in a damaged condition, they might consider all of the facts and circumstances proven on the trial concerning their condition when received by the railroad company, and also when they arrived at Denver and were ready for delivery to the plaintiffs or their agent, and also what efforts, if any, were made by plaintiffs and their agent to market and sell the prunes after their arrival at Denver, and the price at which the same were sold. Criticizing the instruction to which we have referred, appellants say:

"The court assumes that there was a market value for prunes in a damaged condition at Denver, Colo., at the time the shipment arrived there, which market value we contend was not established. The court also most emphatically says to the jury in this instruction that the prunes were damaged, which, if it were true, would be a fact for the jury to determine.

The question of market value was submitted to the jury, and was a question for them to determine. The evidence indicates that prunes in a damaged condition in carload lots were absolutely unsalable at Denver, and that respondents' agent made a good sale when he sold the same to the Pueblo firm. It is difficult to conceive how the jury could have been misled by this instruction.

The condition of the prunes upon their arrival at Denver was distinctly left to the jury. That the words "if you find they were in a damaged condition," were not repeated as they might have been would not mislead the jury, and could not in the light of the instructions as a whole, and in view of all the evidence,...