Beck v. Chi., M. & St. P. Ry. Co.

• Decision Date: 30 August 1917
• Docket Number: No. 4128.,4128.
• Citation: 39 S.D. 297,164 N.W. 74
• Parties: BECK v. CHICAGO, M. & ST. P. RY. CO.
• Court: South Dakota Supreme Court

39 S.D. 297

164 N.W. 74

BECK

v.CHICAGO, M. & ST. P. RY. CO.

No. 4128.

Supreme Court of South Dakota.

Aug. 30, 1917.

Appeal from Circuit Court, Lake County; Joseph W. Jones, Judge.

Action by C. O. Beck against the Chicago, Milwaukee & St. Paul Railway Company. From judgment for plaintiff and an order denying new trial, defendant appeals. Judgment and order affirmed.William G. Porter and Ed. L. Grantham, both of Aberdeen, and George R. Farmer, of Madison, for appellant.

A. W. Sponholz and Chas. J. Porter, both of Madison, for respondent.

GATES, P. J.

On October 13, 1913, plaintiff shipped a carload of potatoes of the value of $298.46, to wit, 55 cents a bushel, from Winfred, S. D., to Randolph, Neb., over the defendant's line as far as Sioux City, Iowa, and thence over the line of the Chicago, St. Paul, Minneapolis & Omaha Railway Company. The shipment reached Randolph on October 20th. On that day one Larson the virtual, but not the nominal, consignee inspected the potatoes and refused to accept them for the reason that they were so badly frozen as to be unfit and unsalable. Plaintiff, the nominal consignee, was immediately advised of that fact, and he declined to have anything further to do with them. On October 24, 1913, the latter carrier transported the car back to Sioux City, and a commission merchant sold the potatoes on that day to one Crom of Kingsley, Iowa, for $367.81, or about 67 1/2 cents a bushel. That night the car was consumed by fire. Thereupon the plaintiff brought this action against the defendant for the full value of the potatoes, and secured judgment for $298.46. From the judgment and an order denying a new trial defendant appeals.

[1] Several matters are urged in appellant's brief, but the principal one meriting discussion is the one assigning error upon the refusal of the trial court to instruct the jury that plaintiff had no right to abandon the shipment. It seems to be generally, although not uniformly, held that in case of partial injury it is the duty of the consignee to accept the shipment and to rely upon an action against the carrier for the damage. Hutchinson, Carriers (3d Ed.) § 1365; Michie, Carriers, § 868; Moore, Carriers (2d Ed.) § 31; Parsons v. U. S. Exp. Co., 144 Iowa, 745, 123 N. W. 776, 25 L. R. A. (N. S.) 842, and note. But there is a limitation to that rule, concisely stated in 10 Corp. Jur. 404, viz.:

“Where the goods are so materially damaged as to destroy their value, the consignee may of course refuse to accept and sue for the full value, since in that event nothing that the consignee might do would lessen the loss and so diminish the carrier's liability.”

The evidence in this case was conflicting. The Sioux City merchant testified that there was a “trifle appearance of frost,” and that the potatoes were worth the amount of the sale to Crom. Crom testified that not to exceed 25 bushels, or less than 5 per cent., were frozen. On the contrary, four witnesses at Randolph gave testimony that on October 20th the potatoes were badly frozen. One witness testified that from one-third to one-half were frozen hard. The virtual consignee testified that he refused the potatoes because they were badly frozen, and he could not use them in the condition they were in; that 25 cents a bushel was a reasonable value of them in that condition. Another witness said that more than one-half were frozen so hard as to be unsalable. Another witness testified that about 50 per cent. were...