Benjamin Light & Co. v. American Railway Express Co.
| Decision Date | 12 May 1922 |
| Docket Number | 22,716 |
| Citation | 188 N.W. 219,152 Minn. 154 |
| Parties | BENJAMIN LIGHT & COMPANY v. AMERICAN RAILWAY EXPRESS COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover $1,995 for loss of a shipment of skins by defendant carrier. The case was tried before Bardwell, J., and a jury which returned a verdict for $2,139.90. From an order denying its motion for a new trial, defendant appealed. Affirmed.
Principal and agent -- verdict sustained by evidence.
1. Evidence tending to show that, in response to a call by telephone received at defendant's office, a man came to plaintiff's store, said "express," took two package of valuable skins and placed them in a wagon lettered "American Express" after writing his initials upon a receipt for the skins in a book furnished by the defendant to plaintiff, will support a verdict that the man was defendant's agent and had authority to receive the skins as such agent.
Carrier -- notice of loss -- error of 3 days in date of delivery.
2. The purpose of notice of loss of goods delivered to a common carrier for transportation is to afford the carrier an opportunity to investigate claims before they become stale. A discrepancy of three days in the date of delivery specified in the notice and the date specified in the complaint and established by the evidence is not fatal to the right of recovery.
Refusal to give requested instructions.
3. If there is nothing of substance in requests for special instructions which is not fairly covered by the general charge, there is no error in refusing to give the instructions, although they may state the law correctly.
Gilger & Babcock, for appellant.
George B. Leonard, for respondent.
This was an action to recover the value of 285 skunk skins alleged to have been lost after they were delivered by plaintiff to defendant for transportation to a dyer of furs in Brooklyn New York. The defense was that the skins had not been received by defendant. The jury returned a verdict in favor of the plaintiff for $2,139.90. Defendant has appealed from a denial of its motion for a new trial.
The sufficiency of the evidence to warrant the jury in finding that the skins were delivered to an employe of the defendant authorized to receive them presents the only serious question to be determined. The principal witness for the plaintiff was Bessie Ravitzky, a young woman employed as a clerk in his store during the month of February, 1920. In substance, this was her testimony: On February 3, 1920, she called the defendant's office by telephone and told the person who answered the call that plaintiff had a valued shipment to be made. Later in the day an expressman came to plaintiff's store, but, on learning that the skins were to be carried to Brooklyn, said it was useless to take them because of a snow blockade, and the skins, which had been placed in two gunny sacks, tagged and addressed for shipment, were left in the store. Anticipating that they would be taken, the witness had filled out a receipt in a book furnished by defendant. She dated it February 3, 1920. Early in the forenoon of February 6 the witness called the express company again, substantially repeating her message of February 3. At about eleven o'clock, a man came into the store and said "express." The manager pointed out the two bags of skins and the man took them away after writing his initials "J.C.B." in the receipt book following the entries made by Miss Ravitzky on February 3. When he left, she went to the door, opened it for him and noticed a wagon backed up in front of the store. She described it as a wagon with a wire body and two gates at the rear. The words "American" or "American Express" were lettered upon it. She did not know the man and never had seen him before. He wore no uniform or badge, but had a button of some sort on his cap.
Plaintiff's manager was his only other witness. His testimony was confined to a description of the skins, the manner in which they were packed and addressed for shipment, and a general description of the man who took them away. He had no conversation with the man, but heard him call out "express" when he entered the store. It appeared that both witnesses ceased to be employed by the plaintiff shortly after he learned that the skins had not been received by the consignee. This information came to him in a letter dated February 17, acknowledging receipt of his letter of advice of February 3. On March 5 plaintiff notified defendant that the consignee had not received the shipment and requested that it be traced. On April 13 Miss Ravitzky gave defendant a signed statement not materially different from her testimony except that she stated she did not know the time of day when the man called for the skins. On April 26 plaintiff, by affidavit, entered a formal claim with the defendant for the value of the shipment. On May 26 he brought this action, alleging that the skins were delivered to defendant on or about February 6. In his letter of March 5 and again in his affidavit, he gave the date as February 3. The case was tried in April, 1921.
Defendant's chief telephone operator produced at the trial a slip showing the receipt of Miss Ravitzky's message of February 3. No record of the alleged message of February 6 was produced. About two weeks before the trial all slips showing telephone messages received more than a year prior thereto were destroyed in accordance with defendant's usual practice. Defendant had no record of the shipment in question. The testimony of defendant's witnesses tended to show that all "pickups" of valued merchandise in the district where plaintiff's store is located were made by a driver assigned to the route. There was but one wagon in service in this district to...
To continue reading
Request your trial