Chicago & S.E. Ry. Co. v. Fifth Nat. Bank

• Decision Date: 04 January 1901
• Citation: 59 N.E. 43,26 Ind.App. 600
• Parties: CHICAGO & S. E. RY. CO. v. FIFTH NAT. BANK.
• Court: Indiana Appellate Court

26 Ind.App. 600

59 N.E. 43

CHICAGO & S. E. RY. CO.

v.FIFTH NAT. BANK.¹

Appellate Court of Indiana.

Jan. 4, 1901.

Appeal from circuit court, Madison county; John F. McClure, Judge.

Action by the Fifth National Bank against the Chicago & Southeastern Railway Company to recover for goods wrongfully delivered. From a judgment in favor of plaintiff, defendant appeals. Affirmed.W. R. Crawford and U. C. Stover, for appellant. Francis A. Walker and Frank P. Foster, for appellee.

WILEY, J.

Appellee was plaintiff, and sued appellant for failure to deliver two car loads of hay shipped under written contracts to Cincinnati, Ohio. The complaint was in two paragraphs, to which a demurrer was addressed and overruled. The first paragraph of complaint avers that January 17, 1898, appellant received, at one of its stations on the line of its road, a car of hay from Budd & Plunkett, of the value of $80, for shipment to Cincinnati, Ohio; that it agreed to haul the same to said destination, if on its line of road, otherwise to deliver it to another carrier on the route to its destination; that, pursuant to its contract, it hauled said hay to Anderson, Ind., and there delivered it to the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company; that appellant issued to the owners and shippers of said hay a bill of lading covering said car of hay, a copy of which is filed with the first paragraph of complaint as an exhibit. It is then averred that Budd & Plunkett indorsed and delivered said bill of lading to the J. N. Woolscraft Grain Company; that on January 18, 1898, said last-named company indorsed and delivered said bill of lading to appellee, each of which said indorsements are made exhibits to the complaint; that said indorsements and delivery were made to appellee as collateral security in consideration of a loan of $75 then made by appellee to said grain company, evidenced by a demand note of said date. It is also alleged that appellant's agent at Max, Ind., where said hay was received for shipment, in violation of the terms of said bill of lading, billed said car direct to said J. N. Woolscraft Grain Company; that appellant delivered said hay at Anderson to said connecting line on or about January 21, 1898, which connecting line carried the same to its destination, where, within a few days after its arrival at Cincinnati, the same was turned over by the agent of said connecting line to the J. N. Woolscraft Grain Company; that said hay was so delivered to said grain company without the production of, and without any notice or knowledge that appellant had issued, a bill of lading covering the shipment; that appellee has held said bill of lading as collateral security ever since it was indorsed to it, and still holds it, and never at any time or in any wise authorized the appellant, or the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, to deliver or turn over said hay without production of the bill of lading; that on or about the 25th of January, 1898, said grain company sold and disposed of said hay, and put the same beyond the reach of appellee; that on or about April 23, 1898, said grain company failed, became and ever since has remained insolvent, rendering appellee's said debt uncollectible and worthless; that immediately after such failure appellee presented its said claim to the assignee of said grain company for payment, which was refused; that said sum nor any part thereof has ever been paid; that appellee has not received from appellant or any one else any compensation on account of said loss, although demand therefor has been made upon appellant and its agent. It is further alleged that by the carelessness and negligence of appellant and its agent in billing and consigning said car direct as aforesaid, when it had issued to the shipper its bill of lading, and by reason of all the facts aforesaid, it has brought upon appellee the loss of said sum so loaned upon the security of said bill of lading, in the sum of $85, for which it demands judgment. The second paragraph of the complaint is identical to the first, except it rests upon a subsequent shipment of a car of hay billed as the first and indorsed as the first. There is this difference, however: The second car was delivered to the Cleveland, Cincinnati, Chicago & St. Louis Railway Company at Anderson, and by it carried to Cincinnati. In each of said bills of lading, under the column marked “Consignees and Destination,” appears the following: “Budd & Plunkett. Notify Woolscraft Grain Co., Cincinnati, Ohio.” On the back of the first bill of lading the following indorsement appears: “Budd & Plunkett, $50.00. The J. N. Woolscraft Grain Co. W. A. Campbell, Treasurer.” On the back of the second bill of lading the following indorsement appears: “Budd & Plunkett, $50.00. The J. N. Woolscraft Grain Co., per W. A. Campbell, Tr.” In the first bill of lading, in the column in which is written the names of the consignees and the place of destination, and immediately above the names of the consignees, is the word “Order.” A demurrer was addressed to each paragraph of the complaint, and overruled. Answer and reply. The trial was had by the court, and, upon proper request, a special finding of facts was made, and conclusions of law stated thereon. Judgment for appellee in the sum of $131.95. Appellant excepted to the conclusions of law, and moved for a new trial and in arrest of judgment, which motions were overruled.

The errors assigned are (1) overruling the demurrers to each paragraph of complaint; (2) setting aside the submission of the cause and hearing additional testimony; (3) that the court erred in its conclusions of law; (4) overruling motion for a new trial; and (5) overruling the motion in arrest of judgment.

The first objection urged to the complaint is that it fails to aver that notice of loss was given as required by paragraph 3 of the bill of lading. Paragraph 3 provides that claims for loss or damage must be made in writing to the agent at point of delivery promptly after arrival of the property, and that if delayed for more than 30 days, or after due time for delivery thereof, no carrier shall be liable. The general rule is that this condition in a bill of lading is a reasonable one, and that the giving of such notice is a condition precedent to any recovery upon the contract, and that a performance of such condition must be averred in the complaint and proven on the trial. Railroad Co. v. Widman, 10 Ind. App. 92, 37 N. E. 554;Express Co. v. Harris, 51 Ind. 127;Insurance Co. v. Duke, 43 Ind. 418;Sprague v. Railway Co. (Kan. Sup.) 8 Pac. 465; Railroad Co. v. Morris, 16 Am. & Eng. R. Cas. 259; Railway Co. v. Ragsdale, 14 Ind. App. 406, 42 N. E. 1106; Railroad Co. v. Simms, 18 Ill. App. 68. The cases so holding are based upon loss or damage in transitu, and do not relate to cases where there has been a conversion. The complaint before us, if it is to be held good, must be upon the theory that appellant, after issuing a bill of lading to Budd & Plunkett, consignees, negligently and wrongfully issued a shipping or way bill in the name of the J. N. Woolscraft Grain Company, thus indicating or designating them as the consignees, and in failing to notify the connecting companies that the hay was covered by a bill of lading and consigned to Budd & Plunkett.

The act of appellant which caused the loss to the appellee was a tortious one, and amounted in law to a conversion. The act occasioning the loss, or what may be termed the proximate cause of the loss, was in issuing the waybill in the name of, and shipping the hay directly to, the Woolscraft Grain Company, and in delivering the same, so billed, to the connecting and forwarding companies without any bills of lading, and without information to the forwarding companies that such bill of lading had been issued to Budd & Plunkett. It was the duty of appellant to ship the hay in accordance with the terms of the bills of lading. By the bills of lading, Budd & Plunkett were named and made the consignees, while by the shipping or way bills the Woolscraft Grain Company was named and made the consignee. The forwarding companies received from appellant the cars of hay so billed, and by such waybills they were instructed and authorized to deliver the hay to the grain company therein named. That the delivery of goods by a common carrier to a third or wrong person amounts to a conversion is so declared by many authorities. Transportation Co. v. Merriam, 111 Ind. 5, 11 N. E. 954;Gibbins v. Farwell, 63 Mich. 344, 25 N. W. 855;Forbes v. Railroad Co., 133 Mass. 154;North v. Transportation Co., 146 Mass. 315, 15 N....