Colley v. Chicago & N.W. Ry. Co.
| Decision Date | 01 March 1922 |
| Docket Number | 21978 |
| Citation | 187 N.W. 98,107 Neb. 864 |
| Parties | WALTER R. COLLEY, APPELLEE, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: ELLIOTT J CLEMENTS, JUDGE. Affirmed on condition.
AFFIRMED ON CONDITION.
Wymer Dressler, Robert D. Neely and Paul S. Topping, for appellant.
Wilmer B. Comstock, contra.
Heard before LETTON, DEAN and FLANSBURG, JJ., DAY (L. B.) and Good District Judges.
This is an action for damages growing out of the transportation of household goods and furniture by the Chicago & Northwestern Railway Company. The plaintiff in his original petition claimed that the railway company had converted the property shipped, and sued for the full value. No allegations of fact were set out at the time of the first trial sufficient to sustain the charge of conversion, but the petition only went so far as to show negligence on the part of the railway company and a temporary loss of the goods. Shortly after the suit was commenced, the goods were found. Judgment was rendered for the plaintiff on the first trial for their full value, on the theory that the railway company, in negligently losing track of the goods and being unable to deliver them, had converted them. This court reversed that judgment, upon the unpublished opinion of the supreme court commission (case No. 20791), and held that negligence and loss of goods was not a sufficient affirmative misappropriation of the goods, or exercise of claim or control over them by the railway company as would constitute a conversion, and held that recovery against the railway company on the cause of action alleged in the petition should be limited to the damages actually sustained through the delay and temporary loss in shipment.
At the second trial a supplemental petition was filed, in which it was alleged that, after finding the goods, the railway company refused to deliver them to the plaintiff, and the proof in support of that allegation is that the railway company's agent demanded the payment of storage charges covering the period that the goods had been in storage during the time that the railway company was unable to inform the plaintiff as to their whereabouts. The exaction of this charge was wrongful, and the trial court on the second trial submitted the case to the jury apparently upon the theory that those acts, supported by the allegations of the plaintiff's petition, constituted a conversion of the goods.
It is argued by the defendant that our holding in the former opinion, being the law of the case, has determined the matter of the conversion adversely to the plaintiff, and that the trial court was in error in allowing the plaintiff to pursue that theory further, and in submitting the case to the jury as one for conversion. We believe the defendant's position is untenable. In the former opinion it will be noted that the matter as to a conversion by the railway company's refusal to deliver the goods, except upon payment of the wrongful charges, was eliminated from the case, for the reason that the acts constituting such conversion were not set up in the plaintiff's petition, the circumstances having transpired since its filing, and no amended or supplemental petition had been filed covering those facts. There was at the first trial an attempt to supplement the cause of action, which had been set out in the petition, by allegations of new matter in the reply, but this was done over the objection of the defendant, and it was held in the former opinion that the plaintiff could not, over objection, avail himself of a cause of action thus pleaded, and that the evidence upon those issues was properly objected to during the trial.
The defendant introduced, without objection, the bill of exceptions of the evidence presented at the former trial. The record, however, shows that only a portion of this evidence was read to the jury, and that was done by the plaintiff. The testimony read was that of the station agent of the defendant railway company, where he testified that, after the shipment of the goods to Lincoln, he had offered them to the plaintiff, but had refused to deliver them unless the plaintiff should pay the storage charges to cover the period that the goods were lost and in the warehouse at Detroit. The plaintiff also testified that he could not procure delivery of the goods from the defendant's agent, except upon the payment of those unlawful charges.
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