Curtis Tire & Rubber Co. v. Goodrich Transit Co.
Decision Date | 24 April 1925 |
Docket Number | No. 87.,87. |
Court | Michigan Supreme Court |
Parties | CURTIS TIRE & RUBBER CO. v. GOODRICH TRANSIT CO. |
OPINION TEXT STARTS HERE
Error to Circuit Court, Muskegon County; John Vanderwerp, Trial Judge.
Action by the Curtis Tire & Rubber Company against the Goodrich Transit Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.
Edward C. Farmer, of Muskegon, for appellee.
The plaintiff suffered a loss by fire under such circumstances that it claimed defendant was liable. It brought this suit to recover damages. At the close of the testimony, a motion was made for a directed verdict on the part of the defendant. This motion was overruled, and the jury returned a verdict in the sum of $7,633 in favor of the plaintiffs. A motion was made for judgment non obstante. This was overruled. A motion was then made for a new trial, which motion was denied. The case is brought into this court by writ of error.
The errors assigned may be grouped under three heads: Errors in the admission of testimony; errors in refusing requests to charge, and the charge as give; errors in refusing a directed verdict and a motion for a new trial.
The plaintiff was making automobile tires in Muskegon. It shipped a quantity of them by a boat owned by the defendant. Standard bills of lading were issued by the defendant to the plaintiff. Before the boat reached Chicago, water got into the hold of the vessel and water-soaked the goods shipped by the plaintiff. It is the plaintiff's claim that defendant made an arrangement with it to recondition and repack the goods so they would be presentable and would pay the plaintiff for doing so, and would then convey the goods to the consignees as provided in the original bills of lading. These bills of lading were not surrendered.
It is the further claim that plaintiff received the goods simply to put them in condition for the defendants when they were to be forwarded as stated.
It is the further claim that they put the goods in condition and notified the defendant, and were directed to hold the goods because defendant's warehouse was glutted with freight, and that the next day after one of these requests was made, the goods were totally destroyed by fire. The defendant with its plea gave notice, among other things, that these tires at the time of their destruction by fire were in the sole possession and control of plaintiff; that the contract of carriage made when the tires were originally shipped was terminated; that the title to said tires was in the plaintiff, and when same were delivered to it by the defendant plaintiff assumed full control over the tires, and this was substantially its claim on the trial.
The defendant said, in substance, that after the accident happened to the ship the goods were returned to the plaintiff under an arrangement that the plaintiff would take back the goods and recondition them and at a later date deliver them to the defendant for transportation; that plaintiff might send part of these goods to the same consignees and to replace them in part with other tires; that while the defendant was to pay the plaintiff for the work on the tires, the defendant claims that plaintiff had full control over the tires when they were taken back, and the defendant had ceased to be a common carrier and had no responsibility regarding them whatever.
The defendant further claims that it never afterwards refused to acccept the goods for shipment as claimed by the plaintiff.
The trial judge stated fairly the claim of the respective parties and submitted the case to the jury as follows:
‘To determine that question, gentlemen, or the question that is submitted to you, you should take into consideration all of the evidence in the case, both the testimony of the witnesses and the exhibits offered and received in evidence, also take into consideration what the parties did regarding these goods after that time, and what was said in the correspondence as bearing upon what the agreement was between the parties, and take into consideration, gentlemen, all the facts and circumstances as disclosed by the evidence, sa I say, bearing upon the question that I have referred to and which you are to determine, that is, as to what the arrangement and agreement was at the time the goods were returned by the defendant to the plaintiff and under which the goods were returned by the defendant to the plaintiff.’
The position of counsel for the appellant is stated as follows:
Counsel cite in support of its proposition paragraph 94, Hutchinson on Carriers; Stapleton v. Grand Trunk Ry. Co., 133 Mich. 187, 94 N. W. 739;Barron v. R. R. Co., 2 Ala. App. 555, 56 So. 862; and other cases.
There is not much controversy about the law if the facts were as stated by counsel. The testimony as to the facts is in dispute. If the facts were as claimed by the plaintiff, it had shipped its goods by the defendant's line, had received bills of lading for them, the goods had been damaged so that the consignees would doubtless have refused them, and that plaintiff without surrendering its bills of lading simply undertook at the request of the defendant to put the goods in repair when they were to be reforwarded on the original bills of lading. If this contention was true, we think it may be said that while the actual possession of the goods was in the plaintiff to make the repairs, the constructive possession was all the time in the defendant. The diligence of counsel has not enabled them to cite a controlling authority.
We think the pivotal question was one of fact, and that it was fairly submitted to the jury. We have considered the other questions, but think it unnecessary to discuss them.
The judgment is affirmed, with costs to the appellees.
All authority holds the carrier, if a common one, bound to deliver in good order, at least free from injury in transit. If damage is occasioned the shipment in transit, remedial by reconditioning, it is the duty of the carrier to restore the condition, if reasonably possible, and then make delivery.
The carriage here was temporarily arrested by defendant for the purpose of enabling it to perform its obligation to make delivery in good order. The carriage was not abandoned, modified, or ended, for the agreement for reconditioning was bottomed upon defendant's duty in the premises and a clear recognition thereof by shipper and carrier.
I shall spend no time on...
To continue reading
Request your trial