Davis v. New York, Ontario & Western Railway Company

Citation72 N.W. 823,70 Minn. 37
Decision Date09 November 1897
Docket Number10,731--(92)
CourtMinnesota Supreme Court

Appeal by defendant from an order of the district court for Hennepin county, Elliott, J., denying its motion for judgment notwithstanding the verdict or for a new trial. Reversed.

Order reversed.

George B. Young, for appellant.

As to what is a bill of lading, see "Bill of Lading," Black, Law Dict.; Bouvier, Law Dict.; Minneapolis v Home, 55 Minn. 236. Where the contract appears to be in writing, its terms are provable only by the instrument itself, if that is obtainable. Ortt v. Minneapolis, 36 Minn. 396; Lowry v. Harris, 12 Minn. 166 (255).

As a general rule the cause of action or the defense as proved must correspond with that averred in the pleading. If the case is otherwise, there is no room for amendment; a dismissal of the complaint or rejection of the defense is the only result. Pomeroy, Code Rem. §§ 553-557; Cowles v. Warner, 22 Minn. 449; Cummings v Long, 25 Minn. 337; Benson v. Dean, 40 Minn 445; Dennis v. Spencer, 45 Minn. 250; Baker v Dessauer, 49 Ind. 28; Jeffersonville v. Worland, 50 Ind. 339; Long v. Doxey, 50 Ind. 385; Boardman v. Griffin, 52 Ind. 101; McKown v. Furgason, 47 Iowa 636; York v. Wallace, 48 Iowa 305; Burns v. Iowa, 48 Iowa 279; Proctor v. Reif, 52 Iowa 592; Flynn v. Des Moines, 63 Iowa 490; Wernli v. Collins, 87 Iowa 548; Arnold v. Angell, 62 N.Y. 508; Harris v. Kasson, 79 N.Y. 381; Southwick v. First National, 84 N.Y. 420; Reed v. McConnell, 133 N.Y. 425; Burdsall v. Waggoner, 4 Colo. 256; Mondran v. Goux, 51 Cal. 151; Hopkins v. Orcutt, 51 Cal. 537; McCord v. Seale, 56 Cal. 262; Distler v. Dabney, 3 Wash. 200; Clark v. Sherman, 5 Wash. 681; 2 Greenleaf, Ev. § 209; Ireland v. Johnson, 1 Bing. (N. C.) 162; Latham v. Rutley, 2 B. & C. 20. In case pleadings and proof show defendant to be a common carrier the law itself determines the extent and degree of his liability; in the other case the terms of his undertaking must be proved by plaintiff. In either case an express contract, if there be one, must be relied on. 2 Greenleaf, Ev. § 210; Ortt v. Minneapolis, 36 Minn. 396; Ferguson v. Cappeau, 6 Har. & J. (Md.) 394; Flynn v. Des Moines, supra; Mondran v. Goux, supra; Burdsall v. Waggoner, supra; Baker v. Dessauer, supra; Jeffersonville v. Worland, supra; Reed v. McConnell, supra; Southwick v. First National, supra.

The plaintiff must establish that the goods were in good condition when they came to the possession of the defendant as part of the evidence that they have been injured while in the carrier's custody. Ray, Neg. Imp. Dut. (Freight) 1030; Smith v. New York, 43 Barb. 225; Ortt v. Minneapolis, 36 Minn. 396. The establishing of joint or through rates or the issuing of through bills of lading does not make the different carriers in the continuous line joint carriers for the line or make any one of the carriers liable for the defaults of any other. Wehmann v. Minneapolis, 58 Minn. 22; Ortt v. Minneapolis, supra. Where goods pass over a line of several different carriers, there being no direct evidence to the contrary, the presumption is that they reached the last carrier in the line in the same condition as when delivered to the first carrier in the line. Shriver v. Sioux City, 24 Minn. 506; Leo v. St. Paul, 30 Minn. 438; Louisville v. Jones, 100 Ala. 263; Savannah v. Harris, 26 Fla. 148; 2 Jaggard, Torts, 1072. If defendant used ordinary care in loading, he is not liable for the injury, if any, and the test is the amount of care ordinarily used by men in general in similar circumstances. Kolsti v. Minneapolis, 32 Minn. 133; Armstrong v. Chicago, 45 Minn. 85; Flanders v. Chicago, 51 Minn. 193; Lawson v. Truesdale, 60 Minn. 410. When it is not certain that the damage resulted from the transportation. Shea v. Chicago, 66 Minn. 102.

As to the duty of attorneys to produce papers entrusted to them by their clients, see Stokoe v. St. Paul, 40 Minn. 545; Brandt v. Klein, 17 John. 335; Mitchell's Case, 12 Abb. Pr. 249; Coveney v. Tannahill, 1 Hill, 33; 1 Greenleaf, Ev. §§ 233, 241. Shaw, C. J., in Hatton v. Robinson, 14 Pick. 416, 422. Barnes v. Harris, 7 Cush. 576; 1 Greenleaf, Ev. § 240; Coveney v. Tannahill, supra; Robson v. Kemp, 5 Esp. 52; Brard v. Ackerman, 5 Esp. 119; 1 Greenleaf, Ev. § 241, and cases cited; 3 Phillips, Ev. (Cowen & Hill Notes) 182 (3d Ed.); Linde v. Judd, 3 Day, 499; Jackson v. Denison, 4 Wend. 558; Anonymous, 8 Mass. 370; State v. Squires, 1 Tyler, 147; Parker v. Yates, 12 J. B. Moore, 520; Jackson v. Burtis, 14 John. 391; 3 Phillips, Ev. C. & H. Notes, 191, (3d Ed.). This rule is in full force in this state by virtue of G. S. 1894, § 5662.

An agent's statements as to transactions of which he never had personal knowledge are hearsay and not evidence, if offered either by plaintiff or defendant. 1 Greenleaf, Ev. § 113; Lowry v. Harris, 12 Minn. 166 (255); Powell v. Northern, 46 Minn. 249. The admission or declaration of an agent binds his principal only when made while he is agent in regard to a present transaction. Lowry v. Harris, supra; Presley v. Lowry, 25 Minn. 114; Van Doren v. Bailey, 48 Minn. 305; Browning v. Hinkle, 48 Minn. 544; Peek v. Detroit, 29 Mich. 313; Tripp v. Metallic, 137 Mass. 499; Johnston v. Elizabeth, 104 Pa. St. 394; Cook, Stocks (2d Ed.) § 726, and cases cited.

The rule applies as well to a general as to a special agency. Van Doren v. Bailey, supra; Fairlie v. Hastings, 10 Ves. 123; White v. Miller, 71 N.Y. 118; Stiles v. Western, 8 Metc. (Mass.) 44; Mechem, Ag. §§ 714, 715; Randall v. Northwestern, 54 Wis. 140. The agent will not be presumed to have power to admit away the rights of the corporation. Milwaukee v. Finney, 10 Wis. 330; Hazleton v. Union, 32 Wis. 34; Packet v. Clough, 20 Wall. 528; 2 Thompson, Neg. 848, note 7; Giberson v. Patterson, 174 Pa. St. 369; Story, Ag. § 134; Doyle v. St. Paul, 42 Minn. 79; Halverson v. Chicago, 57 Minn. 142. Where material evidence has been improperly admitted it will be presumed that it influenced the verdict or findings unless the contrary clearly appear. Thompson v. Wilson, 34 Ind. 94; Baker v. Dessauer, 49 Ind. 28.

Where the agreement is set forth in the contract for carriage it would probably be presumed that, in a case where parties could make any, there was some concession of rates as a consideration for relieving the carrier of part of his common law liability. Wehmann v. Minneapolis, 58 Minn. 22; Alair v. Northern, 53 Minn. 160; J. J. Douglas v. Minnesota, 62 Minn. 288; U. S. v. Koerner, 65 Minn. 540.

Stiles & Stiles, for respondent.

The bill of lading was identified and introduced in evidence by the defendant, thereby curing any alleged failure of proof in plaintiff's case in that respect, for it cannot be material by which party the bill was offered. Cole v. Curtis, 16 Minn. 161 (182); Berkey v. Judd, 22 Minn. 287. It not appearing by the instrument itself that any consideration existed whereon to base any of the numerous exemptions from common law liability contained therein, and there being no proof upon that subject, the court rightly held that those exemptions must fall. Ray, Neg. Imp. Dut. (Freight) 45; Adams v. Harris, 120 Ind. 73; Louisville v. Sowell, 90 Tenn. 17; Louisville v. Gilbert, 88 Tenn. 430; New York v. Lockwood, 17 Wall. 357; Marr v. Western Union, 85 Tenn. 529, 542. Things once proved to have existed in a particular state are presumed to have continued in that state until the contrary is shown. Shriver v. Sioux City, 24 Minn. 506. Defendant failed to bring himself within the rule which protects counsel from producing in court papers confidentially intrusted to them by their clients while in their employ as counsel. 1 Greenleaf, Ev. § 244. It is no part of the business or duty of the court to make another or different rule than that in the contemplation of the parties, by adding freight charges to the cost price or value at the point of shipment.



This was an action brought to recover for an alleged injury to a quantity of lemons, delivered to defendant company at Weehawken, New Jersey, to be transported to Minneapolis by it and its connecting carriers. A verdict for one thousand dollars was rendered against defendant, and its appeal is from an order denying a motion for a new trial. A new trial must be had because of erroneous rulings by the court below when receiving testimony.

It appears that at the time these lemons were delivered to defendant company, as initial carrier, one J. C. Anderson was its general freight agent, with his office in New York. At the same time one W. L. Martin was the general freight agent and one A. H. Bode was the freight claims agent, of the "Soo Railway Line," the terminating carrier, both having offices in Minneapolis. As soon as the lemons (two car loads) reached their destination and their damaged condition was discovered, Martin wired Anderson, notifying him of the fact and asking advice. Anderson replied to this telegram. Then Bode, as freight claims agent, wrote Anderson a letter in which he severely denounced the defendant company in respect to the manner in which the lemons were loaded upon the cars and asserted that, unless other methods were adopted, large claims for damages would have to be paid. To this letter Anderson, as defendant's general freight agent, replied, referring to two cars of lemons, with Weehawken waybills numbered 515 and 516. Bode, as freight claims agent, again wrote to Anderson in respect to the damages; and in reply the latter, on defendant's behalf, insisted that the lemons were properly loaded and that no injury had resulted for which his company would be liable. It was shown by oral evidence at the trial that Martin and Bode were in fact...

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