Derosia v. Winona & St. Peter R. Co.

• Decision Date: 01 January 1873
• Citation: 18 Minn. 119
• Parties: LEVI DEROSIA v. WINONA & ST. PETER R. CO.
• Court: Minnesota Supreme Court

Page 119

18 Minn. 119

LEVI DEROSIAv.

WINONA & ST. PETER R. CO.

Supreme Court of Minnesota.

Appeal by defendant from a judgment of the district court, Blue Earth county.

Mitchell & Yale, for appellant.

Brown & Wiswell, for respondent.

RIPLEY, C. J.

On the morning of the seventeenth of March, 1869, the freight depot of the appellant at Waseca was, with its contents, destroyed by fire. This action is brought to recover for certain personal property of the plaintiff then in said depot and destroyed as aforesaid. Part thereof had been received by defendant from the Milwaukee & St. Paul Railroad at Owatonna, marked "L. Derosia, Waseca," and shipped by defendant over its road from Owatonna for Waseca on the eighth of said March. The rest marked as above, and received as aforesaid, was shipped by defendant over its road from Owatonna to Waseca aforesaid on the tenth of said March. Evidence was given which proved, as is not disputed, that the property first above mentioned arrived at Waseca at about 4:50 P. M. on said eighth day of March, and was unloaded from the cars into the freight depot and ready for delivery that night or the next morning, and that the rest arrived at Waseca at about 4:50 P. M. on said tenth day of March, and was unloaded from the cars and ready for delivery that night or the next morning. The plaintiff himself shipped the property for Waseca, — the first lot from McFarland, Wisconsin; the second from Lime Springs, Iowa. The plaintiff resided in the town of Medo, in Blue Earth county. It is not claimed that he had an agent at Waseca, and the uncontradicted evidence is that his residence was not known to defendant. Being called as a witness in his own behalf he testified that he saw the goods in question on the sixteenth of March, 1869, at the depot of defendant in Waseca.

He further testified as follows: "I went there to get the goods and bring them home. I went there before 4 o'clock in the afternoon. I went into depot and looked for the goods and found them there. Did not get them." The witness was then asked: "Why did you not get them?" This was objected to as immaterial, incompetent, and inadmissible under the pleadings. This objection was overruled, and defendant excepted.

In support of this objection it is urged that it did not call for any facts, but for reasons or conclusions, by way of argument, that might have operated on the witness' mind in changing or regulating his conduct. But we do not think that it does necessarily. For instance, it would be an answer altogether responsive to such a question to state, if such had been the fact, that he did not get them because he had not the money to pay the freight, and the defendant refused to deliver the goods without payment thereof, which would be only stating facts, not mental conclusions.

The general rule as laid down by Greenleaf, and referred to by defendant, (vol. 1, § 434,) is that the witness is to be examined only as to matters of fact within his own knowledge, and that inferences or conclusions which may be drawn from facts are ordinarily to be drawn by the jury alone. To such matters of fact the witness should, in general, be plainly, directly, and distinctly interrogated. The question might, perhaps, be objectionable as not sufficiently conforming to this latter branch of the rule, but we do not think that the answer, viz., "that he did not get them for the reason that there was no one there at the depot to let him have them," is objectionable, as not stating facts. It assigns a cause for the failure to get the goods, viz., a certain state of facts. There is, therefore, no error here materially affecting defendant's rights.

The jury were, at the defendant's request, instructed as follows, viz.: "That while said goods were in transit, the defendant would be liable as a common carrier for any loss or injury to the property, not caused by the act of God or the public enemy. But that after the goods had arrived at Waseca, and were deposited in defendant's warehouse or freight-room, ready for delivery to the plaintiff, and a reasonable time thereafter for the removal thereof by the plaintiff had elapsed, the liability of the defendant as common carrier ceased, and it would be liable thereafter only as a warehouseman;" and the court so instructed the jury.

This practically adopts the rule laid down in Moses v. Bost. & M. R. R. 32 N. H. 523. We have found no case which states the law more favorably for the respondent.

The head-note to Buckley v. G. W. R. R. Co. 18 Mich. 121, is that, in the absence of any usage, special circumstances or agreement, the liability of railway companies for goods in warehouses awaiting delivery is that of common carriers. But the opinion of the court by no means comes up to the head-note. We cannot discover that it goes any further than that the fact that the goods in question in the case had reached the defendant's warehouse at their place of destination, and had been by the defendant deposited therein, did not change its liability as carrier for that of warehouseman; whereas, the head-note is at least open to the construction that the liability of carrier continues until delivery, without limitation as to time — a proposition to which we could not assent.

The New Hampshire doctrine is directly opposed to what may be called the Massachusetts rule, first laid down in Norway Plains Co. v. B. & M. R. R. 1 Gray, 263, viz., that railway companies which transport goods over their roads for hire, and deposit them in their warehouses without additional charge until the consignee has a reasonable time to take them away, are not liable as common carriers for the loss of the goods by fire, without negligence or default on their part, after the goods are unladen from the cars and placed in the warehouse, but are liable as warehousemen only, for want of ordinary care, although the owner or consignee has no opportunity to take the goods away before the fire. So far as our observation goes, the New Hampshire decision has been approved in Vermont, Wisconsin, Kentucky, and Alabama. Winslow v. V. R. R. Co. 42 Vt. 700; Wood v. Crocker, 18 Wis. 345; Jeffersonville R. R. v. Cleaveland, 2 Bush, 468; Ala. & Tenn. R. R. v. Kidd, 35 Ala. 209.

Redfield also thinks that there is no very good reason why the carrier's responsibility should not continue until the owner or consignee, by the use of diligence, might have removed the goods. 2 Redfield, (4th Ed.) 67, 68. And a note to the last edition of Angell on Carriers states that the better view seems to be that there is no change in the nature of the liability of the carrier until the consignee has had reasonable opportunity to take the goods away. Chapter 8, p. 271, note a.

A view of the law similar to that of the supreme court of Massachussetts has, however, been taken in Indiana, Iowa, New Jersey, and North Carolina. New Alb. & S. R. R. v. Campbell, 12 Ind. 55; Morris & Essex R. R. v. Ayres, 5 Dutcher, 394; Francis v. Dubuque R. R. 25 Iowa, 60; Hilliard v. Railroad Co. 6 Jones, (N. C.) 343.

In the latest case from Illinois that has come to our notice the court say that the rule, though not the best that might be adopted in the premises, is well settled in this state, that a railroad company, to discharge its liability as carrier, on getting the goods to their place of destination, is not bound to deliver them to the consignee personally, or give notice of their arrival; and after storing them in a suitable place, to await the demand of the consignee, the liability is only that of a warehouseman. Chicago & A. R. Co. v. Scott, 42 Ill. 132.

In this conflict of authority, both parties agree that the railroad company is not obliged to give notice to the consignee of the arrival of the goods. From this, however, Prof. Parsons dissents, if the consignee's residence is known or can be found by any reasonable exertion. 2 Parsons, Cont. B. 3, c. 11, § 9.

In New York it has been recently held by the commissioners of appeals that if the consignee lives at or in the immediate vicinity of the place of delivery, the carrier must notify him of the arrival of the goods; but if the consignee is absent, unknown, or cannot be found, the carrier may place the goods in its warehouse, and after keeping them a reasonable time, if the consignee does not call for them, its liability as a common carrier ceases. If after the arrival of the goods the consignee has a reasonable opportunity to remove them, and does not do it, he cannot hold the carrier as an insurer. Fenner v. Buffalo & State Line R. R. 44 N. Y. 505.

For reasons hereafter stated, there must be a new trial in this case. It is necessary, therefore, that we should now state our conclusions as to the duty and liability of railway companies in respect of goods at their place of final destination; where, as in the present case, the consignee resides elsewhere than at or in the immediate vicinity of such place of final destination, and has no known agent there, and his residence is unknown to the carrier. In such a case, we are of the opinion that the carrier can place the goods in its freight-house, and after keeping them a reasonable time, if the consignee does not call for them its liability as carrier ceases, and it remains liable simply as a warehouseman.

In this case, the defendant next asked the court to charge "that what would be, under the circumstances of the case, such reasonable time for the removal of the goods, is not to be measured by any peculiar circumstances in the condition or situation of the consignee or plaintiff which might render it necessary for his convenience or accommodation that he should have a longer time or better opportunity than if he resided in the vicinity of the depot, and was prepared with the means and facilities of removing them. But that what is meant by reasonable time is such as would give a person residing in the vicinity of the place of delivery, and informed of the usual course of...