Fell v. Union Pac. Ry. Co.

• Decision Date: 08 March 1907
• Docket Number: 1815
• Citation: 32 Utah 101,88 P. 1003
• Court: Utah Supreme Court
• Parties: FELL v. UNION PAC. RY. CO

88 P. 1003

32 Utah 101

FELL v. UNION PAC. RY. CO

No. 1815

Supreme Court of Utah

March 8, 1907

APPEAL from District Court, Weber County; J. A. Howell, Judge.

Action by A. G. Fell against the Union Pacific Railway Company. Judgment for plaintiff.

Defendant appeals.

AFFIRMED.

P. L Williams, Geo. H. Smith and John G. Willis for appellant.

Heywood & McCormick for respondent.

FRICK J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This is an action for damages for injury to live stock while in transit. The plaintiff (hereinafter called respondent) alleges that he delivered to and that the defendant (hereinafter designated appellant) received from him for transportation from Granger, Wyo., to Chicago, Ill., a certain number of sheep; that the appellant negligently delayed the same while in transit at Schuyler, Neb., for a period of 32 hours, without providing any facilities to feed and water them; that said sheep were confined in the cars of appellant without food or water for a period of 72 hours, by reason of which a large number of lambs died; that the others shrank in weight; that all that did not die were by such negligent delay in transportation affected thereby; and that respondent was compelled to and did sell them for 50 cents on the hundredweight less than they would have sold for if they had been promptly and seasonably transported and delivered at the place of destination. In view of the errors assigned, the pleadings need not be further noticed, except in the following particular: In both the first and amended complaints, the respondent alleged the destination of the sheep to have been Omaha, Neb., but in the second amended complaint alleged the destination as Chicago, Ill. This amendment was allowed by the court upon due notice and argument and a long time prior to the trial of the cause, but the same was allowed over appellant's objection and exception. The cause was, by the consent of the parties, tried to the court without a jury, and the court specifically found that the death of the lambs, and shrinkage in weight, and the loss in price as alleged by respondent were all due to the negligence of appellant in delaying the sheep at Schuyler, Neb., for 32 hours, and in not providing facilities for food and water for the sheep for a period of 72 hours, and in confining them in cars for that length of time without food and water. The court also found the loss and damage to respondent for each item separately that is, for loss by death, by shrinkage in weight, and for loss in price by reason of the condition of the sheep caused by the negligent delay in transportation and in not providing facilities to feed and water them. On the whole amount of damages as found, the court allowed legal interest, as appears from the findings, from the date on which respondent made demand on appellant for damages for the injury and loss. It is not very clear, however, whether the court intended to allow interest from the date the sheep were delivered at Chicago, the place of destination, or from the date of demand by respondent. In our view, for the purposes of this decision, it makes no difference from what date the court computed interest, because the date from which it was computed, as appears from the record, was subsequent to the date of delivery of the sheep at their destination. The court entered judgment for the amount found as damages, with interest thereon as aforesaid, against appellant, and hence this appeal.

There are but two assignments of error argued--indeed, in the state of the record, no other assignment could be reviewed by this. The first error assigned and argued is the one that the court erred in permitting the second amendment of the complaint changing the place of destination of the shipment from Omaha to Chicago. This second amendment may have been caused by the statement contained in the appellant's answer to the first amended complaint, wherein it denied that the destination of the sheep was Omaha, and alleged that the destination was in fact Chicago, not Omaha. And it may have been due to the fact that the plaintiff alleged Omaha in his first complaint, because that was the end of appellant's line of road. The change made by the amendment was not a change or departure from the original cause of action. ( Casady v. Casady (Utah), 88 P. 32.) The delict of the appellant--the cause of damages and the amount thereof--was alleged precisely the same in all the complaints. Neither could the appellant have been misled thereby, as appears from the answer itself. Moreover, the court confined the damages strictly to the injury and consequent loss occasioned by the neglect of appellant on its own line of road, and appellant was thus not prejudiced by the amendment. The contention of appellant, we think, is answered in this respect in the case of Missouri, K. & P. Ry. Co. v. Truskett, 53 S.W. 444, 2 Indian Terr. 633. This assignment therefore cannot be sustained.

The next and only other assignment of error relates to the allowance of interest by the court on the amount of damages found to have been sustained by the respondent. Appellant asserts that, this being an action for unliquidated damages sounding in tort, therefore interest cannot legally be allowed until the loss or damage is ascertained at the trial. It is further contended that such is the law of this state as appears from the decisions of this court. Before referring to our own decisions upon this question, we shall examine the question in the light of the authorities. While it is true that this is an action for a tort, and that the damages were unliquidated, the cause of action, nevertheless, arose out of a contract for carriage; that is, the reciprocal rights and duties arising out of the relation of carrier and shipper arose by virtue of a contract. Both parties insist on this in their pleadings, and such, in the nature of things, must be so. But, since appellant acted in the capacity of a common carrier, its duties and respondent's rights were governed by law, and, as there is no question presented for review in respect to the modification of the law by the contract, we must treat this case, for the purposes of this decision, upon the law applicable to a common carrier of live stock regardless of any special contract. In view of the law, therefore, applicable to common carriers, where, through their negligence, a shipper suffers injury and damages to his property while in transit, or for negligent delay in transportation and delivering the same at the place of destination, what is the prevailing rule as to the amount of damages and the allowance of interest?

In the case of New York, etc. Ry. Co. v. Estill, 147 U.S. at page 622, 13 S.Ct. at page 456 (37 L.Ed. 401), the United States Supreme Court, in a case for injury to live stock while in transit, states the general rule as to the measure of damages in the following language:

"It is well settled as a general rule that the measure of damages in a case of a common carrier is the value of the goods intrusted to it for transportation, with interest from the time when they ought to have been delivered"--citing, among other authorities, Hutchinson on Carriers (2d Ed.) section 771, and 1 Sutherland on Damages, 629. And the court then proceeds further: "But when the matter appears to have been regulated by statute in the state, and the statute has been interpreted by its highest court, the regulation of the statute will be followed in the courts of the United States."

This was done in that case, and interest was not allowed only because the Supreme Court of Missouri, under the statute of that state, held that interest is not permitted in case of unliquidated damages, except in special cases. The rule is also stated by the same court, in the case of Mobile & M. Ry. Co. v. Jurey, 111 U.S. 584, 4 S.Ct. 566, 28 L.Ed. 527, where, in the syllabus, it is said:

"The measure of damages in an action against a common carrier for loss of goods in transit is their value at the point of destination, with legal interest."

In the case of Wilson v. Troy, 32 N.E. 44, 135 N.Y. 96, 18 L. R. A. 449, 31 Am. St. Rep. 817, the Court of Appeals of New York, in discussing the question now under consideration, at page 46 of 32 N. E., page 457 of 18 L. R. A. (135 N.Y. 96, 31 Am. St. Rep. 817), says:

"It is difficult to perceive any sound distinction between a case where the defendant converts or carries away the plaintiff's horse and a case where, through negligence on his part, the horse is injured so as to be valueless. There is no reason apparent for a different rule of damages in the one case than in the other."

Quite true that, notwithstanding the court here clearly points out that there can be no distinction in reason, the courts of New York, in deference to early decisions, still cling to the old theory that in certain cases it is for the jury to say whether interest shall be allowed or not. The question however, is not relegated to the jury in cases like the one at bar, even in New York, as is manifest from the case of Dana v. Fiedler, 12 N.Y. 40 at 40-50, 62 Am. Dec. 130. The following cases are all cases of injury to or destruction of personal property or live stock while in transit, and in all of them the measure of damages is stated to be the amount of loss, with legal interest from the time of delivery or loss: Gulf, C. & S. F. Ry. Co. v. McCarty, 82 Tex. 608, 18 S.W. 716; Houston & F. C. Ry. Co. v. Jackson, 62 Tex. 209; So. P. Ry. Co. v. Anderson (Tex. Civ. App.), 63 S.W. 1022; Missouri, K. & P. Ry. Co. v. Trusket, 53 S.W. 444, 2 Indian Terr. 633; St. L., etc., Ry. Co. v. Phelps, 46 Ark. 485; Jacksonville, T. & W. Co. v. Penn. T. & Mfg. Co., 27 Fla. 1, 157, 9 So. 661, 17 L. R. A. 33; ...