Fisher Corp. v. Consolidated Freightways, Inc.

Decision Date13 January 1989
Docket NumberNo. 87-289,87-289
Citation434 N.W.2d 17,230 Neb. 832
Parties, 8 UCC Rep.Serv.2d 148 FISHER CORPORATION, Appellant, v. CONSOLIDATED FREIGHTWAYS, INC., Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. Uniform Commercial Code: Liability: Negligence: Warehousers. A warehouser, that is, one "engaged in the business of storing goods for hire," Neb.U.C.C. § 7-102(1)(h) (Reissue 1980), is, in the absence of a contrary agreement, liable for goods lost while in its possession only if the loss occurred through its negligence. Neb.U.C.C. § 7-204 (Reissue 1980).

2. Uniform Commercial Code: Motor Carriers. A common carrier is an insurer against loss from whatever cause, except an act of nature, of the public enemy, or of the owner of the goods.

3. Uniform Commercial Code: Motor Carriers: Warehousers. Once a common carrier tenders delivery of consigned goods to a consignee which refuses delivery, the carrier loses its status as a common carrier and becomes a warehouser.

4. Uniform Commercial Code: Motor Carriers: Warehousers. Where a common carrier turned warehouser, acting as a bailee, accepts instructions from the bailor to ship goods to a specific location, its status as a warehouser again changes to that of common carrier.

5. Appeal and Error. One cannot be heard to complain of an alleged error corrected in a manner to which the complaining party agreed.

6. Verdicts: Appeal and Error. One may not waive an error, gamble on a favorable verdict, and, upon receiving an unfavorable result, reassert the error.

7. Jury Instructions: Appeal and Error. Jury instructions must be read together, and if taken as a whole they correctly state the law, are not misleading, and adequately cover the issues, there is no prejudicial error upon which a reversal on appeal may be based.

8. Jury Instructions: Appeal and Error. It is not error to refuse to give a requested instruction if the substance of the request is in the instructions actually given.

9. Jury Instructions: Appeal and Error. Where the meaning of an instruction is clear and a correct statement of the law, error cannot be predicated on the selection of words.

10. Directed Verdict. A directed verdict is proper only where an issue should be decided as a matter of law; that is, where reasonable minds cannot differ and can draw but one conclusion from the evidence.

11. Verdicts: Appeal and Error. In determining the sufficiency of the evidence to sustain a verdict in a civil case, this court considers the evidence most favorably to the successful party and resolves evidential conflicts in favor of such party, which is entitled to every reasonable inference deducible from the evidence.

12. Verdicts: Appeal and Error. A civil jury verdict will not be disturbed on appeal unless clearly wrong.

13. Verdicts: Appeal and Error. A verdict is not to be set aside where the evidence is in conflict or where reasonable minds may reach different conclusions or inferences, as it is within the jury's province to decide issues of fact.

14. Motions for New Trial. A motion for new trial is addressed to the discretion of the trial court and is entertained with reluctance and granted with caution, because of the manifest injustice in allowing a party to allege that which may be the consequence of its own neglect in order to defeat an adverse verdict, and, further, to prevent fraud and imposition which defeated parties may be tempted to practice to escape the consequences of an adverse verdict.

15. Motions for New Trial: Evidence: Proof. In order to make a sufficient showing for new trial upon the ground of newly discovered evidence, the proof in support thereof must show that such evidence is available which neither the litigant nor counsel could have discovered by the exercise of reasonable diligence and that it is not merely cumulative, but competent, relevant, and material, and of such character as to reasonably justify a belief that its admission would probably bring about a different result if a new trial were granted.

Elizabeth Stuht Borchers, of Marks & Clare, Omaha, for appellant.

Thomas D. Wulff, of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellee.

BOSLAUGH, WHITE, CAPORALE, and SHANAHAN, JJ., and JAMES MURPHY, District Judge.

CAPORALE, Justice.

Plaintiff-appellant, Fisher Corporation, a manufacturer of electronic equipment, seeks to recover the value of certain video cassette recorders stolen while in the possession of defendant-appellee, Consolidated Freightways, Inc., a transporter of goods. The district court, in accordance with verdicts, dismissed Fisher's action. Fisher appeals, asserting, in summary, that the district court erred in (1) striking one of its two alternative theories of recovery, (2) instructing the jury, (3) ruling the evidence sufficient to support the verdicts, and (4) refusing to grant a new trial for newly discovered evidence. We affirm.

In its original petition, Fisher pled that it was entitled to recover on the theory that at the time of the theft, Consolidated was serving as a warehouser, or alternatively, on the theory that at the relevant time, Consolidated was serving as a common carrier. A warehouser, that is, one "engaged in the business of storing goods for hire," Neb.U.C.C. § 7-102(1)(h) (Reissue 1980), is, in the absence of a contrary agreement, liable for goods lost while in its possession only if, as detailed later in this opinion, the loss occurred through its negligence. See Neb.U.C.C. § 7-204 (Reissue 1980). A common carrier, on the other hand, is an insurer against loss from whatever cause, except an act of nature, of the public enemy, or of the owner of the goods. Lincoln Drug Co. v. Harman, 146 Neb. 354, 19 N.W.2d 566 (1945). Consolidated demurred generally to the entire petition. For some reason not apparent to us, the district court treated the demurrer as a motion to strike and ordered Fisher's common carrier theory of recovery stricken. Fisher then amended its petition so as to allege only its warehouser theory. Consolidated thereafter answered by admitting the loss but denying any negligence, attributing the loss to theft.

The record reveals that in June of 1984, Fisher, under a "standard bill of lading," delivered to Consolidated, at Fisher's warehouse in California, 132 recorders for shipment to World Radio, Inc., an electronics retailer, at Council Bluffs, Iowa. Consolidated divided the shipment into two parts, tendering delivery to World Radio of 60 recorders on June 29 and 72 recorders on July 6. World Radio rejected each tender as duplicative of earlier shipments.

In order to understand what follows, it is necessary to interrupt our recitation of the relevant events and review the legal significance of World Radio's rejection of the recorders. So far as we can determine from the record, the bill of lading under which the recorders came into Consolidated's possession stated nothing about Consolidated's liability for loss should it find itself unable to deliver the recorders to World Radio as Fisher had directed. Under such a circumstance, once a common carrier tenders delivery of the consigned goods to a consignee which refuses delivery, the carrier loses its status as a common carrier and becomes a warehouser. Rio Grande Motor Way v. Resort Graphics, 740 P.2d 517 (Colo.1987); Barlow Upholstery & Furniture Co. v. Emmel, 533 P.2d 900 (Utah 1975); Chicago & North Western Ry. Co. v. Union Packing Co., 373 F.Supp. 734 (D.Neb.1974), aff'd 514 F.2d 30 (8th Cir.1975); General American Tr. Corp. v. Indiana Harbor Belt R. Co., 191 F.2d 865 (7th Cir.1951), cert. denied 343 U.S. 905, 72 S.Ct. 636, 96 L.Ed. 1324 (1952); Railway Exp. Agency v. Kessler, 189 Va. 301, 52 S.E.2d 102 (1949). Where a common carrier turned warehouser, acting as a bailee, accepts instructions from the bailor to ship goods to a specified location, its status as a warehouser again changes to that of common carrier. Rohr v. Logan, 206 Pa.Super. 232, 213 A.2d 166 (1965), citing Lehigh Valley R. Co. v. John Lysaght, Limited, 271 F. 906 (2d Cir.1921).

Returning to the relevant events, the record discloses that after each rejected tender, Consolidated returned the recorders to its terminal at Sarpy County, Nebraska, for storage, pending receipt of Fisher's further instructions. On the day after the second rejection, Consolidated loaded all 132 recorders onto a trailer, sealed but did not padlock the trailer doors, and placed the trailer at the south end of its terminal yard. Padlocks were not used on any trailer doors so as not to call attention to a trailer containing expensive cargo; rather, all trailers were sealed. The doors of the trailer faced away from the terminal, toward the south end of a Cyclone fence which encircled the yard.

In accordance with its usual practice, Consolidated sent Fisher a form letter notifying it of World Radio's rejection of the shipments and indicating that after 3 days, Fisher would be charged for storage unless Consolidated received disposition instructions.

At 7 a.m. on July 17, a Tuesday, Consolidated's employees discovered that 54 of the recorders were missing from the trailer. They also discovered that a large, 3-foot by 5-foot hole had been cut in the chain-link fence at the terminal's south end, and a smaller hole had been cut in the east fence. The recorders were never recovered.

The exact time the theft occurred is unknown, and witnesses' opinions vary as to when the theft took place. Maurice O'Toole, Consolidated's dock supervisor, testified that he checked the yard between 11:30 p.m. and midnight on Sunday, July 15, by walking behind all the trailers, and at that time he did not see any holes in the fence nor seals broken on the trailer containing the recorders. O'Toole claimed there was "no way [he] would have missed that hole."

O'Toole again checked the yard Monday night at 11:30 p.m. from his car but, because it was raining, did not check the back of the trailers or the fence....

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