Goodman v. Oregon Ry. & Nav. Co.

• Decision Date: 01 February 1892
• Citation: 28 P. 894,22 Or. 14
• Parties: GOODMAN v. OREGON RY. & NAV. CO.
• Court: Oregon Supreme Court

28 P. 894

22 Or. 14

GOODMAN v. OREGON RY. & NAV. CO.

Supreme Court of Oregon

February 1, 1892

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

Action for damages to goods by Lee Goodman against the Oregon Railway & Navigation Company. Verdict and judgment for plaintiff. Defendant appeals. Reversed.

The other facts fully appear in the following statement by STRAHAN, C.J.:

This action is founded upon two counts for damages to two lots of goods alleged to have been shipped over the defendant's line,--one lot marked "S.W. Miller," and another lot marked "H.D.;" the value of the S.W. Miller lot being charged at $1,408.29, and that of the H.D. lot as of the value of $2,125.28, the value being the alleged value at Portland, Or. The goods consisted of a variety of drugs and medicines, principally in bottles; some in barrels consisting of oils, whiskies, etc. It was charged in the complaint that in August, 1888, plaintiff delivered to the defendant company, as a carrier, at Huntington, Or., this merchandise, which it was charged the defendant received at Huntington, and agreed to safely transport to Portland, Or and there deliver to the plaintiff within a reasonable time. The complaint then charged that the defendant did not safely carry or deliver the goods, but on the contrary, by negligence and misconduct of the defendant, "the same were in great part wholly lost and destroyed, and in great part so destroyed, damaged, and injured as to be wholly worthless and of no value, and, as to the rest and remainder of the same, so damaged and injured as to be rendered nearly worthless, and plaintiff was compelled to and did sell the rest and remainder for the sum of $387.70, which was and is a reasonable value therefor, on account of the said damage and injury, and that all of said merchandise marked 'S.W Miller' was lost, or so destroyed, damaged, and injured as to be nearly worthless and of no value when the same arrived in Portland, Or., and, on account of the worthlessness of the same, plaintiff refused to receive the S.W. Miller goods on arrival at Portland, Or." The material allegations of the complaint were denied by the answer.

The evidence at the trial tended to show that in July, 1888, the plaintiff shipped from Kahoka, Mo., over the Keokuk & Western Railway, two separate lots of goods, by separate shipments and with separate bills of lading therefor, of the general nature and character of goods in the complaint mentioned; one lot being billed to Hugh Doak, at Granger, Wyo., for delivery there, and another lot billed to S.W. Miller, at Ogden, Utah for delivery there. The evidence tended to prove that the goods were carried by rail by different railway companies from Kahoka, Mo., and finally reached their respective destinations at Granger and Ogden, respectively; that, in the course of this carriage, they were carried from Kansas City Mo., to destination by the Union Pacific Railway Company. The evidence of the plaintiff further tended to show that he had followed the goods, and had seen them boxed in the warehouses at Ogden and at Granger, Wyo. The bills of lading which he received from the Keokuk & Western Railway Company were as follows: "Received from Dr. Lee Goodman the following described packages in apparent good order, contents and value unknown, consigned as marked and numbered on the margin, to be transported over the line of this road [the Keokuk and Western Railroad] to the company's freight station at its terminus, and delivered in like good order to the consignee or owner at said station, or to such company or carriers, if the same were to be forwarded beyond said station, whose line may be considered a part of the road to the place of destination of said goods or packages; it being distinctly understood that the responsibility of this company as a common carrier shall cease at the station where delivered to such person or carrier; provided, no carrier or company forming a part of the line over which such freight is to be transported will be responsible for demurrage or detention at its terminus or beyond on any part of the line arising from any accumulation or overpressure of business. Upon the following conditions: Freight carried by this company must be removed from the station during business hours upon the day of its arrival, or it will be stored at the owner's risk and expense. In the event of its destruction or damage from any cause while in the depot of the company, it is agreed that the company shall not be liable to pay any damages therefor. It is agreed, and is a part of the consideration of this contract, that the company will not be responsible for the leakage of liquids, breakage of glass or queensware, *** nor for damages arising to any article carried from the effects of heat or cold. The company will not be responsible for damages on tobacco unless it is proved to have occurred during the time of its transit over this road, and of this notice must be given within thirty hours after the arrival of the same. *** The responsibility of this company as a carrier to terminate on the delivery of freight, as per this bill of lading, to the company whose line may be considered as a part of the route to the place of destination of said goods or packages. In the event of the loss of any property for which the carriers may be responsible under this bill of lading, the value or cost of the same at the time and point of destination is to govern in the settlement for the same." Then followed a description of the goods and packages embraced in the bills of lading,--one lot being marked as destined to Granger, Wyo., to Hugh Doak as consignee, and the other lot being marked as destined to Ogden, Utah, for delivery to S.W. Miller as consignee. The evidence tended to show, likewise, that after the arrival of these several lots of goods at Granger and Ogden they were forwarded to Portland, Or., by the direction of the consignor, Goodman,--the Granger shipment being carried over the Oregon Short Line road to Huntington; the Miller shipment, over the Utah & Northern road from Ogden to Pocatello, and thence over the Short Line road to Huntington. At Huntington both lots were received and carried in the ordinary course of business over the defendant's line of road from Huntington to Portland.

There was no evidence whatever tending to prove the condition of the goods when they arrived at Huntington. The goods were shipped from Wyoming without any bills of lading issued therefor. On the back of the bills of lading issued by the Keokuk & Western road at Kahoka, Mo., the following indorsement appeared: "Please have the goods covered by this B. of L. forwarded to Portland,"--signed, "H. Doak and Dr. Lee Goodman," as to the Granger shipment, and signed, "S.W. Miller and Dr. Lee Goodman," as to the Ogden shipment. The evidence tended to show that the plaintiff had signed all these names. The plaintiff admitted having given directions to the station agents at Granger and Ogden to forward these goods from those places, respectively, to Portland, Or., and that he wrote the following letter on the train: "8-1st, '88. Green River, Wy. R.R. Freight Agent, Ogden, Utah--Dear Sir: You will please forward the following goods to Portland, Oregon: 10 boxes drugs; 7 boxes sundries; 2 boxes liniment,--via McCamman, Oregon Short Line, to Portland. Shipped by Dr. Lee Goodman, Kahoka, Mo., to S.W. Miller, Ogden, Utah, on July 28, '88. If the goods are not at your depot yet, please wire me at Portland on rect. of this, and oblige, Res'p, S.W. MILLER. P.S. Let Frt. Ch's follow goods, etc. P.S. You can authorize agent at Portland, Oregon, to take up the bill of lading or frt. bill I hold, on delivery of goods at Portland, and send same to you at Ogden, etc. Need not have goods uncased, if you can prevent it, at your station, and just forward as directed within this letter."

Plaintiff admitted upon the trial that he wrote this letter, and signed Miller's name to it, while on the train coming west. The condition of the goods at Huntington was unknown. No bills of lading were issued at Ogden or Granger when the goods were forwarded from those points. The goods arrived in Portland in bad condition,--more or less damaged and injured. The plaintiff offered in evidence the way-bills which had been issued by the Union Pacific Railway Company at Granger and at Ogden, and which accompanied the goods to Portland. These way-bills were admitted, with the exception of a certain sentence written in pencil, which was excluded. From these way-bills it appeared that the Hugh Doak shipment of goods when forwarded from Granger, Wyo., was in bad order and condition,--barrels leaking, boxes of glassware rattling, and boxes stained. On the way-bill of the Ogden shipment, issued when the S.W. Miller lot was forwarded from Ogden, there was a notation in lead pencil opposite the stamp-mark of the railway office at Pocatello, Idaho, (but whether made there or elsewhere, it did not appear,) as follows: "All this shipment badly broken up; all boxes broken; cans spilled and injured. Repacked here into 15 boxes. Wt. 1810." This pencil notation on the way-bill was excluded from evidence, as stated heretofore, though the way-bill and its contents, except this pencil notation, were admitted by the court; it having been put in evidence by the plaintiff, having been produced by the defendant on notice from the plaintiff therefor. An exception was taken to the exclusion of the pencil notation on the way-bill, and subsequently, and in the course of the trial, the defendant itself offered the pencil notation, the plaintiff having offered the way-bill itself; and the court again...