Grinnell-Collins Co. v. Chi., M. & St. P. Ry. Co.

• Decision Date: 21 January 1910
• Citation: 124 N.W. 377,109 Minn. 513
• Court: Minnesota Supreme Court
• Parties: GRINNELL-COLLINS CO. v. CHICAGO, M. & ST. P. RY. CO. et al.

109 Minn. 513

124 N.W. 377

GRINNELL-COLLINS CO.

v.CHICAGO, M. & ST. P. RY. CO. et al.

Supreme Court of Minnesota.

Jan. 21, 1910.

Appeal from District Court, Hennepin County; John Day Smith, Judge.

Action by the Grinnell-Collins Company against the Chicago, Milwaukee & St. Paul Railway Company and others. Verdict for defendants. From an order granting a new trial, the defendant Illinois Central Railway Company appeals. Reversed, and judgment directed for appellant.

Syllabus by the Court

Where property is consigned to a commission merchant for sale without any previous contract or any advances made to the shipper, the consignee acquires no general or special ownership in the property before its delivery to him, and cannot maintain an action to recover for damages to the property in transit.

Chapter 466, p. 715, Gen. Laws 1907, does not change the rule that an action may be prosecuted only by a real party in interest. Richard & Coe, for appellant.

Walter Holsinger, for respondent.

O'BRIEN, J.

A car load of strawberries was consigned at Independence, La., to the plaintiff in Minneapolis for the purpose of sale and distribution, on commission, for the consignor's account. Alleging that the fruit was delivered in good condition to the Illinois Central Railroad Company, the initial carrier, April 9, 1907, and because of defendant's negligence arrived in a decayed, bruised, and unmarketable condition at Minneapolis April 15, 1907, the plaintiff commenced this action against both of the carriers handling the shipment.

After its arrival the fruit was taken by different commission firms in Minneapolis, each of which disposed of the portion taken by it, and before the commencement of this action accounted directly to the shipper. Mr. Metz, the secretary of the plaintiff, testified: ‘Q. Supposing there was a loss on the shipment of these berries, was that loss to be borne by the men at the other end of the line, who shipped them? A. We would only lose the difference of commission, whatever the commission would be in the increased sale; that is all. Q. In other words, Mr. Metz, the plaintiff in this case, Grinnell-Collins Company, was simply the broker to whom these berries were shipped? A. We are the agents of these people. Q. You charge a commission? A. Yes, Sir. Q. For your services in the sale of the berries? A. A commission; yes. Q. Based upon the amount received for the berries? A. Yes, sir. Q. You are termed commission merchants? A. Yes, Sir. Q. Selling on commission? A. Yes, sir.’ When recalled he said: ‘Thirty-eight cases of quarts and 28 1/2 or 25 1/2 cases of pints were put in this car for our firm, the plaintiff in this suit. We sold those for $152.48, and that is all the berries our firm, the plaintiff, received from this car. We remitted to the shippers the proceeds of these berries, less our commission and freight charges. Q. So that there is still nothing due your firm, the plaintiff, from the shippers on account of them? A. Only the increased commission that we would get by having a better sale. Q. These berries were consigned to your firm on a commission basis? A. Yes, sir. Q. Based upon proceeds? A. Yes, sir. Q. You have stated the amount which your firm received? A. Yes sir. Q. You took out your commission and the freight charges, and remitted the balance to the shippers at the other end of the line? A. Yes, sir. Q. You make no claim on account of this freight bill? A. No, sir; whatever that was has all been paid.’

Mr. Callendar, of the firm of Callendar Vanderhoof Company, testified to the receipt by his firm of some of the fruit, saying that part of the berries in the car were received and sold by his firm, an account of which was kept and accounted for to the shipper at the other end of the line. Mr. Gamble, of the firm of Gamble Robinson Commission Company, testified to the receipt of some of the fruit and the report to the shippers after the sale. After this evidence was received a motion to dismiss was denied. After all the evidence was in, the defendants requested an instruction in their favor, which was also denied. The jury returned a verdict in favor of both defendants, and a new trial was granted for errors of law as to the defendant Illinois Central Railroad Company; the action having been dismissed as to the Chicago, Milwaukee & St. Paul Railway Company.

A cosideration of the claim that the plaintiff had no interest or ownership, general or special, in the property damaged, has led us to the conclusion that the position of the appellant in that respect must be sustained. Section 4053, Rev. Laws 1905, requires that, except when otherwise expressly provided by law, every action shall be prosecuted in the name of the real party in interest. Obviously the actual owner of property is a proper plaintiff; but another, although not the owner, may have rights in or may bear a relation to the property which will authorize an action by him for its possession, its value, or for damages done to it. The statute was not intended to obstruct the administration of law, but to bring before the court a party rightfully interested in the litigation, so that only real controversies be presented and judgments, when entered, be binding and conclusive. Therefore, where the plaintiff has possession, as agent, factor, or bailee, he has a special ownership in the property, and if it is taken from him, or damaged by the wrongful act of another, he may maintain an action for the loss. Brown v. Shaw, 51 Minn. 266, 53 N. W. 633, and cases cited.

The fruit claimed to have been damaged in transit was consigned to plaintiff for sale on commission. The evidence does not indicate any special contract with reference to it. Each of the commission merchants in Minneapolis who handled any part of the shipment accounted directly to the shipper. No advances were made by the plaintiff to the owner, except the payment of the freight charges after the fruit had arrived in Minneapolis. Before the commencement of this suit the plaintiff had fully accounted to the shipper. When asked as to anything still due the plaintiff, Mr. Metz said, ‘Only the increased commission that we would get by having a better sale.’ This was not an action to recover lost profits by plaintiff in its own right, but was to recover, as owner, damages for injury to personal property, and must be determined upon that theory.

The consignee of property delivered to a common carrier for shipment is presumed to be the owner, but the presumption may be overcome by evidence. Dyer v. G. N. Ry. Co., 51 Minn. 345, 53 N. W. 714,38 Am. St. Rep. 506;Benjamin v. Levy, 39 Minn. 11, 38 N. W. 702. It is insisted that the consignee has always such special ownership in the property that he may sue for damage to it. Support for this contention is found in the language used in Boston & M. R. R. v. Warrier Mower Co., 76 Me. 251, where it was said that an agent to whom goods were consigned to be sold upon a specified commission might maintain an action against the carrier to recover, not only his own damages, but such as accrued to the general owners. In that case the general owner and the plaintiff had a definite contract, under which the plaintiff agreed to pay the freight and sell the goods for a specified commission. Before the final determination all the parties...