Henry v. The Atchison

• Decision Date: 09 July 1910
• Docket Number: 16,643
• Court: Kansas Supreme Court
• Parties: W. B. HENRY, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

109 P. 1005

83 Kan. 104

W. B. HENRY, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 16,643

Supreme Court of Kansas

July 9, 1910

Decided July, 1910.

Appeal from Shawnee district court.

STATEMENT.

IN this action W. B. Henry alleged that the Atchison, Topeka &amp Santa Fe Railway Company undertook to, and did, transport his goods, of the value of $ 2500, from Topeka to Kansas City that when the goods reached their destination and he demanded delivery of the same the railway company wrongfully refused to give him his goods, and that subsequently they were injured and destroyed. Besides a general denial, the railway company answered that it received the goods and promptly carried them to Kansas City, where they arrived about May 28 1903; that Henry was then notified of their arrival, but that he neglected to call for or remove the goods from the station, and that on May 31, 1903, they were damaged by an act of God--the unprecedented flood of 1903--and not by the negligence of the railway company. It was also alleged that if a demand was made for the goods on May 30, 1903, it was done upon a legal holiday, and that the company's freight office was not open for business or the delivery of freight on that day, and, further, that no demand was made for the goods in business hours on any business day. On the first trial judgment was given for Henry, but for errors committed that judgment was reversed. (Railway Co. v. Henry, 78 Kan 490.) The last trial was upon a transcript of the testimony given on the first trial, on which the court made the following findings of fact and conclusion of law:

"FINDINGS OF FACT.

"(1) I find that on or about the 27th day of May, 1903, the said W. B. Henry shipped by the Atchison, Topeka & Santa Fe Railway Company certain household goods and furniture, in and for a valuable consideration, from the city of Topeka to Kansas City, Mo., there to be delivered to the said W. B. Henry.

"(2) That the said property was transported by the Santa Fe railway company from Topeka to Kansas City, Mo., arriving in Kansas City, Mo., upon the 28th day of May, 1903, and that upon the afternoon of May 29, 1903, notice was sent by the said company to W. B. Henry of the arrival of said property, notifying the said W. B. Henry to call and remove the same from the freight house of said company; that W. B. Henry received said notice of the arrival of said property between the hours of twelve and one o'clock upon the 30th day of May, 1903, and immediately, within one hour, went to the proper offices at the freight depot of defendant company, prepared to remove said property, as notified, and then and there demanded of said company said property, and offered to pay all charges thereon, but that the said company did, at the time of said demand, upon the 30th day of May, refuse, fail and neglect to deliver said property to the said W. B. Henry.

"(3) I further find that the said 30th day of May, 1903, was a legal holiday in the state of Missouri, and that the said day, after twelve o'clock P. M., was a legal holiday in the city of Kansas City, state of Missouri, but I further find that the said company's office and place of business was open for the transaction of business, and that said company did not recognize the 30th day of May, 1903, or any part thereof, as a legal holiday at Kansas City, Mo., in connection with the delivery of freight at its said freight depot; that the said company had its place of business open, and was transacting business upon said day, as usual, when Henry called and demanded said property.

"(4) I further find that the market value of said property in Kansas City, upon the 30th day of May, 1903, was in the sum and value of $ 2220.73.

"(5) I further find that upon the 31st day of May there was an extraordinary and unprecedented flood, an act of God, in the Kaw and Missouri rivers, at Kansas City, Mo., and the said property was, on the 31st day of May, wholly destroyed by said flood, while in the freight house of defendant company.

"(6) That upon making application for his shipment of goods to the clerk in the freight office at the time above mentioned, he was informed by the clerk in the freight office of the defendant that he could not obtain the shipment in question on that day, as it was a legal holiday and the cashier was not in the office; plaintiff repeated his demand for the goods and insisted on obtaining the shipment, and told the said employee that he had the change and had come prepared to take the goods, and that he wanted them; plaintiff was not told to call again later in the day, but was informed that he could not obtain the shipment on that day, whereupon plaintiff left the said freight office and did not return or make other demands upon any other person for the shipment on that date.

"(7) That on the 9th day of June, 1903, the plaintiff received from the defendant, and receipted to it for, his shipment of the freight in question in a damaged condition, with the understanding that in so doing he waived no legal right or claim that he might have against the defendant for the ruined or damaged condition of the goods.

"(8) I further find that said property was in the freight house of the said company upon the 30th day of May, 1903, when Henry called for and demanded the same, and the said company could have delivered said property to said Henry, but, without any just reason or proper cause therefor, wrongfully refused and neglected to deliver the same.

"CONCLUSION OF LAW.

"(1) Plaintiff is entitled to recover judgment against defendant company in the sum of $ 2220.73, the reasonable market value of the property destroyed, with interest thereon at the rate of six per cent per annum from May 27, 1903, to date, or $ 2763.48."

The railway company appeals.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. STARE DECISIS--Erroneous Decision on First Review May be Corrected on Second Appeal. Ordinarily a question considered and determined on the first appeal of a case is deemed to be settled and not open to reexamination on a second appeal, but it is not an inflexible rule, and if the prior decision is palpably erroneous it is competent for the court to correct it on the second appeal.

2. STARE DECISIS--Point in the Record of First Appeal Not Considered--Determination on Second Appeal. If the point, though involved in the record of a first appeal, is not brought to the attention of nor considered by the court, its decision then made does not preclude the consideration and determination of the point when presented on the second appeal.

3. PROXIMATE CAUSE--Wrongful Refusal by Carrier to Deliver Goods on Demand--Subsequent Destruction by Act of God. A railway company transported goods to their destination and notified the owner to come and take them away. In response to the notice the owner promptly called at the freight depot, tendered the charges due thereon and demanded the delivery of the goods, but the railway company refused the demand. One day thereafter an unprecedented flood occurred, which damaged the goods. Held, that by the refusal of the demand and the wrongful detention of the goods the railway company held them at its own risk and was responsible for the loss occasioned to them by the flood.

William R. Smith, O. J. Wood, and Alfred A. Scott, for the appellant.

Eugene S. Quinton, for the appellee.

OPINION

JOHNSTON, C. J.:

The appellant contends that as the testimony on which the judgment in question rests was exactly the same as upon the earlier trial the decision on the former appeal necessarily determines the result of this appeal and requires judgment in its favor. If it be assumed that no new elements were brought into the case on the second trial it does not follow that the former decision, right or wrong, is conclusively binding upon this appeal. Ordinarily a question considered and decided on the first appeal is deemed to be settled, and, except for very cogent reasons involving palpable error, will not be reexamined on a second appeal. Some courts hold that a decision, whether right or wrong, is conclusive in all subsequent appeals; but what is called the "law of the case" is not an inflexible rule which requires a court blindly to reiterate a rule of law that is clearly erroneous. In C. B. U. P. Rld. Co. v. Shoup, 28 Kan. 394, the court, after stating generally the importance of stability and uniformity in the interpretation. of the law, said:

"We do not understand that the rule that a decision once made becomes the established law of the case is a cast-iron rule, and incapable of relaxation in any event. Cases may arise in which it will be very clear that the first decision was erroneous, that not only in the case at bar will wrong result from adhering to the decision but also other interests through the state will be imperiled; hence we do not doubt the power of the court to reconsider and reverse a prior decision in the same case." (p. 395.)

In the late case of Railway Co. v. Merrill, 65 Kan. 436, it was insisted that a ruling on the first appeal, however incorrect, was conclusive on the second; but the court again refused to sanction the theory that it was required to readopt and repeat a decision founded in serious error. Mr. Justice Smith answered the contention that a decision once announced by the supreme court must be adhered to by saying:

"This would come to us with more force if we were not now considering the same case with the same parties before the court. If an erroneous decision has been made, it ought to be corrected speedily, especially when it can be done before the litigation in which the error has been committed has terminated finally. We are fully satisfied that the rule of...