Jukes v. North Am. Van Lines, Inc.

• Decision Date: 06 April 1957
• Docket Number: No. 40261,40261
• Citation: 309 P.2d 692,181 Kan. 12
• Parties: Richard H. JUKES, Appellee, v. NORTH AMERICAN VAN LINES, Inc., a Corporation, Appellant.
• Court: Kansas Supreme Court

Page 692

309 P.2d 692

181 Kan. 12

Richard H. JUKES, Appellee, v. NORTH AMERICAN VAN LINES, Inc., a Corporation, Appellant.

No. 40261.

Supreme Court of Kansas.

April 6, 1957.

Syllabus by the Court.

1. In the absence of proof to the contrary the liability of a common carrier engaged in interstate commerce for loss sustained in transporting property is presumed to be its liability under the common law.

2. A common carrier engaged in interstate commerce asserting a liability for loss, less than that imposed by the common law, has the burden of proof in establishing a contract for such limitation of liability in compliance with the terms of the Federal Statute cited in the opinion.

3. Where a wrongful act is not done jointly by the persons from whom compensation is sought, but is the deed of one or the other and not of both, a settlement with and discharge of the one does not affect the cause of action against the other.

4. In an action for damages caused in crating, storing and transporting an interstate shipment of household goods and furniture, and for damages caused by the unreasonable dealy in making delivery of said shipment, it is held that the trial court did not err in excluding evidence which was not prejudicial to the rights of the defendant.

5. Custom and usage may be shown to elucidate or explain something ambiguous in a contract, but where a contract is clear and free from ambiguity and the defendant did not plead the custom or show that the custom was known to the plaintiff, such evidence was properly excluded.

6. In a civil action this court will not take judicial notice of a department regulation of the Federal Government. To be admissible the regulation must be pleaded by quoting its language or stating the substance of its provisions, and in the absence thereof the trial court did not err in refusing to admit the regulation in evidence.

7. Where no objection is made to the giving of an instruction during the trial and no request was made for its modification or clarification and such instruction is not clearly erroneous, a litigant cannot be heard to complain on appeal.

8. A party who desires an instruction upon some particular question not included in the general charge to the jury should request that the trial judge give such instruction. Where no such request is made and the case is fairly presented to the jury he cannot afterwards complain that the instruction was not given.

9. On review in the Supreme Court specifications of error not argued or briefed must be regarded as abandoned.

Edward E. Pedroja, Eureka, was on the briefs for appellant.

Thos. C. Forbes, Harold G. Forbes and George Forbes, Eureka, were on the briefs for appellee.

SCHROEDER, Justice.

This is an action to recover damages from a commercial transportation company caused by the unreasonable delay in delivering household goods and furniture and for damages caused in crating, storing and transporting the same from Niceville, Florida, to Eureka, Kansas. A verdict was returned in the sum of $622.14 upon which judgment was entered. The defendant has appealed from the judgment and all other adverse rulings.

The appellee, Richard H. Jukes, hereinafter referred to as the plaintiff, filed his action against the North American Van Lines, Inc., an Indiana corporation, and L. R. Burnham, doing business as Burnham's Van Service. Service was not obtained upon the latter, and the action was dismissed against this defendant in the lower court. The appellant, North American Van Lines, Inc., will be hereinafter referred to as the defendant.

The plaintiff for his cause of action against the defendant alleged that on the 16th day of July, 1954, the defendant, by its agents and servants, entered into an oral contract with the United States Air Force through 1st Lt. Raymond H. Gaylor, the Commercial Transportation Officer at Eglin Air Force Base, Florida, whereby the defendant agreed to remove all of the household goods and furniture of the plaintiff, who at said time was a member of the United States Air Force, from the plaintiff's residence in Niceville, Florida, and store the same until such time as notice was given by the plaintiff to deliver such household goods and furniture to the new residence of the plaintiff in Eureka, Kansas, and that upon receiving such notice the defendant would transport said household goods and furniture to the plaintiff's new residence. The plaintiff then further alleged that the defendant took possession of the household goods and furniture on the 19th day of July, 1954, was notified on the 12th day of August, 1954, that the defendant should deliver his household goods and furniture to his Eureka, Kansas, address forthwith; and that said household goods and furniture were not delivered to the plaintiff's Eureka, Kansas, residence until the 29th day of September, 1954, by Burnham's Van Service. Plaintiff alleged in his first cause of action that by reason of the failure of the defendant, North American Van Lines, Inc., to deliver the household goods and furniture in accordance with the terms of their agreement, the plaintiff was required to make expenditures in the amount of $565.04 which he would not otherwise have been required to make had the household goods and furniture been delivered without delay after having been given notice on the 12th day of August, 1954. Plaintiff further alleged in a second cause of action that while the household goods and furniture were in the possession and under the control of the defendant the furniture was extensively damaged; that said damage occurred at a time unknown to and without the fault of the plaintiff, and as a result of the acts of omission or commission on the part of the defendant; and that as a result thereof plaintiff was damaged in the sum of $230.90.

Insofar as is material herein the defendant's answer specifically denied that it was liable to the plaintiff for any damage to the household goods and furniture for the reasons that the defendant, North American Van Lines, Inc., did not transport any of said household goods and furniture, and for the further reason that the plaintiff had prior to the action made settlement for the damages alleged by the plaintiff with L. R. Burnham, doing business as Burnham's Van Service, who transported such household goods and furniture. The defendant further denied generally each and every other allegation in the plaintiff's petition.

Generally the evidence of the plaintiff was consistent with and in support of the allegations in his petition. Concerning the contract the plaintiff's testimony disclosed that a Mr. Broxson, manager of the branch office of the North American Van Lines Inc., defendant, came to his residence in Florida where they agreed upon the storage and transportation of plaintiff's household goods and furniture, it being understood by Mr. Broxson that the defendant was to be paid by the government and that the household goods and furniture were to be stored until such time as the plaintiff could find a house in Eureka, Kansas, at which time plaintiff was to notify the defendant in Florida and the defendant would immediately ship the household goods and furniture to the plaintiff.

Plaintiff admitted that subsequent to bringing this action he received $73.80 from Burnham's Van Service for damage to his household goods and furniture admittedly caused by Burnham's Van Service in transporting said household goods and furniture, and that the $73.80 reduced the amount of his uncompensated damages to the household goods and furniture to a balance of $157.10.

A furniture man who inspected plaintiff's household goods and furniture testified on behalf of the plaintiff that it appeared plaintiff's furniture had been water-soaked, stored in a location of high humidity, and had been damaged from mildew, in addition to breakage in handling.

After hearing all the evidence admitted by the court and in due course of the trial, the jury returned a verdict for the plaintiff in the sum of $465.04 on his first cause of action, that being $100 less than requested by the plaintiff in his second amended petition, and for the sum of $157.10 on his second cause of action, that being the total sum requested in the second cause of action less the $73.80 paid by Burnham's Van Service. Judgment was entered. In due course defendant's motion for a new trial, setting forth each and every statutory ground, was filed and overruled.

The questions to be determined by this court are limited. Specifications of error assigned by the defendant to the lower court's order overruling its motion to strike, its motion to make definite and certain, and its demurrer to the second amended petition of the plaintiff was neither been briefed nor argued, hence they must be regarded as abandoned. Collins v. Wichita Transportation Corp., 177 Kan. 677, 679, 281 P.2d 1102; Balin v. Lysle Rishel Post No. 68, 177 Kan. 520, 521, 280 P.2d 623; McKay v. Parker, 176 Kan. 526, 529, 271 P.2d 245; Wingerson v. Tucker, 175 Kan. 538, 540, 265 P.2d 842; State v. Anderson, 172 Kan. 402, 404, 241 P.2d 742; See West's Kansas Digest, Appeal & Error, k1078(1); Hatcher's Kansas Digest (Rev.Ed.), Appeal & Error, § 185. The scope of this review is therefore limited to the trial errors hereafter discussed, and to the question as to whether an acceptance of payment for damages from Burnham's Van Service, admitted by the plaintiff, constitutes a settlement which will bar plaintiff's recovery for the balance of the damages from the defendant, North American Van Lines, Inc.

It is well to digress at this point to show the confusing manner in which the defendant presented its case not only in the lower court but on review to this court. This information will also indicate the nature of the defendant's evidence and its theory in defense. The defendant in its cross-examination of the plaintiff produced a document referred to as defendant's Exhibit 1 and called it...