Knapp v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 23 February 1916
• Citation: 156 N.W. 1019,33 N.D. 291
• Court: North Dakota Supreme Court
• Parties: KNAPP v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

33 N.D. 291

156 N.W. 1019

KNAPP

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of North Dakota.

Feb. 23, 1916.

Syllabus by the Court.

The granting of a new trial after a verdict has been directed by the court is a matter which is largely within the discretion of the trial judge, and such discretion will not, as a rule, be interfered with unless no conclusion can be drawn from the evidence except one favorable to the party for whom the verdict was found, and that the errors, if any, which were committed by the trial judge, were clearly not prejudicial.

Error was committed by the trial judge in refusing to permit further cross-examination, under chapter 4 of the Laws of 1907, of one who was claimed to be a managing agent of a railway company, on the ground that the court could not see that the plaintiff could show such person to be a managing agent, after such witness had testified that he had been in the employ of the defendant company for 21 years, that during such time he had been operator, station agent, trainmaster, live stock agent, freight transfer agent, assistant superintendent, and general agent; that at the time of the trial he was general agent of the company, and as such general agent had charge of the business of soliciting freight up and down the line of the company and solicited the freight from the plaintiff during the times covered by the suit; and, also, that he had taken part in trying to get a settlement for the plaintiff.

Where the freight rate from a certain point which lies beyond the terminus of a railway company and across a lake to certain points upon the line of the railway is advertised in the tariffs of the company as being 22 cents per 100 pounds, such freight being usually transported across the lake on the boats or barges of an independent company to the point of beginning of said railway company, and the rate from such terminal point to the points of destination being advertised as 17 cents, it is within the ostensible authority of a general agent of such railway company, who prior to such time has induced the plaintiff to lease elevators across said lake, telling him that he could have a 22-cent rate from such point, and who prior to such time negotiated with the boat company to the end that proper transportation could be furnished to such point, after the lake has frozen up and it is impossible to transport the grain by said barges or boats and after a 22-cent rate has been given to such plaintiff, to agree with such plaintiff that, if he will haul the grain to the railway station himself for further transportation, the company will pay him 5 cents per bushel for such hauling.

Where a railway company has a station on the shores of a lake, and across said lake are grain elevators from which it has been the custom of the company to give a rate of 22 cents per 100 pounds to terminal points upon its line within another state, it being the custom to transport the grain across said lake upon the boats of an independent company, and when the railway company has given to the owner of such elevators such 22-cent rate and agreed to transport the grain from such elevators to the points of destination for the said sum, but later on account of the freezing of the waters of the lake it becomes impossible to operate the boats, it is not a violation of section 2 of the Interstate Commerce Act of June 29, 1906, c. 3591, 34 Stat. 587 (U. S. Comp. St. 1913, § 8569) which prohibits unlawful discrimination, for such railway company to agree with the shipper that, if he himself will haul the grain across the lake to the station of the company, it will pay to such shipper 5 cents a bushel for such hauling, provided that such rate is not an unreasonable compensation for such hauling, and the court will not hold such allowance of 5 cents per bushel to be unreasonable in the absence of proof or of a ruling of the Interstate Commerce Commission to that effect.

Additional Syllabus by Editorial Staff.

An “initial carrier” is the one contracting with the shipper, and is not necessarily the one whose line constitutes the first link in transportation.

Appeal from District Court, Burke County; Buttz, Judge.

Action by D. C. Knapp against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company, a corporation. From an order setting aside judgment for defendant on directed verdict and granting new trial, defendant appeals. Affirmed.

This action was brought to recover $481.83 and interest claimed to be due under a contract by which the defendant agreed to pay the plaintiff 5 cents a bushel for hauling wheat from Boscurvis, Saskatchewan, Canada, and Paisley and Newport, N. D., to the depot or shipping tracks of the defendant railway company at Kenmare, N. D. Kenmare was the starting point of the railway company, and Boscurvis, Paisley, and Newport were situated some distance north of that point on the Des Lacs Lake. It is admitted that 8,836 bushels of wheat were hauled by the plaintiff and delivered to the railway company for shipment, and that the wheat was shipped over the defendant's road from Kenmare to points in Minnesota, and that therefore the contract of shipping was an interstate contract. At the close of the taking of testimony, a motion was made by the defendant for a directed verdict on the ground that there was no evidence showing the authority of one Cole to make the contract in question, and upon the further ground that the contract, if made, would be a violation of the interstate commerce law which would subject both the plaintiff and the defendant to prosecution. The court granted the motion and directed a verdict for the defendant, and thereupon judgment was entered in favor of the defendant dismissing the action. Thereafter the plaintiff made a motion for a new trial upon the following grounds: (1) That the court erred in sustaining defendant's objection to the examination of the witness W. A. Cole, general agent for the defendant, on his cross-examination; (2) that the court erred in advising and directing the jury to return a verdict in said action in favor of the defendant and against the plaintiff; (3) that the court erred in sustaining defendant's objection to different questions propounded by the plaintiff to witnesses through the trial; (4) that the court erred in overruling the plaintiff's objections to different and divers questions propounded by the defendant. This motion for a new trial was granted, and this appeal is taken from the order granting the same.

Fisk, C. J., dissenting.

Palda, Aaker & Greene, of Minot, for appellant. Geo. A. Gilmore, of Williston, and F. B. Lambert, of Minot, for respondent.

BRUCE, J. (after stating the facts as above).

We have repeatedly held that the granting of a new trial for insufficiency of the evidence to support a verdict is within the trial court's discretion unless no conclusion can be drawn from the evidence except one favorable to the party for whom the verdict was found. Malmstad v. McHenry Telephone Co., 29 N. D. 21, 149 N. W. 690. The same rule should, of course, apply where the trial court has directed a verdict and later sets it aside believing that he erred in his decision.

[1] The first point urged by respondent as a justification for the action of the trial judge in granting a new trial is that such judge erred in unduly limiting the cross-examination under the statute of the witness Cole, and that the testimony, even as introduced and without the benefit of the cross-examination, showed the agency of the said Cole for the defendant railway company, and therefore that, if the trial judge directed the verdicton the assumption that no agency had been proved and therefore no contract between the said railway company and the said plaintiff, he certainly committed no error in setting aside such order and granting a new trial.

The second point urged is that the trial court erred in his construction of the Interstate Commerce Act of June 29, 1906, and that if he directed the verdict on account of the provisions of such act no error was committed in reversing the order and granting a new trial. The judge's memorandum granting a new trial makes clear his position in the case. It is as follows:

“Judge's Memorandum. The order above is made on both of the grounds on which the motion is based, to wit, errors of law occurring at the trial and insufficiency of the evidence to justify a directed verdict; the court's position being: That it was necessary to plead and prove the statute relied upon to defeat the claim sued upon, and that even though the question of pleading and proof be waived and the Interstate Commerce Act of June 29, 1906, be construed as alleged and proved, still the case comes within that portion of section 15 of said act found on page 266 of the 1909 Supplement of the Federal Statutes Annotated, which reads as follows: ‘If the owner of property transported under this act directly or indirectly renders any service connected with such transportation, or furnishes any instrumentalities used therein, the charge and allowance therefor shall be no more than is just and reasonable.’ [U. S. Comp. St. 1913, § 8583.] That in construing said act the court holds that it is necessary for the party relying upon such wording of said act to allege and prove that the services connected with such transportation and instrumentalities used therein, furnished by the plaintiff, was unreasonable. That no proof of this kind was offered or received, and that in effect affirmative evidence was offered by the plaintiff in the shape of published schedules of said defendant showing that the charge made by the plaintiff was exactly that charge contained in such schedule as being a portion of the through rate to go to the Lake Barge Company as their proportionate share of the published tariff, and the presumption being that such proportional charge was reasonable. Further, the court's position is that, under the circumstances...