Lawrence v. Winona & St. Peter R. Co.

• Decision Date: 01 January 1870
• Citation: 15 Minn. 313
• Parties: JOHN B. LAWRENCE v. WINONA & ST. PETER R. CO.
• Court: Minnesota Supreme Court

15 Minn. 313

JOHN B. LAWRENCE

v. WINONA & ST. PETER R. CO.

Supreme Court of Minnesota.

Appeal by defendant from a judgment of the district court, Blue Earth county.

Mitchell & Yale, for appellant.

Judson Jones, for respondent, claimed—

RIPLEY, C. J.

This action was brought to recover the value of five boxes of household goods, the property of plaintiff, which were in defendants' warehouse at Waseca, in this state, when, on the seventeenth day of March, 1869, the said warehouse, with its contents, was wholly destroyed by fire.

At the trial in the district court for Blue Earth county (at December term, 1869,) the plaintiff had a verdict, and defendants moved for a new trial on the ground that the verdict was not justified by the evidence, and was contrary to law; and, also, of errors in law occurring at the trial, and excepted to by defendants, which motion was denied, and judgment entered on the verdict, from which judgment the defendants appeal to this court.

The following facts appear to have been either proved or admitted. The plaintiff, on the second of March, 1869, at Fort Howard, Wisconsin, shipped said goods on the Chicago & Northwestern Railway, taking the following receipt:

                             "FORT HOWARD, Wisconsin, March 2, 1869
                

"Received from J. B. Lawrence, in apparent good order, by the Chicago & Northwestern Railway Company, to be transported to Watertown, Wisconsin, the following articles, as marked and described below, subject to the conditions and regulations of the published freight tariff of the said company, it being expressly agreed and understood that the said Chicago & Northwestern Railway Company, in receiving the said packages to be forwarded as aforesaid, assume no other responsibility for their safety than may be incurred on their own road.

"Marks and consignee.

                              "J. B. LAWRENCE, Mankato, Minnesota
                

"Description of articles as given by consignee; 5 boxes H. H. goods. W. E. PEAK, Agent."

On the eleventh day of said March the defendants received said goods at Winona from Seavey & Co., the then transportation company between La Crosse and Winona. Defendants were then a corporation duly incorporated under the laws of this state, and the owners of a railroad therein known as the Winona & St. Peter Railroad, extending from Winona aforesaid, to Waseca, aforesaid, and common carriers for hire upon said railroad. There was then a railroad connection between Owatonna, a point between said termini on defendants' road and Mankato, by way of Mendota. It was then the invariable custom of defendants to ship freight marked as consigned to Mankato by way of Waseca, unless it was specially consigned by way of Owatonna and Mendota.

Plaintiff's goods were not so specially consigned, but received by defendants without any special directions given by any one as to the route by which they were to be conveyed, or any direction other than that they were marked, "J. B. Lawrence, Mankato, Minnesota."

Said goods were forwarded by defendants on the twelfth of March, 1869, to Waseca, where they arrived the same evening, and were unloaded and placed in said warehouse, which was the defendants' only freight depot, where they remained without being called for by the consignee, or any other person, till they were destroyed, as aforesaid. The said building was constructed and arranged in the usual manner in which depots or station houses are built in Minnesota.

Defendants gave no notice to plaintiff of the arrival of said goods at Waseca, and there is no evidence tending to show that they knew what his then place of residence was, which appears from the evidence in the case to have been at Chippewa City, Wisconsin.

Defendants' usual course of business as to freight for Mankato was to unload it the same night it arrived, and store it in said warehouse till called for.

Defendants admitted that S. S. Phelps, if produced as a witness, would testify as follows:

"During the year 1868, and about the month of December, and when the western terminus of defendants' road was at Waseca, the defendants, being desirous that there might be established some freight transportation line between said Waseca and Mankato, so as to thereby encourage the consignment of a larger amount of Mankato freight over defendants' road, solicited said Phelps to put on a line of teams, and engage in the transportation business between Waseca and Mankato, and stating as an inducement that if he would do so they would give and deliver to him all `Mankato freight' which might arrive at Waseca over their road, not otherwise ordered or directed by the consignees, provided said Phelps would not charge the consignees or owners of the freight over 60 cents per 100 pounds for transportation from Waseca to Mankato; thereupon the said Phelps put on teams on the route between Waseca and Mankato, and engaged in the business of the transportation of goods and merchandise between these points during the winter last past (1868-1869.) The manner of conducting the business was as follows: Whenever enough of Mankato freight had accumulated in the defendants' depot at Waseca to make at least one load, and which had not been otherwise ordered by the consignees, said Phelps would send his teams to Waseca and call for the said freight. Upon his application defendants' station agent would deliver such freight to him or his teamsters, he signing a receipt therefor.

"The freight money or back charges on such goods due defendants were either paid by or charged to him on defendants' books upon delivery of the goods, he becoming personally responsible to defendants for such freight and charges. The defendants had no control over the teams, or employes of Phelps engaged in said transportation business, nor over the times when he should call for freight. He had no regular times of making trips between Waseca and Mankato, but was in the habit of doing so, when, and as often as, there was freight enough to make a load, or more. The defendants were not to pay Phelps anything, or in any way become responsible to him for the transportation of freight, he having to look for his own pay, and back charges advanced by him to defendants, solely to the consignees or owners of the freight, which he usually collected of them at Mankato, on delivery of the goods.

"Defendants had no interest in nor received any part of the moneys earned in the transportation of freight between Waseca and Mankato, nor did they make any charge for storage on such freight while in their warehouse at Waseca awaiting transportation. Phelps had no warehouse or other place for receiving or storing freight at Waseca, but whenever called for by him it was delivered to him by defendants' station agent, into his wagons directly from the warehouse of defendants, in which it remained stored until so called for. He did not call for or take away any goods or other freight from defendants' warehouse at Waseca, after the arrival of plaintiff's goods at that point, until after the burning of the warehouse or depot, for the reason that there was not enough for a load for a team.

"By `Mankato freight' he means freight marked or consigned to Mankato. Defendants had no interest in getting Phelps to engage in the transportation of goods between Waseca and Mankato, nor any interest in carrying on such business, except incidentally, from the fact that the existence of such transportation line, at reasonable rates, induced more business to come over their road. Phelps' custom was when freight arrived at Mankato, if it belonged to business men in Mankato, to take it directly to their place of business and deliver it; if it belonged to those who had no place of business there, he stored it in Shawbut's warehouse in Mankato."

Upon the foregoing facts the truth of what Phelps would have stated being assumed, we think it has no tendency to prove (as claimed by respondent) that Phelps was an employe of defendants, and his teams a continuation of defendants' transportation line. Further to support the issue in this behalf, however, the plaintiff introduced the defendants' objection thereto, being overruled by the court, testimony of the Mankato warehouseman, Shawbut; of one Palmer, who succeeded him in such business, (for the purpose of proving Phelps' custom, or manner of doing business at Mankato;) also, the declaration of one Mead, defendants' general freight agent; also, the receipt, Exhibit B, and eight papers of like form, dated between May 25 and June 26, 1869.

The material portion of said testimony, with reference to plaintiff's claim, is as follows: Shawbut testified that Phelps hauled goods all winter, and until he (Shawbut) turned over the warehouse to Palmer; that Exhibit B was the usual form of way-bill or receipt which accompanied the goods which Phelps stored with him.

Exhibit B is in the words and figures following:

                  "H. HAMPTON, St. Peter
                               To WINONA & ST. PETER RAILROAD, Dr
                Way Bill 126, |  For transportation of freight from Owatonna
                               >   to Waseca
                From Car 166. |
                           Description                               Adv.
                No. Pack.  of Articles.  Weight.  Rate.  Freight.  Charges.  Total.
                    1.       Stand.        20.     5.    30 cts.   75 cts.   $1.05
                   Teams,        -     -      -     -     -     -     -        .50
                                                                            ______
                                                                             $1.55
                                     "Received payment,
                                               "H. J. WADSWORTH, Agent."
                

He (Shawbut) received these bills of Phelps and paid Phelps and collected them afterwards of the parties. The charge for hauling goods from Waseca was 60 cents per 100 pounds. "I do not remember," he says, "of receiving any letter from H. J. Wadsworth relating to storing goods for defendants. I never received any letter from any agent of defendants concerning the warehousing of goods. There was never any...