Manley Brothers v. Boston & Maine Railroad And Crystal Springs Ice Co.
| Decision Date | 06 May 1916 |
| Citation | 97 A. 674,90 Vt. 218 |
| Parties | MANLEY BROTHERS v. BOSTON & MAINE RAILROAD AND CRYSTAL SPRINGS ICE COMPANY |
| Court | Vermont Supreme Court |
Special Term at Brattleboro, February, 1916.
TROVER for the loss of a part of a shipment of goods. Plea, the general issue. Trial by jury at the September Term, 1914 Windham County, Waterman, J., presiding. Verdict for the plaintiff. The defendant excepted. Neither exhibit referred to in the opinion was attached to either deposition.
Judgment reversed and cause remanded. If the plaintiffs do not apply for leave to amend their declaration so as to conform to the views herein expressed, let judgment be entered for the defendant.
E W. Gibson, W. D. Smith and Barber & Barber for the defendants.
A V. D. Piper for the plaintiff.
Present: MUNSON, C. J., WATSON, HASELTON, POWERS, AND TAYLOR, JJ.
This is an action of trover to recover the value of certain property shipped from Detroit to the plaintiffs at Brattleboro.
The evidence tended to show that the plaintiffs ordered of the Ford Motor Co. of Detroit a bill of goods which included six automobile radiators. That when the shipment arrived at Brattleboro over the defendant railroad's line, and was checked up with the packing slip which came with it, it was short the six radiators covered by the order,--all the other goods shown by the packing slip and included in the order being received. The original bill of lading, dated June 21 1912, was produced at the trial and showed the receipt by the initial carrier of three boxes of auto engine parts weighing 275 pounds, consigned by the Ford Motor Co. to the plaintiffs. The way-bill was also in evidence; it covered three boxes of auto engine parts, weighing 275 pounds, and bore upon its face evidence that all three of these boxes arrived at Brattleboro.
The evidence in behalf of the railroad company tended strongly to show that the three boxes were delivered to one Goddard, who was a dray-man employed by the Crystal Springs Ice Company. This company did the plaintiffs' trucking and was authorized to receive and receipt for their freight. The plaintiffs' evidence tended to show that they only received two of the boxes and that the third box never came into their possession. The evidence in behalf of the Ice Company tended to show that it delivered to the plaintiffs all the freight it received from the Railroad Company, and if it received the three boxes it delivered them. The case was somewhat unusual in that the plaintiffs did not claim a recovery against both defendants, but insisted that one or the other was liable. For the purpose of showing a delivery of these radiators to the initial carrier at Detroit, and their subsequent receipt by the defendant railroad company in the course of the transit, the plaintiffs offered the depositions of James Johnson and George Grimes, and these were admitted subject to exception.
Johnson testified that he packed the six radiators specified in the packing slip in a box, and delivered the slip "to the desk," according to custom.
Grimes was a shipping clerk. He testified that he delivered the goods covered by the bill of lading to the Lake Shore Railroad, the initial carrier.
It is urged in support of the exception to these depositions, that there is nothing to indentify the papers shown to the deponents as the same papers used as exhibits in the trial. But the packing slip shown to Johnson and the bill of lading shown to Grimes, which were used as exhibits below and so marked by the reporter, bear evidence on their faces that they are the papers used by the deponents. They are marked "Ex. No. 1. F. C. D. " and "Exhibit No. 2, F. C. D.," respectively. These letters are the initials of the name of the magistrate before whom the depositions were taken,--F. C. Dewey. And a comparison with his signature indicates that they were endorsed on the papers by his own hand. The identification might properly have been made stronger, but it was sufficient to warrant the admission of the depositions.
It appeared from the cross-examination that these deponents had no recollection of the matters testified to, but gave their evidence relying wholly upon what appeared upon the papers shown them and the usual course of business in that establishment.
The only importance there is to Johnson's testimony is found in the statement that he packed the six radiators in a box. That radiators were always so packed, and that he had packed every radiator shipped out by the Ford Company during the three years preceding the date of his deposition,--never missing a day--afforded sufficient basis for his testimony.
Grimes only testified that he delivered the three boxes mentioned in the bill of lading to the railroad company. This was sufficiently shown by the bill of lading itself, and is not denied. So if any error was committed in receiving his deposition, it was entirely harmless.
But in order to charge one in an action of trover, something more than a mere non-feasance must be shown. Farrar v Rollins, 37 Vt. 295; Bailey v. Moulthrop, 55 Vt. 13; Andrews v. Carl, 77 Vt. 172, 59 A. 167. A conversion consists in appropriating another's property to one's own use, or its destruction, or in exercising dominion over it in exclusion or defiance of that other's rights, or in withholding the possession from him under a claim inconsistent with his rights. Tinker v. Morrill, 39 Vt. 477, 94 Am. Dec. 345; Eddy v....
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