McGregor v. Oregon R. Co.

• Decision Date: 28 January 1908
• Citation: 50 Or. 527,93 P. 465
• Parties: McGREGOR v. OREGON R. CO.
• Court: Oregon Supreme Court

93 P. 465

50 Or. 527

McGREGOR v. OREGON R. CO.

Supreme Court of Oregon

January 28, 1908

Appeal from Circuit Court, Union County; T.H. Crawford, Judge.

Action by L. McGregor against the Oregon Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Arthur C. Spencer, Jas. G. Wilson, and W.W. Cotton, for appellant.

J.D Slater, for respondent.

KING C.

This is an appeal by defendant from a judgment in favor of plaintiff for $900 damages for the loss, by fire, of certain household goods and bar supplies, used by him in the hotel business. The goods were left by plaintiff for shipment with defendant's agent at North Powder, Or., on February 9 1906, and directed to be shipped to him at Elgin in the county named, with the view of having them transported from there by wagon a distance of 60 miles into Wallowa county, to which place he was removing. The goods reached Elgin about noon on February 12th following, and were left in the car in which they were shipped in front of the Elgin Forwarding Company's warehouse, which, from causes unknown, took fire during the night and spread to the car near by containing plaintiff's freight, destroying the goods. It is alleged that no receipt, bill of lading, or other instrument in writing was issued to the shipper thereof at the time the goods were shipped, but conceded that a few days after the fire he received a bill of lading with plaintiff's name thereon, which had been signed by the defendant's agent, who claims he was authorized to do so by plaintiff.

After the argument, and after notice thereof having been given in this court, counsel for defendant applied to the court below for permission to have the bill of exceptions amended nunc pro tunc to include the bill of lading and other matters inadvertently overlooked in preparing the bill of exceptions in the first instance. After due notice of the proposed amended bill it was signed by the judge of the circuit court as of the same date as that of the first one filed. Counsel for plaintiff moves to strike this amended bill from the files stating as a reason therefor that the lower court had no authority, power, or jurisdiction to authorize the amendment in the case after the term at which the action was tried had expired, and that the application to amend shows there was no mistake made by the court in signing or approving the original bill of exceptions, and that it appears that the defect arises merely from certain matters not having been included therein, but now desired, and that the oversight was that of counsel and not of the court. In State v. Estes, 34 Or. 196, 205, 51 P. 77, 52 P. 571, 572, 55 P. 25, Mr. Justice Wolverton, after observing that some states, including the United States Supreme Court, have adopted a rigid rule as respects amendments to a bill of exceptions after having been filed in the appellate courts, announces as a rule of this court that: "A bill of exceptions, once settled and signed and properly filed, becomes a part of the record in the case to which it relates, and stands precisely upon the same footing as any other record," and that "if, however, a bill of exceptions, through inadvertence or mistake has been so made up as not to fairly and truly recite or represent what it purports to show as having actually transpired during the course of the proceedings, it may, by order of the court, entered nunc pro tunc, upon proper notice, be so amended at a subsequent term as that it will accord with the real facts"; further stating: "We incline strongly to the more liberal practice as being better suited to subserve the ends of justice, and are therefore constrained to adopt it." Measured by the rule thus announced, and finding that the original bill of exceptions as filed purports to contain the matters included in the bill as amended, it follows that the court, in approving and signing the amended bill of exceptions, acted within its powers. Nor could it be material that the oversight upon which the amended bill was sought appears to be that of the attorney. It is sufficient if it appears that the matters were omitted by the inadvertence of either the court or counsel preparing the bill; for, if omitted, it is to be presumed that the court overlooked it. Although it has become the practice, and a commendable one, for the counsel to prepare and submit the bill of exceptions to the court for its approval, yet, under B. & C. Comp. §§ 169-172, inclusive, it is presumed that the court keeps the record of the trial and prepares the bill of exceptions when the case may be appealed, from which it follows that from whatever cause the oversight may have occurred it is in law the error of the court before which the cause may have been tried, and on having its attention called thereto, after notice seasonably made to those interested, the court has power to correct the bill of exceptions so as to conform to the facts intended to be included therein. It clearly appears, however, from the amended bill presented, and the court's certificate appended thereto, that it is intended to supersede the original bill, and to include all matters to be considered here, and it will be so treated.

In this connection counsel for plaintiff urge that the bill of exceptions, on account of containing more than sufficient testimony to explain the errors assigned, and not having stated separately and distinctly the evidence intended to show the application of the rulings of the court, etc., does not come within the rule of this court, as required in Hedin v. Suburban Ry. Co., 26 Or. 155, 37 P. 540, and subsequent decisions on the subject. Owing to the conclusion we have reached on the merits of the controversy, a consideration of this point becomes unnecessary. Steiger v. Fronhofer, 43 Or. 178, 72 P. 693.

This action is based upon the common-law liability of the defendant, which, after denying any negligence on its part sets up four defenses: (1) Exemption from liability, in case of fire, by special contract with plaintiff; (2) that, if liable at all, it is responsible as a warehouseman only; (3) that by a contract with plaintiff its liability is limited to $5 per hundred weight for the household goods, and 50 cents per gallon for the liquors shipped, and that prior to the shipment the rates under which the goods were shipped had been established by the defendant for their transportation upon the character and value thereof, a higher rate being charged for goods shipped at the risk of the carrier, and a lower rate for goods shipped at the risk of the consignee; (4) estoppel by reason of plaintiff having subsequently received the bill of lading, and having forwarded it to defendant, with his claim for damages. The defense of estoppel was stricken out on motion of plaintiff as being sham, frivolous, redundant, and surplusage; but the other defenses were put in issue by the reply. It is urged first that the court erred in striking out the plea of estoppel. An examination of the averments discloses no facts alleged in support thereof, except such as might have been established under the other defenses relied upon. Again, the plea, as given, contains no allegation of facts showing that defendant acted upon the contents of the receipt or bill of lading to its prejudice, or that it was in any manner misled by anything done by plaintiff in reference thereto, all of which were essential to estop plaintiff from asserting his claim against the company. Haun v. Martin, 48 Or. 304, 86 P. 371. There is also testimony tending to show that plaintiff received no receipt, bill of lading, or other instrument from defendant until after the fire; that the shipment was made with no understanding between them in reference thereto or as to the contents thereof, all of which was submitted to and passed upon by the jury, as to which facts their verdict is conclusive. And there is testimony from which it could reasonably be inferred that the bill of lading was first wanted by the plaintiff and his agent in order that, by furnishing a means of identification thereof, they could more conveniently procure the goods from the agent at Elgin, and that it was not forwarded to that point until after the loss occurred. McGregor denies ever signing the instrument, and his testimony is broad enough to indicate that no authority was given to any one else to affix his name thereto. When he presented to the company his claim for the loss, he sent no bill of lading, nor did he state upon what theory his claim was based--whether upon the common-law liability of the company as a common carrier, or upon the special and written contract. So far as disclosed by the record, this shipping receipt was sent to the company as a matter of convenience for the purpose of identifying the property lost. On receipt of the demand for damages from plaintiff's attorney the company requested that the shipping receipt be sent in conformity with their rules in such cases, and it was evidently sent under this request. The claim was disallowed by the company, the receipt returned to plaintiff's attorney, and this action brought, not under the special contract here relied upon by the company, but upon its common-law liability. In this respect this case is unlike those cited by appellant, where the actions were brought upon the contract disclosed by the receipts, bill of lading, etc., and where an attempt is made at the trial to shift the character of the claim. It will be observed in the cases cited, in which this question was fully considered, that the shippers received their bills of lading at the time of the shipment, and not after the loss, as in this case, and that when so received they either expressly or impliedly ratified the contents thereof. There is evidence...