Mitsui v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 13 January 1913
• Docket Number: 2,085.
• Citation: 202 F. 26
• Parties: MITSUI et al. v. ST. PAUL FIRE & MARINE INS. CO. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

202 F. 26

MITSUI et al. v. ST. PAUL FIRE & MARINE INS. CO. ^[1]

No. 2,085.

United States Court of Appeals, Ninth Circuit.

January 13, 1913

Harrington Bigham & Englar, of New York City (Howard S. Harrington, of New York City, of counsel, and Oscar R. Houston, of New York City, on the brief), for plaintiffs in error.

F. R Wall, of San Francisco, Cal., for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON. District judge.

WOLVERTON District Judge.

This is an action to recover for freight advanced by the assignor of the plaintiff for carriage and transportation of certain cotton from points in Oklahoma and Indian Territory to Tacoma and Seattle, Wash. The complaint contains 38 counts, and is based upon 19 different shipments of cotton from points in Oklahoma and Indian Territory to Kobe and Yokohama, Japan. The cotton was carried on railroad lines from points of shipment to Tacoma and Seattle, thence by steamer to the Orient. Bills of lading accompanied each shipment, whereby the consigned property was to be carried to Tacoma, Wash thence by steamer to the port in the Orient designated. Under the proofs, it was shown that it was optional with the carrier whether to ship to Tacoma or Seattle, Wash., and thence by steamer to Japan. The freight charge on the consignments was $1.35 per 100 pounds from point of shipment to port of destination. In the present instance the cotton was transhipped by the Great Northern Steamship Company on the steamship Dakota from Seattle. The steamship company, as had been its custom, prepaid the inland freight; that is, the freight from the point of shipment to Tacoma or Seattle. While en route to destination and in Tokyo Bay, Japan, the Dakota stranded, and the cotton on board was totally lost. Prior to the prepayment of the inland freight, the defendant in error (plaintiff in the trial court) insured the Great Northern Steamship Company against partial or total loss by perils of the sea, including stranding of any and all inland freight and advance charges paid by the steamship company. Later the defendant in error paid the steamship company the marine loss sustained by reason of loss of freight, including the inland charges prepaid, and thereupon the steamship company assigned and set over to the defendant in error all claims and causes of action it possessed against plaintiffs in error. Copies of the bills of lading and of the policy of insurance are attached to and made a part of the complaint. A demurrer was interposed to the second amended complaint, being the one last filed, on the ground that it does not state facts sufficient to constitute a cause of action, which was overruled. The issues being formulated, the cause was tried by the court, a jury being waived, resulting in a judgment for the defendant in error. From this judgment a writ of error is prosecuted.

The defendant in error has filed a motion to dismiss the writ, assigning several reasons, chief among which is that the bill of exceptions presents no ruling of the court made in the progress of the trial, and there are no special findings of fact.

From an inspection of the bill of exceptions it is at once manifest that no objections or exceptions were saved, and hence no questions of law arising at the trial can now be presented to or considered by this court. But this is no obstacle to the court's considering such questions as may arise upon the record and which it is not the office of the bill of exceptions to present.

The action of the court in overruling or sustaining a demurrer to the complaint is a matter which appears by the record, and no bill of exceptions is necessary for saving the questions pertaining thereto for the consideration of the appellate court. Whenever error is apparent upon the record, it is open to revision, whether it be made to appear by bill of exceptions or in any other manner. Suydam v. Williamson et al., 20 How. 427, 15 L.Ed. 978. And it was specifically held in Aurora City v. West, 7 Wall. 82, 19 L.Ed. 42, that, irrespective of the bill of exceptions, the writ of error brings up for review the decision of the court below in overruling a demurrer. See, also, Young v. Martin, 8 Wall. 354, 357, 19 L.Ed. 418.

Assignment of error No. 1, namely, that the court erred in overruling the defendants' demurrer to the second amended complaint, is specifically objected to on the ground that it does not point out the particular error asserted or intended to be urged; that the record does not show leave of the court to answer over; that the demurrer was waived by answering; that no exceptions to the ruling on the demurrer appear; and that the questions involved were subsequently submitted to the court in the progress of the trial. These may be answered seriatim.

The form of the assignment would seem to be ample, as it points out the error relied upon. It was not necessary that defendant obtain leave of court to answer. Rule 15 of the trial court permits that without special leave. Nor was the demurrer waived by answering over. In Teal v. Walker, 111 U.S. 242, 4 Sup.Ct. 420, 28 L.Ed. 415, a demurrer was interposed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

This was overruled with leave to answer, and answer wasause ofaction. accordingly filed. As to the question involved here the court says:

'The error, if it be an error, of overruling the demurrer could have been reviewed on motion in arrest of judgment, and is open to review upon this writ of error. When the declaration fails to state a cause of action, and clearly shows that upon the case as stated the plaintiff cannot recover, and the demurrer of the defendant thereto is overruled, he may answer upon leave and go to trial, without losing the right to have the judgment upon the verdict reviewed for the error in overruling the demurrer. The error is not waived by answer, nor is it cured by verdict. The question, therefore, whether the complainant in this case states facts sufficient to constitute a cause of action, is open for consideration.'

The second objection is also not well taken. No exceptions are required to be saved to the ruling of the court on demurrer. The record shows the error if one is committed, and that is reviewable without further formality in saving the questions pertaining thereto for presentation in the appellate court. That the questions pertaining to the demurrer were further considered at the trial did not deprive the plaintiffs in error of their writ of error upon the record, whether they have a regular and formal bill of exceptions or not.

This answers also the objections to assignments Nos. 2, 3, and 4, which assignments are all that are now insisted upon. As to the merits of the controversy, it is plain that for want of a sufficient bill of exceptions the only question that can now be considered is whether the second amended complaint states facts sufficient to entitle the plaintiff to recover. The question presented is stated by counsel for plaintiffs in error as follows:

'Are the bills of lading involved indivisible contracts upon which freight is earned only on delivery of the goods at ultimate destination, or are they divisible into two parts, the land portion and the water portion, so that the inland freight is payable by the shipper on termination of the land carriage?'

It arises upon demurrer, as the complaint sets forth the bills of lading by copy, and turns upon the proper construction of such bills of lading.

As a general rule, freight is not due and payable until delivery of the goods to the consignee. 6 Cyc. 493. As is said in The Ann D. Richardson, Fed. Cas. No. 410:

'The delivery of the cargo at the port of destination is considered a condition precedent to the right to freight, and without that the acceptance of the cargo at an intermediate place, by the owner of it, is necessary to enable the shipowner to maintain a claim to full, or pro rata freight.'

See, also, Burn Line v. United States & A.S.S. Co., 162 F. 298, 89 C.C.A. 278; The Tornado, 108 U.S. 342, 349, 2 Sup.Ct. 746, 27 L.Ed. 747; Hunter v. Prinsep, 10 East, 378, 394, cited and quoted from in the last-mentioned case.

It is alleged by the complaint in effect that Mitsui & Co. shipped the cotton by rail from points of original shipment to be carried to Kobe or Yokohama in Japan under and in accordance with certain bills of lading, and that, in accordance with the terms of said bills of lading or contracts of affreightment, said Great Northern Steamship Company on or about the 17th day of February, 1907, paid as inland or advance freight charges for the said transportation and carriage to Tacoma or Seattle, which has not been repaid. The contracts of affreightment, as shown by 'Exhibit A' attached to the complaint, in so far as they provide for transportation of the cotton and touching the freight to be paid therefor, stipulate as follows:

'To be carried to the port of (A) Tacoma, Wash., and thence by S. S. Tosca or steamer or steamers of the above companies to the port of (B) Kobe (or so near thereunto as she or they may safely get) with liberty to call at any port or ports in or out of the customary route (in any order), and to be there delivered, as above consigned, or to his or their assigns upon payment of the freight thereon, at the rate of $1.35 cents from Oklahoma City to Kobe, payable as above in United States gold currency, per one hundred pounds gross weight, with all other charges, advanced charges and average, without any allowance or credit or discounts; freight and advanced charges payable at carrier's option, in advance, in cash, or immediately on discharge of the property at the port of (B) Kobe in its equivalent in local

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