Parsons v. United States Express Co.
| Decision Date | 15 December 1909 |
| Citation | 123 N.W. 776,144 Iowa 745 |
| Parties | C. D. PARSONS, Appellee, v. THE UNITED STATES EXPRESS COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Oelwein Superior Court.--HON. M. D. PORTER, Judge.
ACTION at law to recover damages for injuries done to a peanut roaster and corn popper while in defendant's possession as a common carrier. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.
Reversed.
Mullan & Pickett, for appellant.
W. B Ingersoll, for appellee.
On or about June 24, 1907, plaintiff delivered to defendant at Oelwein, Iowa, for shipment to Streator, Ill., a corn popper and peanut roaster. Transportation charges were paid by plaintiff, and defendant undertook to carry the machine to its destination. During the course of transportation the machine was damaged, and when it reached Streator, Ill plaintiff and defendant agreed that defendant should send to the manufacturer for the broken parts which, upon receipt at Streator, should be put upon the machine, in place of the broken ones, by plaintiff. As the parts were not shipped promptly defendant undertook to have the machine repaired by shipping it to Chicago and plaintiff was notified that he might go to his home, Oelwein, and await the receipt of a notice of the repair of the machine. The popper and roaster was returned to Streator and plaintiff notified thereof on July 4th. He immediately went to Streator, and when he arrived there found that while an attempt had been made to repair the breakage, that this had not been fully accomplished. He notified the defendant of the defects and defendant agreed to send it back for further repairs. This agreement was made on a certain Friday and the machine was returned the next succeeding Sunday, plaintiff again returning to his home at Oelwein pursuant to defendant's suggestion. About July 22nd, plaintiff was again notified of the return of the machine to Streator, and that it had been fully repaired. On the next day, the 23d of July, plaintiff was again at Streator, pursuant to notice, and as he says, again found that the defects had not been repaired and that it could not be made to work. Plaintiff then refused to receive the machine, claiming that in its damaged condition it was, and is, wholly worthless for the purpose intended. He thereupon commenced this action to recover the value of the machine and damages for loss of time due to his inability to operate the roaster. The defendant denied any conversion of the machine, claimed that plaintiff refused to receive it when tendered to him after it had been repaired the second time, and that it held the property subject to plaintiff's orders. It also claimed that it repaired, substantially, all the damage and that when offered to plaintiff it was in as good condition as when it received it at Oelwein.
The following instructions indicate the theory on which the case was submitted to the jury:
(3) In order for plaintiff to recover it is necessary for him to establish by a preponderance of the evidence that the machine in question was delivered to the defendant in good condition and that defendant accepted the same for transportation from Oelwein to Streator; that said machine was damaged while in transit, and that when it arrived at its destination it was in a wholly worthless condition for the purposes for which it was intended, and has ever since remained in such condition. (4) If you find from a preponderance of the evidence that the plaintiff delivered the machine to the defendant in good condition for transportation at Oelwein, Iowa, for delivery to him at Streator, Illinois, and that the same was accepted by defendant for transportation, and if you further find that the same was damaged while in transit, and at the time of the attempted delivery to plaintiff at Streator, Illinois, said machine was by reason of such damages in a wholly worthless condition for the purposes for which it was intended, then your verdict should be for plaintiff, and if you do not so find your verdict should be for defendant. (5) In case you find for the plaintiff you should allow him as damages the value of the machine as shown by the evidence at the time the same was accepted by the defendant at Oelwein, Iowa, for transportation to Streator, Illinois, but in any event not exceeding $ 450.00, with interest at six percent on such amount as you may allow, from June 26, 1907. But you are to allow nothing for loss of time or money expended.
The defendant insisted upon the trial and now contends that the trial court was in error in submitting the case on the theory of a conversion; that its liability, if any, is for damages, to be measured by the difference between the value of the machine when received by it at Oelwein and its value after being repaired the second time, and that in no event is plaintiff entitled to recover on the theory of a conversion. The petition is ambiguous. It charges that defendant so neglected its duty as a common carrier that the property was wholly lost to plaintiff, to his damage in the sum of $ 450.
While on the witness stand plaintiff gave the following testimony:
Q. State whether or not, this second time when you went there, you found the machine, after receiving the second notice, it could be operated for the purpose for which it was intended. A. It could not; no, sir. Q. You may state whether or not this machine in the condition in which you found it at the time you first saw it at Streator, Illinois, was of any value--that is, at the time you saw it after the injury was received, was it of any value for the purpose for which it was intended? A. It was absolutely no good. Q. State whether or not, at the time when you saw it, I think, on the 7th day of July, was it? A. 5th. Q. 5th of July, was it any value for the purpose for which it was intended? A. No, sir. By the term, 'no value,' I mean that the machine was of no value for the purpose for which it was supposed to be made for. Q. You may state whether or not on the 23d day of July, at the time you went to Streator in response to the second notice, the machine was of any value for the purpose for which it had been intended, at that time? A. It was absolutely no good for the purpose for which it was intended at that time.
Notwithstanding these conclusions of the witness, he testified:
I then went to Streator and saw the machine in the freight room of the Chicago & Alton Railway. There was gasoline put in the tank, but the tank leaked and it ran out. The tank was made of tin or sheet iron. I think of tin. Soldered together. I did not have the leak repaired. There was a fire started under the boiler, and the engine was operated. The tank on the machine is a little gasoline tank very much of the same nature as the tank on a gasoline stove. I think it holds about two gallons. The case is where you pop your corn. It is a square case, I think twenty-two by twenty-six inches, or something like that. It sets on over the boiler on top of a frame, and is held in place by four little rods that run down on sheets of metal, and there are four screws; two on each side. The case had been pulled off this way. It is made of glass and wood, and is lined with zinc and copper. The glass and wood were not broken. The condition of the case would affect the running of the machine because from...
To continue reading
Request your trial
-
Parsons v. U.S. Express Co.
...144 Iowa 745123 N.W. 776PARSONSv.UNITED STATES EXPRESS CO.Supreme Court of Iowa.Dec. 15, 1909 ... Appeal from Superior Court of City of Oelwein; M. D. Porter, Judge.Action at law to ... ...