Ryan v. Great Northern Ry. Co.

• Decision Date: 19 June 1903
• Docket Number: Nos. 13,425-(120).,s. 13,425-(120).
• Citation: 90 Minn. 12
• Parties: D. E. RYAN v. GREAT NORTHERN RAILWAY COMPANY.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

90 Minn. 12

D. E. RYAN v. GREAT NORTHERN RAILWAY COMPANY.¹

Nos. 13,425-(120).

Supreme Court of Minnesota.

June 19, 1903.

Action in the municipal court of Minneapolis to recover $187.50 for refusal of defendant to divert at an intermediate point a carload of

merchandise forwarded over defendant's railway line and consigned to plaintiff at Minneapolis. The case was tried before Dickinson, J., who found in favor of plaintiff for the sum demanded. From an order denying a motion for a new trial, defendant appealed. Reversed.

Rome G. Brown and Charles S. Albert, for appellant.

George C. Stiles, for respondent.

LOVELY, J.

Damages are sought in this action for the failure of a railway carrier to comply with a request by the consignee of a car of apples to divert it while in transit at a point between the place of shipment and its destination. The cause was tried to the court, who made findings of fact and ordered judgment for plaintiff for the amount claimed in the complaint. There was a denial of a motion for new trial, from which order defendant appeals.

Upon the findings of fact, amply supported by the evidence, it appears that the firm of Johnson & Co., of Diamonds, in the state of Washington, shipped a carload of apples to plaintiff at Minneapolis. The apples were delivered to the Oregon Railroad & Navigation Company for transportation on October 22, 1901, thereafter transferred by the initial carrier to defendant at Spokane, and in due time forwarded by the latter to the point of destination. The initial carrier delivered to the shippers its bill of lading, in which Johnson & Co. were named as consignors and plaintiff as consignee. When the goods were shipped, the consignors informed plaintiff of that fact by telegram, on the receipt of which the latter requested an agent of defendant at Minneapolis, three or four days before the apples went through Devils Lake on defendant's line, to set the car off at that place, and the damages awarded were for failure to comply with this request.

There was some controversy whether the agent had authority to act upon the request for the diversion of the car, but, in the view we have taken of the law applicable to the issues, we have not thought it necessary to discuss this question, but shall assume that such authority did exist. It was found upon competent evidence that, when the request to set off the car at Devils Lake was made, the agent inquired of the plaintiff whether he had a bill of lading; that plaintiff then stated that he would produce it as soon as it was received from the shipper; but it was also found by the court that it was not furnished to defendant until October 28 or 29, when the car had actually passed Devils Lake in the course of transportation, and could not then be stopped at that place. It also appeared that, at the time the request was made to divert the car at the intermediate point, the agent said he would see what could be done with reference to changing its destination, but neither he nor any other agent of defendant made any promise or agreement with plaintiff that the stoppage would be made. There is no claim that there was any waiver on the part of defendant of the production of the bill of lading or other evidence of plaintiff's title to the property.

It is proper, on the facts, to assume for the purpose of this case that the owner of goods transported by a common carrier has the right to have his consignment, while in transit, diverted at any intermediate point through which it passes; but such right of diversion cannot add to the burdens of the carrier, or require it to do more than comply with a proper and legal demand therefor. Hutchinson, Carr. (2d Ed.) 337, and notes; 5 Am. & Eng. Enc. (2d Ed.) 214. It necessarily follows that some evidence of the right of the party to make the diversion may be demanded by the carrier before the goods reach the stopping point, for the person authorized to have that right could not require the goods to be reshipped and returned at the extra expense of the carrier; hence the question still remains whether the request to have the car put off at Devils Lake required the defendant to comply therewith without the production of the bill of lading or further evidence of plaintiff's ownership of the...