Schlosser v. Great N. Ry. Co.

• Decision Date: 27 June 1910
• Citation: 20 N.D. 406,127 N.W. 502
• Parties: SCHLOSSER v. GREAT NORTHERN RY. CO.
• Court: North Dakota Supreme Court

20 N.D. 406

127 N.W. 502

SCHLOSSER

v.GREAT NORTHERN RY. CO.

Supreme Court of North Dakota.

June 27, 1910.

Syllabus by the Court.

Action to recover damages for negligently killing three horses belonging to plaintiff while being shipped from Grand Rapids, Minn., to Hunter, N. D. Plaintiff, in the fall of 1907, shipped 22 horses from Hunter, N. D., to Grand Rapids, Minn., to the firm of Sutton & Mackey, over defendant's line. Sutton & Mackey were engaged in logging in Northern Minnesota during the winter months, and plaintiff's horses were shipped by him to them for work in the woods. Under the agreement, plaintiff was to and did pay the expenses of shipping the horses from Hunter, N. D., to Grand Rapids, Minn. Sutton & Mackey, in addition to the compensation paid plaintiff for the use of his horses, were to deliver them after the season was ended to plaintiff at Hunter, N. D., free of charge. On March 19, 1908, one of Sutton & Mackey's men, Crocker by name, brought the horses to Grand Rapids, and shipped them over defendant's line to plaintiff at Hunter. Defendant's agent at Grand Rapids filled out the ordinary form of livestock shipping contract, upon information given by Crocker, and Crocker executed the contract in the name of the plaintiff, by Crocker. The rate charged on this shipment was based on a valuation of $75 per head. Held, that plaintiff was not a party to the contract between Sutton & Mackey and defendant, that Crocker had no right or authority to sign plaintiff's name to the contract, and that plaintiff was entitled to recover the full value of the horses killed.

Additional Syllabus by Editorial Staff.

Where an agent actually enters upon the performance of his duties to his principal, and in doing so, fails to respect the rights of others by doing some wrong, or fails or neglects to use reasonable care in the performance of his duties, he is personally liable to a third person injured by reason of his misfeasance; his liability not being based upon the ground of his agency, but on the ground that he is a wrongdoer.

The owner of goods injured by a carrier may sue the carrier for their loss or injury, though he has no contract with the carrier for the carriage, on the ground that the carrier has the goods lawfully in his possession, and has become obligated to carry them safely and deliver them to the consignee, subject only to a lien for his charges, so that a wrongful failure or refusal to do so is a tort.

Appeal from District Court, Grand Forks County; Chas. F. Templeton, Judge.

Action by George Schlosser against the Great Northern Railway Company. From a judgment for plaintiff, and an order denying a motion for judgment notwithstanding the verdict and for a new trial, defendant appeals. Affirmed.Murphy & Duggan, for appellant. Skulason & Burtness, for respondent.

CARMODY, J.

This is an action brought by plaintiff in the district court of Grand Forks county for damages caused by the loss of three horses shipped over the defendant's railway. Verdict was directed at the trial for plaintiff, and from an order denying defendant's motion for judgment notwithstanding the verdict and in the alternative for a new trial and from the judgment entered, the defendant appeals.

The plaintiff, in the fall of 1907, shipped 22 horses from Hunter, N. D., to Grand Rapids,Minn., to the firm of Sutton & Mackey, over the defendant's line. Sutton & Mackey were engaged in logging in Northern Minnesota during the winter months, and plaintiff's horses were shipped by him to them for work in the woods getting out logs and timber. The agreement that plaintiff had with Sutton & Mackey, besides the compensation for the use of the horses, was that plaintiff should stand the expense of the shipment one way, and they the other. Plaintiff paid the expense going down and they paid the expense coming back. The understanding was that plaintiff was to have his horses back when the season was over, no definite time being set. This was the agreement made at the time of the agreement as to compensation for the use of the horses, and as part of that agreement. In addition, plaintiff paid certain other expense incurred on the return trip for inspection of his horses at Larimore, and other expense caused by delay on account of a wreck. Plaintiff made a trip to Grand Rapids for his horses, which were then out in the woods, and he returned without them, and with the same understanding that they were to return them to him at Hunter, N. D. About 10 days later, on March 19, 1908, one of Sutton & Mackey's men, Dick Crocker, brought the horses to Grand Rapids, and shipped them to the plaintiff. He presented them to the defendant's agent at Grand Rapids for shipment to Hunter, N. D., and the agent filled out the ordinary form of live-stock shipping contract upon information given by Crocker, and Crocker executed the contract in the name of plaintiff, by Crocker. The agent got the name of the shipper, the consignee, and destination, number of horses and other data from the man in charge of the horses, filled the contract accordingly, placing the valuation of the horses at $75 each, indorsed the amount of freight based on that valuation, $71.82, on the contract, and Crocker executed the contract in Schlosser's name. The rate charged on this shipment was based on the valuation of $75 per head, given by the shipping agent, and applied in all shipments of horses where the valuation given was under $100 per head. Where the valuation given exceeds $100 per head, a higher rate is fixed by the tariffs than that charged in this case. The valuation placed on the live stock by the shipper is always ascertained before stock is received by the carrier for...