Shikany v. Salt Creek Transp. Co.

• Citation: 45 P.2d 645,48 Wyo. 190
• Decision Date: 08 May 1935
• Docket Number: 1867
• Parties: SHIKANY v. SALT CREEK TRANSP. CO
• Court: United States State Supreme Court of Wyoming

45 P.2d 645

48 Wyo. 190

SHIKANY v. SALT CREEK TRANSP. CO

No. 1867

Supreme Court of Wyoming

May 8, 1935

APPEAL from the District Court, Natrona County; C. D. MURANE, Judge.

Action by Annie Shikany against the Salt Creek Transportation Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

For the appellant, there was a brief by Wm. B. Cobb, of Casper.

The court erred in overruling defendant's exception to the testimony of Mrs. Shikany as to the value of the lost rug. The court erred in overruling and denying defendant's motion to direct a verdict. There was no valid proof of the value of the rug, nor that transportation was undertaken by defendant as a common carrier. The court erred in sustaining plaintiff's exception to defendant's offer of bill of lading as evidence. There was misconduct on the part of plaintiff's counsel in addressing the jury and advising of the making and overruling of the motion to direct a verdict. There was no proof of value of the claimed oriental rug. Hatch Brothers Company v. Black, (Wyo.) 165 P 518; Davis v. Graham, 31 Wyo. 239. The rug was not marketable property and had no market value. The court erred in submitting to the jury the question of marketable value. Hutchinson on Carriers, 3d Ed. Vol. 3, Section 1363, p. 1614; Quinlan v. Jones, 27 Wyo. 410; 2 Sutherland on Damages, Section 445, page 1435. The price at which the owner would sell the property is not evidence of its value. 3 Sutherland on Damages, 4th Ed., Section 919, p. 3396; 5 Elliott on Railroads, Section 2748; Transfer Company v Neill, L. R. A. 1917A, 61; Houston v. Ney (Texas) 58 S.W. 43. This court has defined market value in Bader v. Mills & Baker Company, 28 Wyo. 191. See also Martel v. Hall Oil Company, 36 Wyo. 166; Slane v. Curtis, 41 Wyo. 402; Mohahan v. Cleaning Company, (Mo.) 241 S.W. 956; Lloyd v. Haugh Company, (Pa.) 21 L. R. A. (N. S.) 188; Green v. Railroad Company, 35 Am. Rep. 370. See also annotation at 86 A. L. R. 1449. The court erred in giving instruction numbered 3 with reference to market value. The court erred in giving instruction numbered 4 on the subject of common carriers. The court erred in giving instruction numbered 5 as to common carriers. The court erred in refusing defendant's instruction "A" as to common carriers. Weaver v. Commission, 40 Wyo. 462. The court erred in refusing defendant's offered instruction "B". Railroad Company v. Blyth, 19 Wyo. 410. The court erred in refusing instruction "C". Gagnin v. Dinsmore, 20 Am. Rep. 442. The court erred in refusing to submit special interrogatories requested by defendant to the jury, said interrogatories being numbered I to XIII inclusive. Plaintiff committed a constructive fraud upon defendant in failing to advise defendant of a valuable rug in the shipment when the shipping agreement was made. Magnin v. Dinsmore, supra; Lancaster v. Houghton, 249 S.W. 1103.

For the respondent there was a brief by Durham & Bacheller, of Casper, and oral argument by E. E. Enterline, of Casper, for Durham & Bacheller.

The rug had been in the possession of plaintiff for many years. She was present when it was loaded upon appellant's truck and testified that it was never delivered. She testified that the rug was worth $ 2500.00. The bill of lading was properly excluded as evidence. There was no misconduct on the part of respondent's counsel. The case of Davis v. Graham, 31 Wyo. 239, is not applicable, nor the quotation from Hutchinson on Carriers. A common carrier of goods for hire occupies the position of an insurer, and if the goods are not delivered at destination, the carrier must respond to the owner for the value of the goods. C., B. & Q. R. R. Co. v. Pollock, 16 Wyo. 321; C., B. & Q. R. Co. v. Tolman, 31 Wyo. 175. The defendant was a common carrier and licensed as such. The definition of common carrier given in the statute and that expressed in the offered instruction "A" differs materially. Appellant's instruction numbered "C" had no application whatever. The instruction of the jury by special interrogatories is within the discretion of the trial court. Opitz v. Town of Newcastle, 35 Wyo. 358. The case of Magnin v. Dinsmore cited by appellant is in favor of respondent. The evidence shows that appellant was advised that the rug in question was valuable. The judgment of the trial court should be affirmed.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

This is an action, brought by the plaintiff against the defendant, to recover the sum of $ 2500, the value of one Saruc oriental rug, delivered by plaintiff to defendant, as a common carrier, for transportation from Casper to Sheridan, Wyoming, and subsequently lost. The case was tried to a jury. They returned a verdict in favor of plaintiff in the sum of $ 725. Judgment was entered thereon, and the defendant has appealed. The parties will be referred to as in the case below.

1. The defendant claims that it did not act as a common carrier in this particular case. It pleaded that "a separate, special and specific contract was entered into between plaintiff and defendant for the carriage and transportation from Casper to Sheridan, Wyoming, of certain household goods belonging to plaintiff, on or about the 14th day of September, 1932; that pursuant to said special contract a lump sum was agreed upon between the parties for the carriage of said goods, but that defendant did not undertake or agree to transport and deliver said household goods as a common carrier for hire." Further, "that the agreed price for said transportation of said goods was the sum of $ 15.00, and which was, and is a sum of money much less than the authorized and existing rate properly chargeable for the transportation of household goods by motor vehicle common carriers in the State of Wyoming." The only evidence on the point is that of Mr. Hilliar, the manager of the defendant company. He testified that the defendant had a certificate of convenience and necessity as a common carrier of goods, operating between Casper and Sheridan, and that it did not have a certificate as a contract carrier; that he accepted the shipment of the plaintiff's goods as a "lot shipment," and that this "is a shipment that is taken at a reduced price, possibly half truck load or a full truck load; not a fast moving shipment as a rule, and it is not taken subject to classification; where it is classified, each piece would be itemized at different rates, for instance, the household goods shipment in it would take a lower rate than the others. * * * there is a rate set out for oriental rugs." The regular rate he stated to be ninety cents, presumably per 100 pounds, but that "taken as one piece," the classification is higher. While it is not clear, it may be that, judging from the testimony as a whole, it would seem that no fixed rate was considered, but that the goods were agreed to be transported for a lump sum. And the theory of counsel for the defendant is that the facts stated disclose that the defendant in this case did not act as a common carrier, but as a contract carrier, and cannot, accordingly, be held liable as an insurer, but only, at most, for negligence, of which there is no evidence in this case. He accordingly asked the court to instruct the jury as follows:

"You are instructed that it is the contention of the defendant that the special price or rate was made for the carriage of the goods mentioned in the evidence because such goods, under the agreement, were to be carried as a lot or fill-in shipment. If you find from the evidence that such an arrangement was entered into, then I charge you that the defendant was not an insurer of the safe delivery of the goods and would only be liable for loss if you find from the evidence that the defendant was negligent in some particular."

He further asked the court to instruct the jury that:

"If you find that the defendant reserved to itself the right of accepting or rejecting the offer of plaintiff's goods for carriage, being guided in its decision by the attractiveness or otherwise of the particular offer, then in this transaction you are instructed that as a matter of law the defendant was not acting as a common carrier, but was acting as a private carrier."

The court refused to give these instructions and error is predicated thereon. Counsel, while not claiming that there was any contract relieving the carrier from its liability as an insurer, contends that "when a special contract or agreement was made for the shipment of these goods at a reduced rate, the shipper knew that she could not hold the carrier to the same degree of accountability as though she had paid the regularly established rate, and that it was incumbent upon her upon proof of failure to deliver, to allege and prove some act of negligence on the part of the carrier." It cannot be disputed that whatever else the defendant was, it was a common carrier. Seemingly rates had been fixed by the proper authorities. And it is provided by section 72-507, R. S. 1931, that it shall be unlawful for a common carrier to charge a greater or less rate for any service specified in the schedule of rates. If then, a rate was charged in this case as such carrier which was less than that which was lawfully fixed, the defendant violated the statute. It had no permit to operate as a contract carrier, and it would seem to be axiomatic that it could not change its character as a common carrier by violating the statute or by merely calling itself a contract carrier. In fact the statute last mentioned, without passing upon it definitely, seems to forbid that a person or company may act in a dual capacity. Whether or not the defendant could, as a common carrier, lawfully make a contract for reduced liability...