Spokane Grain Co. v. Great Northern Exp. Co.

• Decision Date: 05 November 1909
• Citation: 104 P. 794,55 Wash. 545
• Parties: SPOKANE GRAIN CO. v. GREAT NORTHERN EXPRESS CO.
• Court: Washington Supreme Court

104 P. 794

55 Wash. 545

SPOKANE GRAIN CO. v. GREAT NORTHERN EXPRESS CO.

Supreme Court of Washington, En Banc.

November 5, 1909

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by the Spokane Grain Company against the Great Northern Express Company. From a judgment for plaintiff, defendant appeals. Reversed, and cause ordered dismissed.

L. C. Gilman, B. O. Graham, and F. G. Dorety, for appellant.

Chas D. Fullen, for respondent.

MOUNT J.

This action was commenced by the Spokane Grain Company, a corporation, against the Great Northern Express Company, a corporation, to recover the value of two horses, delivered to the defendant for shipment from St. Paul, Minn., to the plaintiff at Seattle, Wash. The plaintiff alleged that it had delivered 14 horses to the defendant at St. Paul for transportation to Seattle, and, while they were in defendant's possession in a car furnished by it and en route to Seattle, the defendant on June 11, 1907, at Spokane Wash., wrongfully, illegally, willfully, and against plaintiff's protest removed two of the horses from the car, that it converted them to its own use, and failed to deliver them at Seattle as it had contracted to do. The defendant by its answer denied the alleged wrongful taking and set up that the horses, when removed from the car at Spokane, had been severely burned about their forelegs, neck and head by a fire in the car, which occurred during their transportation and which resulted from the negligence of an attendant without any fault of the defendant, that the attendant was an employé of the plaintiff; and further alleged: 'That, when said car containing said horses arrived at the city of Spokane, the two horses which were burned as aforesaid were suffering intense pain by reason of said burns, and on account of the painful manner, posture, and confinement rendered necessary by their transportation in said car, and said two horses could not have been transported from Spokane, Wash., to Seattle, Wash., without cruelly torturing said animals, or without transporting said animals in said car in a cruel and unnecessarily painful manner, posture, or confinement. * * * That defendant thereupon, for the purpose of giving such horses proper care and attention and proper medical and surgical attendance, and to avoid torturing or inflicting unnecessary suffering or pain upon said horses, and to avoid transporting said horses in a cruel or unnecessarily painful manner, posture, or confinement, removed said two horses from said car, and placed same in a suitable barn, and, exercising due care and prudence, procured a duly licensed and practicing veterinary surgeon to attend said animals. That plaintiff abandoned said animals at said time, and refused to provide necessary medical or surgical attention therefor, or to provide any care or attendance of any kind to relieve the suffering of said animals, or to cure the injuries inflicted by such fire.' The answer also alleged a counterclaim for expenses incurred in caring for the horses while in defendant's custody, and for carriage from St. Paul to Spokane. The plaintiff's reply, after admitting that the horses were burned, denied that their removal was necessary, or that plaintiff's negligence caused the fire, and alleged: 'That said horses were injured by reason of the failure of the defendant to properly equip and protect the car containing said horses from danger of fire which might be caused from the engine attached to the train of which said car was a part, in that a ventilator to said car immediately over the heads of the said horses was not protected with a proper screen, and thereby the sparks from the engine attached to said train were caught and thrown in and upon the hay and feed necessarily carried in said car for said animals, and thereby a fire occurred somewhat injuring said horses. That the defendant recognized its liability for the injury to said horses, and did, against the protest and wishes of the plaintiff, make and convert the said horses to its own use at the city of Spokane aforesaid, and did wholly fail to transport and deliver to the plaintiff at the city of Seattle the said horses as the said defendant was under and by virtue of said contract and under and by virtue of its duties as a common carrier bound to do, as stated and set forth in the plaintiff's complaint. That the defendant elected to take said horses from said car and remove the same from the care and protection of the plaintiff, and did assume against the wishes and protest of the plaintiff to appropriate said horses to the defendant's own use, and by so doing, refused to transport said horses to the said city of Seattle and deliver the same to the plaintiff as said defendant was required to do.' At the close of the plaintiff's evidence, the defendant moved the court for a directed verdict, and at the close of all the evidence requested the court to instruct the jury to return a verdict for the defendant. Both of these requests were denied. A verdict was returned in favor of the plaintiff for $360. Thereupon the defendant, without asking a new trial, interposed a motion for judgment non obstante veredicto, which was denied. From the final judgment entered on the verdict, this appeal is prosecuted.

We are of the opinion that the court should have directed a verdict at the close of the evidence, and should have sustained the motion for judgment of dismissal non obstante veredicto. It is plain, by both the pleadings and the evidence, that the basis of the action was the alleged unlawful conversion of...