St. Louis & S. F. R. Co. v. Jamieson
| Decision Date | 13 April 1908 |
| Citation | 95 P. 417,20 Okla. 654,1908 OK 56 |
| Parties | ST. LOUIS & S. F. R. CO. v. JAMIESON. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The statement on a receipt or bill of lading given by a railroad company that goods were received in "apparent good order" is not conclusive evidence to that effect, it being competent to show they were not in good order.
[Ed Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, § 159.]
By such receipt or bill of lading issued by the initial carrier as agent for the delivering carrier, however, the onus is put upon the delivering carrier to show they were not in the condition stated in the receipt.
When any competent evidence has been presented for the consideration of the jury reasonably tending to prove the issues, it is proper to overrule a demurrer to the evidence or deny a motion for peremptory instruction; for in such a condition, under proper instructions from the court, the cause should be submitted to the jury for their determination.
[Ed Note.-For cases in point, see Cent. Dig. Vol. 46, Trial, §§ 388-340.]
Where several packages are delivered in one shipment and under a single entire contract to a carrier for shipment, not only over its own line, but also a connecting line, in an action by the consignee against the delivering carrier, from which he received a portion of the consigned goods, for injury and loss, on the introduction by the plaintiff of the bill of lading issued by the initial carrier to the effect that the goods were received by it "in apparent good order," the burden of proof was on it to rebut such prima facie presumption of delivery in "apparent good order," or to show that the alleged damage or loss occurred before it reached its line.
Where the evidence in a case leaves it doubtful whether the particular carrier who is sued for a loss of goods, or another from whom that carrier received the goods, is liable the Supreme Court will not disturb the findings in the court below.
Error from District Court, Washita County; James K. Beauchamp Trial Judge.
Action by H. L. Jamieson against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.
This action was begun in the district court of Washita county territory of Oklahoma, on the 5th day of September, 1904. On the 20th day of March, 1905, plaintiff filed his first amended petition, upon which the cause was tried. For his first count he alleges that on or about the 7th day of July, 1904, plaintiff delivered to the defendant, as a common carrier for hire, certain goods, consisting of 1 barrel of drugs, 10 boxes of drugs, 14 boxes of drugs, 1 case of drugs, and 1 can of oil at Sapulpa, Ind. T., consigned to M. E. Dixon at Shawnee, there to be delivered by the Chicago, Rock Island & Pacific Railway Company, a common carrier for hire, to said consignee; that said goods were accordingly delivered at Shawnee by the said Chicago, Rock Island & Pacific Railway Company in apparent good condition and placed in a proper place of storage. On the 16th day of August, 1904, the said goods, under instructions from the plaintiff, were redelivered to said railway company at Shawnee by the said M. E. Dixon and consigned to the plaintiff at Cordell, Okl., a station on the line of the defendant, the initial line issuing bill of lading for the entire shipment, reciting that the same were in apparent good order, and further stipulating that it should not be liable for damages or loss occurring on any connecting line. Plaintiff further alleges that a part of said shipment was lost and another portion damaged in transit, and prays for damage accordingly.
In another count plaintiff alleged that a certain piano was delivered by him to the defendant at Sapulpa to be shipped over the defendant's line to him at Cordell, Okl., and that said piano, through the negligence of defendant, was damaged in transit, and he prayed damages therefor. On the trial of the cause, by consent of the plaintiff, this branch of the case was withdrawn from the jury. The proper freight charges were paid by or for plaintiff on said shipment at place of destination.
Plaintiff stated in his testimony that he shipped from Sapulpa a stock of drugs and druggists' sundries, consisting of packages and boxes of medicines, toilet articles, such as are ordinarily carried in a drug store, tooth brushes, combs, etc., the entire stock invoicing $1,200; that he delivered same to defendant's station agent at Sapulpa, consigning same to Shawnee, Okl. T.; that when he received the goods at Cordell there were four packages missing, two cans missing, one box of drugs missing, and also one case of cigars. Afterwards the case of cigars and also the cans came in, but the box of drugs and the four missing packages were never delivered; also another box of drugs containing patent medicines and syrups were lost. Still another box was broken into the top through the center and the entire top taken off, bottles of drugs were broken, and the top just set down loose over the goods. One or two tops of other boxes were broken and medicine bottles were broken and the contents run out, and syrup run over the other goods and damaged the labels to a certain extent. Plaintiff stated further that he shipped a piano from Sapulpa, and also some household goods to furnish a suite of rooms, with furniture, beds, washstands, chairs, rocking chairs, tables, and the like. The value of all the goods were properly proved as well as the damages. Plaintiff further testified that the piano was in good tune and in good condition when he shipped it, but when he received it at Cordell it was damaged by dampness and rain, the sound board had gotten wet and the hammers dropped off and he had to get a piano tuner to tune it and put on a new hammer and safety weights; that it was so damp and swollen that the keys could not pass. He testified that the goods and chattels were packed in ordinary shipping boxes-heavy dry goods boxes; that he put excelsior and straw-mostly excelsior-around the bottles, and that the drugs and goods and sundries were shipped in first-class condition. He stated that the portion of the drugs that were received in Cordell were in a damaged condition; the box tops had been broken off, one broken into and some of the goods and sundries therein lost, the bottles therein broken, and the liquids run out. Plaintiff further stated that he discovered the damages to these goods when he opened the packages as soon as they arrived; that he did not know they had been damaged until they arrived in Cordell. Plaintiff testified that the piano was shipped direct from Sapulpa to Cordell, and that the same was damp when he received it, but that the piano was dry and well packed when it was shipped. Mrs. M. E. Dixon on behalf of the plaintiff testified that as agent of plaintiff she received the goods consigned to her by plaintiff from Sapulpa, and had them brought from the depot in drays and had them put in dry storage, and that all that time they were dry and in good condition, except two little pieces of plank that were broken off of a box, and that she had that repaired. But afterwards, under instructions from the plaintiff, she reshipped the goods in question in good shape and well preserved, consigning them to plaintiff at Cordell, Okl. T.; that she did not know anything about the contents of the boxes; that she knew the piano was a nice piano, but she did not know anything about its condition. It was not shipped to Shawnee but shipped direct to Cordell. At the close of the testimony defendant demurred to the evidence on the ground that same was insufficient to entitle plaintiff to recover. The demurrer was overruled. To which action of the court defendant excepted. Thereupon the defendant moved the court for a peremptory instruction in its favor, which was denied, defendant saving its exception.
The jury returned a verdict in favor of the plaintiff for $250 at the same time returning answers to...
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