Taugher v. N. Pac. Ry. Co.

• Decision Date: 28 January 1911
• Citation: 21 N.D. 111,129 N.W. 747
• Parties: TAUGHER v. NORTHERN PAC. RY. CO. et al.
• Court: North Dakota Supreme Court

21 N.D. 111

129 N.W. 747

TAUGHER

v.NORTHERN PAC. RY. CO. et al.

Supreme Court of North Dakota.

Nov. 23, 1910.

Rehearing Denied Jan. 28, 1911.

Syllabus by the Court.

In an action for damages for conversion of grain by a common carrier, intrusted to it for transportation, one of the defenses relied upon by appellant was that the grain did not belong to the plaintiff consignor, but was the property of one C. In attempting to make proof of such ownership after proper foundation laid and after C. had testified that the grain all belonged to plaintiff, C. was interrogated as to whether he had made statements to the effect that he owned the grain. Held, that such questions were proper as going to the credibility of C. as a witness, when offered for that purpose, and that it was reversible error of the trial court to sustain objections to such questions.

On proof of delivery of property to a common carrier in sound condition and of its failure to redeliver it, a sufficient case is made to sustain a recovery for loss in an action by the shipper on his contract, with certain exceptions which have no application in this case, but other and different proof may be necessary in such case to sustain an action for conversion against the carrier.

To constitute conversion, there must be a positive tortious act, a tortious detention of personal property from the owner or its destruction or an exclusion or defiance of the owner's right, or the withholding of possession under a claim of title inconsistent with that of the owner.

The gist of the action on the contract in such case is the failure to deliver, while the gist of an action in trover is the conversion; and the mere showing of a breach of contract may not prove conversion.

If a shipper elects to sue for conversion and fails to establish the elements necessary to constitute conversion, his action must fail unless his complaint states facts necessary to sustain a recovery on the contract or some other proper form of recovery, as the burden is on the shipper when he seeks the benefit of the measure of damages for conversion to prove the act of conversion.

While proof of a demand and refusal to deliver the property or thing may establish conversion in connection with other facts, the demand and refusal are only evidence of conversion when the defendant was in such condition that it might have delivered the property if it would, and conversion does not lie against a common carrier for a mere nonfeasance nor for goods stolen from the carrier, nor for negligence causing the loss, nor for bare omission.

When goods in transit are taken from the carrier by an officer under a writ of attachment against a third party, it is incumbent on the carrier, in an action for conversion, to give immediate notice to the shipper, and, on failing to give such notice so as to enable the shipper to protect himself, the carrier assumes the burden of establishing the legality of the proceedings on which the attachment was made, and the fact that the writ was regular on its face does not protect the carrier if such writ was in law void.

A justice of the peace acquires no jurisdiction to issue a writ of attachment until the summons in the action is issued, as attachment is a provisional or dependent remedy, which has no existence until the commencement of an action.

When delivery by a carrier to an officer, under a valid writ of attachment, constitutes conversion, proof of the value of the property delivered as of the date delivered to the officer is competent proof of value to support a recovery.

In the absence of other existing liens on property, a mortgagor may legally surrender the mortgaged property to the mortgagee and authorize its sale and the application of the proceeds to the mortgage debt, though no default has occurred in the terms of the mortgage.

A justice summons bore date two days after the date of filing with the justice of the complaint, affidavit, and undertaking for attachment and issuance of the writ of attachment. Held that, on the offer of such papers in evidence in an attempt to show that they were simultaneously issued, it was not error to exclude them from evidence.

Section 8350, Rev. Codes 1905, requires a justice of the peace to keep a docket and enter therein in continuous order, with the proper date, each act done during the course of litigation, and section 8351 provides that the docket so kept cannot be disputed in a collateral proceeding; that it or a duly certified transcript thereof is competent evidence of the matters to which it relates. Held, that the sections referred to make such docket the best evidence of the facts required to be and which are entered therein by the justice, and that, in the absence of any offer of such docket or a transcript thereof as evidence, no attempt being made to account for its absence, parol evidence is not admissible under the facts disclosed to show that the summons was in fact issued simultaneous with the issuance of a writ of attachment.

Appeal from District Court, Stutsman County; Burke, Judge.

Action by Lillian B. Taugher against the Northern Pacific Railway Company and others. From a judgment for plaintiff and an order denying a new trial, the mentioned defendant appeals. Reversed, and new trial granted appellant.

Ball, Watson, Young & Lawrence, for appellant. Lee Combs, for respondent.

SPALDING, J.

This is an appeal by one of the defendants, the Northern Pacific Railway Company, from a judgment in favor of the plaintiff, Lillian B. Taugher, and from an order overruling and denying said defendant's motion for judgment notwithstanding the verdict or for a new trial. The action was brought against the Northern Pacific Railway Company, a corporation, Peter Kerner, and the firm of Olson, Preszler & Bollinger. The complaint, omitting the formal parts, alleges that on or about the 3d day of January, 1908, plaintiff was the owner and in possession of 550 bushels of flax at the village of Crystal Springs, N. D., of the value of $561, and that on said day and at said place she delivered said flax to the defendant railway company as a common carrier of freight, and caused it to be loaded in one of its cars, No. 4077, to be by it transported for her to Duluth, Minn., upon the customary terms; that on the same day she was entitled to the possession of 374 bushels of other flax at the village of Crystal Springs, and was then and there in possession thereof and then and there delivered the same to the said railway company, together with the flax above mentioned, and loaded it in the same car with the first-mentioned flax; that said company received all such flax, and undertook to transport it to Duluth for plaintiff upon the usual terms, etc., and then and there gave plaintiff a bill of lading therefor; and that the value of the flax last mentioned was $381.48. The complaint then sets forth the plaintiff's right of possession as resting upon a chattel mortgage duly executed, delivered, and filed covering the last-mentioned flax, and that the conditions of such mortgage and the note secured thereby were in default. It alleges the conversion of the said flax between the 3d and 7th days of January, 1908, at or near the village of Medina, N. D., by each and all of the defendants, and a demand thereafter made therefor, and its refusal, and prays judgment for the value of the flax and interest. The defendant and appellant the Northern Pacific Railway Company answered, admitting that on January 3, 1908, there was delivered to it a car load of flax consigned in the name of the plaintiff to the consignee at Duluth, Minn., and alleging that it had no knowledge or information sufficient to form a belief as to the allegations contained in the complaint as to the amount, value, and ownership thereof or of the nature and extent of the plaintiff's interest and rights therein, and denied all other allegations. Defendant Peter Kerner answered, denying every allegation of the complaint not admitted, qualified, or explained, and attempted to justify the taking of 327 bushels and 40 pounds of flax, alleging that it belonged to one Christianson, and was in a Northern Pacific car at Medina, as constable of Stutsman county, on or about the 4th of January, 1908, under an execution (evidently meaning writ of attachment) issued by one Todd, justice of the peace. The defendants Olson, Preszler & Bollinger answered in substantially the same form as defendant Kerner, except that they attempted to justify the taking of 327 bushels and 40 pounds under a writ of attachment delivered to Kerner as constable and the seizure thereof under such writ, and a sale to satisfy a judgment rendered on the 10th of January, 1908. Neither of the answers identifies any of the flax taken as the flax shipped by the plaintiff. A trial was had in district court and two questions were submitted to the jury, namely: “(1) Was there any difference in amount in the grain put into the car at Crystal Springs by Christianson and the amount of grain taken out thereof on the following Monday at Medina?” This was answered in the affirmative. “(2) If so, what was the amount of the difference?” The answer to this question was 503 bushels, gross, and a general verdict was returned in favor of the plaintiff and against all of the defendants, assessing her damages at $835.33, with interest from the 4th of January, 1908, on which verdict judgment was entered. The defendant the Northern Pacific Railway Company appeals separately. The other defendants are not in this court.

We seldom have an appeal before us in which the record contains so confusing a mass of objections, motions, and offers. It contains 79 assignments and 137 specifications of error. The objections of plaintiff to questions and the motions to strike out answers in most instances fail to specify adequately the grounds on which they are based. We infer from the briefs that many of those made by respondent were intended to...