Taugher v. Northern Pacific Railway Company, a Corp.
| Decision Date | 23 November 1910 |
| Citation | 129 N.W. 747,21 N.D. 111 |
| Court | North Dakota Supreme Court |
Rehearing denied January 28, 1911.
Appeal from the District Court of Stutsman county; Burke, J.
Action by Lillian B. Taugher against the Northern Pacific Railway Company and others for the conversion of flax shipped by plaintiff over defendant's railroad. The defendant, the Northern Pacific Railway Company, appeals from a judgment in favor of plaintiff and an order denying a new trial.
Reversed and a new trial granted.
Judgment of the district court reversed and a new trial granted.
Ball Watson, Young, & Lawrence, for appellant.
Neglect of duty is not necessarily conversion. 28 Am. & Eng. Enc. Law, pp. 682, 683; Marshall v. Andrews, 8 N.D. 364, 79 N.W. 851; Magnin v. Dinsmore, 70 N.Y. 410, 26 Am. Rep. 608; Moses v. Norris, 4 N.H. 304; Central R. & Bkg. Co. v. Lampley, 76 Ala. 357, 52 Am. Rep. 334; Hawkins v. Hoffman, 6 Hill, 586, 41 Am. Dec. 767; Angell, Carr. §§ 431-433; Scovill v. Griffith, 12 N.Y. 509; Ross v. Johnson, 5 Burr. 2825; Bowlin v. Nye, 10 Cush. 416; Hett v. Boston & M. R. Co. 69 N.H. 139, 44 A. 910; McAlister v. Chicago, R. I. & P. R. Co. 74 Mo. 363.
Default is essential to mortgagee's right to possession. Parker v. First Nat. Bank, 3 N.D. 90, 54 N.W. 313.
It is error to refuse the recall of a witness to lay foundation for impeachment. Queen's Case, 2 Brod. & B. 299, 22 Revised Rep. 662; 10 Enc. Pl. & Pr. p. 284; State v. Nixon, 47 La.Ann. 836, 17 So. 303; Covanhovan v. Hart, 21 Pa. 495, 60 Am. Dec. 57; Harvey v. State, 37 Tex. 365; 10 Enc. Pl. & Pr. pp. 285, 286; Kimmey v. Calloway, 52 Ala. 222; Wisconsin Planing Mill Co. v. Schuda, 72 Wis. 277, 39 N.W. 558; Updyke v. Wheeler, 37 Mo.App. 680; Gilmour v. Heinze, 85 Tex. 76, 19 S.W. 1075; Tucker v. Welsh, 17 Mass. 160, 9 Am. Dec. 137; 10 Enc. Pl. & Pr. p. 283; Bartlett v. Cheesebrough, 32 Neb. 339, 49 N.W. 360; Kennedy v. Wood, 52 Hun, 48, 4 N.Y.S. 758; Boyd v. Boyd, 9 Misc. 161, 29 N.Y.S. 7; Kreiter v. Bomberger, 82 Pa. 59, 22 Am. Rep. 750.
Carrier must surrender freight to an officer with process valid on its face. 4 Elliott, Railroads, pp. 139, 140, 280, 281, 493, 494; Hutchinson, Carr. § 327; 2 Hutchinson, Carr. pp. 821, 822, 824, 825, 827, 828, and cases cited; Merz v. Chicago & N.W. R. Co. 86 Minn. 33, 90 N.W. 7; McAlister v. Chicago, R. I. & P. R. Co. 74 Mo. 363; Mears v. Cornwall, 73 Mich. 78, 40 N.W. 931; Pingree v. Detroit, L. & N. R. Co. 66 Mich. 143, 11 Am. St. Rep. 479, 33 N.W. 298; Drake, Attachm. §§ 290, 350, 453; Jewett v. Olsen, 18 Or. 419, 17 Am. St. Rep. 745, 23 P. 263; Southern R. Co. v. Heymann, 118 Ga. 616, 45 S.E. 491.
Lee Combs, for respondent.
Carrier's delivery of freight to an unauthorized person is conversion. Central R. & Bkg. Co. v. Lampley, 76 Ala. 357, 52 Am. Rep. 334; Griswold v. Haven, 25 N.Y. 595, 82 Am. Dec. 380; Gibbons v. Farwell, 63 Mich. 344, 6 Am. St. Rep. 301, 29 N.W. 855; Cooley, Torts, 441, 448, 534; Edwards, Bailments, 162; Cooley's Bl. Com. 150, notes; Angell, Carr. 290, 292; Fisher v. Kyle, 27 Mich. 454; Bullard v. Young, 3 Stew. (Ala.) 46; Indianapolis & St. L. R. Co. v. Herndon, 81 Ill. 143; Illinois C. R. Co. v. Parks, 54 Ill. 294; Esmay v. Fanning, 5 How. Pr. 228; Coykendall v. Eaton, 55 Barb. 188; Bissell v. Starr, 32 Mich. 298; Edwards v. Frank, 40 Mich. 616; Hicks v. Lyle, 46 Mich. 488, 9 N.W. 529; Barnum v. Stone, 27 Mich. 336; Merz v. Chicago & N.W. R. Co. 86 Minn. 33, 90 N.W. 7; Angell, Carr. 223.
Seizure under an invalid process is no defense. Kiff v. Old Colony & N. R. Co., 117 Mass. 591, 19 Am. Rep. 429; Gibbons v. Farwell, 63 Mich. 344, 6 Am. St. Rep. 301, 29 N.W. 855; Horn v. Corvarubias, 51 Cal. 524; Mathews v. Densmore, 43 Mich. 461, 5 N.W. 669; Oberfelder v. Kavanaugh, 21 Neb. 483, 32 N.W. 295; Howe v. Freeman, 14 Gray, 566; Merz v. Chicago & N.W. R. Co. 86 Minn. 33, 90 N.W. 7; Great Western R. Co. v. McComas, 33 Ill. 185; Denver, S. P. & P. R. Co. v. Frame, 6 Col. 382.
Carrier's failure to notify shipper of seizure renders former absolutely liable. Robinson v. Memphis & C. R. Co. 16 F. 57; Merz v. Chicago & N.W. R. Co. 86 Minn. 33, 90 N.W. 7; Thomas v. Northern Pacific Exp. Co. 73 Minn. 185, 75 N.W. 1120.
Dealing with property so as to deprive lien holder of it is conversion. Donovan v. St. Anthony & D. Elevator Co. 7 N.D. 513, 66 Am. St. Rep. 674, 75 N.W. 809; Ellestad v. Northwestern Elevator Co. 6 N.D. 88, 69 N.W. 44; Sandager v. Northern Pacific Elevator Co. 2 N.D. 3, 48 N.W. 438.
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, North Dakota, 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. 4,077, to be by it transported for her to Duluth, Minnesota, 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 the 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, North Dakota, 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, Minnesota, 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 Tood, 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 shipped by the plaintiff. A trial was had in district court and 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, appeal 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 them made by respondent were intended to be directed to the admissibility of testimony or evidence of justification under the answer of appellant, but they are invariably inadequate to raise that question. We are at a loss to determine whether the appellant defended the action on the theory that it could justify the delivery of the grain to a third party under its own general denial or that it might do so under the attempted pleas of justification contained in the answers of the other defendants. We set forth enough of the facts to show the theories of the prosecution...
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