Tradewell v. Chi. & N. W. Ry. Co.

• Decision Date: 17 June 1912
• Citation: 136 N.W. 794,150 Wis. 259
• Court: Wisconsin Supreme Court
• Parties: TRADEWELL v. CHICAGO & N. W. RY. CO.

150 Wis. 259

136 N.W. 794

TRADEWELL

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

June 4, 1912.

Dissenting opinion June 17, 1912.

Appeal from Circuit Court, Langlade County; John Goodland, Judge.

Action by E. S. Tradewell against the Chicago & Northwestern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Winslow, C. J., and Marshall and Barnes, JJ., dissenting.

This is an appeal from a judgment of the circuit court for Langlade county in favor of the plaintiff resulting from loss of shipment in transit. The complaint alleges that the plaintiff delivered to the Southern Pacific Railway Company at Santa Anna, Cal., a box of household goods consigned to E. S. Tradewell at Antigo, Wis., to be forwarded by freight; that at the time plaintiff paid to said railway company the sum of $2.85 as freight charges and took a receipt therefor; that said initial carrier agreed and undertook to safely carry said goods over its line and such other lines as might be necessary to the city of Antigo, Wis., and there deliver the same to plaintiff; that in course of transportation said box of goods was delivered to the defendant, and said defendant for a consideration undertook and agreed with plaintiff to safely carry the goods over its line and deliver them to plaintiff; that it failed to safely carry and deliver said goods; that the goods were of the value of $85.

The defendant answered admitting that the box of goods was received by it in its capacity as common carrier and transported, carried, and handled as such common carrier under a written contract by which the value of the goods was agreed to be not more than $10 per hundredweight, and that the liability of the defendant was in any event limited to the declared value of $10 per hundredweight; that the plaintiff had notice of defendant's tariffs, schedules, and classifications relating to shipments; that by said tariffs, schedules, and classifications it is provided that the rate or tariff for shipping household goods of the value of $10 per hundredweight should be $3.15 per hundredweight, and where the value exceeded $10 per hundredweight an addition of 50 per cent. should be made to the rate per hundred pounds, and, where no value per hundred pounds was agreed upon, an addition of 50 per cent. should be made to the rate per hundred pounds; that the plaintiff's property was shipped at the rate and classifications provided where the declared value was not in excess of $10 per hundred pounds; that the weight of the shipment was 90 pounds. The answer denied all other allegations of the complaint.

A jury was waived and the court found: (1) That on the 31st day of May, 1910, there was delivered to the Southern Pacific Railway Company at Santa Anna, Cal., on behalf of plaintiff, a box of household goods consigned to E. S. Tradewell, Antigo, Wis., to be forwarded by freight. (2) That the goods were safely, securely, and firmly packed (enumerating said goods). (3) That at the same time and place the wife of plaintiff paid said Southern Pacific Railway Company the sum of $2.85 as freight charges on said shipment and took a receipt. (4) That in consideration of the freight so prepaid said Southern Pacific Railway Company agreed and undertook to safely carry said goods over its line and deliver the same to another carrier on the route to Antigo, Wis. (5) That the Southern Pacific Railway Company in consideration of the sum of $2.85 carried said box of goods over its lines and delivered the same at the end thereof to a connecting carrier to be transported to Antigo, Wis. (6) In the course of transportation said box and the goods were delivered to the defendant company. (7) That the said defendant company received said box and the goods from one of the connecting carriers and handled, shipped, and transported said box and goods as a common carrier. (8) That the defendant company failed to deliver at Antigo, Wis., the articles (enumerating them). (9) That the defendant has not received any of the articles shipped to him as above set forth and described in finding No. 8. (10) That the goods described were of the value of $85.

And as conclusions of law the court found that the defendant company is liable to plaintiff in the sum of $85 for failure to deliver said goods. Defendant excepted to the findings of fact and conclusions of law. Judgment was entered for plaintiff, from which this appeal was taken.

William G. Wheeler (Edward M. Smart, of counsel), for appellant.

Roy C. Smelker, for respondent.

KERWIN, J. (after stating the facts as above).

A preliminary question arises upon the face of the findings as will appear from the statement of facts which should be noticed. The ninth finding states that the “defendant has not received any of the articles shipped to him.” This is obviously a clerical error and should read, “Plaintiff has not received any of the articles shipped to him.” The error is apparent from the fact that the other findings find that the defendant did receive the goods, and the answer admits it.

[1] 1. It is insisted that the court erred in finding that the defendant failed to deliver the missing goods. It is said that the rule of liability of carriers as insurers is so strict and severe that the plaintiff should be held to a strict line of proof in establishing that the loss occurred during the custody of the carrier. It is also argued by counsel for appellant that the proof does not establish that the contents of the box may not have been taken from it while it was awaiting shipment. The answer admits the receipt of the box of goods by the defendant as a connecting carrier. The evidence shows that the box of goods was delivered for carriage to the initial carrier. The proof is sufficient to show that the plaintiff made a prima facie case of failure of defendant to deliver the goods. Laughlin et al. v. Chicago & N. W. R. Co., 28 Wis. 204, 9 Am. Rep. 493.

[2] There is evidence that the box in question was delivered at the residence of plaintiff during the afternoon in the absence of Mrs. Tradewell; that she found it there in the evening; she saw it standing on end, pushed it over, and it seemed light; there was a hole in the box, but not large enough so the contents could have been taken out through it; that there were no other visible external signs of interference with the box except that when it was opened it was found that the boards on the top of the box had been broken and the nails did not hold fast, which indicated it had been opened. Mrs. Tradewell testified to the articles lost as found by the court below. The defendant offered no evidence. We think the evidence sufficient to support the finding that defendant failed to deliver the missing goods.

[3] 2. It is argued that there was not sufficient proof of ownership or privity with the contract of shipment. The plaintiff, consignee, is the husband of the person who shipped the goods, and the bill of lading names him as consignee. Counsel for appellant says that the undisputed evidence is that Mrs. Tradewell is the owner of the property. Mrs. Tradewell testified that the plaintiff, her husband, was the owner of the goods. Moreover, no issue of ownership was raised by the answer, and the complaint alleges that the plaintiff is the consignee. The general rule is that the right of action for damages is prima facie in the consignee. Hutchinson on Carriers, vol. 3 (3d Ed.) § 1311, p....