Wilson v. Hines

• Decision Date: 01 April 1921
• Docket Number: 3563
• Citation: 196 P. 1007,58 Utah 38
• Court: Utah Supreme Court
• Parties: WILSON v. HINES, Director General of Railroads

196 P. 1007

58 Utah 38

WILSON v. HINES, Director General of Railroads

No. 3563

Supreme Court of Utah

April 1, 1921

Appeal from District Court, Second District, Weber County; A. W Agee, Judge.

Action by John L. Wilson against Walker D. Hines, Director General of Railroads. From judgment for plaintiff, defendant appeals.

AFFIRMED.

Geo. H Smith, John V. Lyle, and C. B. Diehl, all of Salt Lake City and C. R. Hollingsworth, of Ogden, for appellant.

George Halverson, of Ogden, for respondent.

WEBER, J. CORFMAN, C. J., and GIDEON, THURMAN, and FRICK, JJ., concur.

OPINION

WEBER, J.

In his complaint plaintiff alleges that defendant is, and at all times mentioned was, the Director General of Railroads and in possession and control of the Oregon Short Line Railroad that on August 29, 1919, at Ogden, Utah plaintiff delivered to defendant 485 bushels of peaches loaded in one of defendant's cars; that defendant agreed to deliver them within a reasonable time to S. M. Williams at Idaho Falls, Idaho; that the car was without ice; that defendant was unable to ice the car and knew that the peaches would become overripe and spoil if not delivered within a reasonable time; that before the peaches were delivered to defendant plaintiff had agreed to sell them to the said S. M. Williams, the consignee, for $ 970 plus freight, war tax, and cost of loading, which amount Williams had agreed to pay upon delivery at Idaho Falls; that plaintiff paid for loading $ 6, and paid the defendant $ 4.74 war tax and $ 158.09 freight charges; that the carload of peaches was not delivered within a reasonable time and was held at Ogden City from 6 o'clock p. m. August 29th till about 9:30 p. m. September 1st; and that by reason of this delay the peaches became overripe, soft, and unfit for use and were in such condition on September 2, 1919, when delivered at Idaho Falls, and because of such condition the consignee refused to accept them, and plaintiff was damaged in the sum of $ 1,113.83.

The evidence amply supports all the material allegations of the complaint. The jury returned a verdict for plaintiff for $ 988.83 and $ 29.23 interest. From the judgment entered thereon defendant appeals.

Appellant's first assignment of error is that the court erred in not granting his motion for nonsuit.

The peaches were loaded at Ogden in good condition and were then allowed to stand in the railroad yard without refrigeration for more than three days. It is not disputed that they arrived at Idaho Falls in a damaged condition. The consignee refused to accept them because of such condition.

Counsel cites authorities to support the well-settled proposition that it is the consignee's duty to accept shipments of perishable goods that are only partially damaged. That rule is of no avail to appellant, as a reference to the undisputed facts will show. After Mr. Williams, the consignee, had refused to accept the damaged peaches, the appellant's agent at Idaho Falls notified the respondent of the consignee's refusal to accept the same. Upon being asked what should be done with the carload of peaches, plaintiff replied: "I can't do anything with it. You people do the best you can." The appellant undertook to sell and did sell the peaches, and realized the sum of $ 341, which he retained. It is true, as counsel contends, that where goods are damaged, but not wholly destroyed, while under the common carrier's control, the consignee cannot legally refuse to accept them and hold the carrier liable for their whole value; it being the consignee's duty to accept delivery subject to his claim for damages. In this case, however appellant, at the request of plaintiff, accepted the duty of disposing of the damaged peaches. The consignee's duty is therefore not pertinent in this controversy; the only question being what was the amount of respo...