Wood Livestock Co. v. Oregon Short Line Railroad Co.

• Citation: 298 P. 371,50 Idaho 524
• Decision Date: 16 April 1931
• Docket Number: 5646
• Parties: WOOD LIVESTOCK COMPANY, a Corporation, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant
• Court: United States State Supreme Court of Idaho

298 P. 371

50 Idaho 524

WOOD LIVESTOCK COMPANY, a Corporation, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

No. 5646

Supreme Court of Idaho

April 16, 1931

BAILMENT-CARRIERS-LOSS OF GOODS.

1. To effect "bailment," there must be delivery and subsequent exclusion of bailor's possession.

2. Where shipper began loading car with wool, but carrier's agent, on approach of nightfall, suspended loading and placed seal upon car which shipper had no right to break and wool was stolen during night, bailment existed.

3. That breaking of car seals was criminal offense did not relieve carrier of degree of care it should have exercised as bailee to prevent theft.

4. Where wool was stolen from box-car before shipper completed loading, carrier's negligence held for jury.

5. In shipper's action against carrier for damages resulting from theft of wool from box-car, evidence supported verdict for shipper.

APPEAL from the District Court of the Ninth Judicial District, for Clark County. Hon. C. J. Taylor, Judge.

Action by the Wood Livestock Company against the Oregon Short Line Railroad Company for damages resulting from a theft of wool from a box-car. Judgment for plaintiff. Affirmed.

Judgment affirmed; costs to respondent. Petition for rehearing denied.

George H. Smith, H. B. Thompson and L. H. Anderson, for Appellant.

A bailment is one of contract, either express or implied, and before the relation of bailor and bailee can exist, there must be a valid delivery to and an acceptance by the person sought to be charged. There must be a meeting of minds, for a bailment cannot be placed upon a person without his knowledge or consent. (Riggs v. Bank of Camas Prairie, 34 Idaho 176, 18 A. L. R. 38, 200 P. 118; 3 R. C. L. 80; note, 1 A. L. R. 395, 396, 397; 6 C. J. 1103; 10 C. J. 221; Samples v. Geary, (Mo. App.) 292 S.W. 1066; Broaddus v. Commercial Nat. Bank, 113 Okla. 10, 42 A. L. R. 1331, 237 P. 583; Suits v. Electric Park Amusement Co., 213 Mo.App. 275, 249 S.W. 656; Walker v City of Buffalo, 106 Misc. 640, 175 N.Y.S. 274.)

To constitute a delivery there must be a full transfer of the property, either actual or constructive, so as to exclude the possession of the owner, and give the bailee sole custody and control. (Note, 1 A. L. R. 395, 396; 6 C. J. 1103; 10 C. J 221; Broaddus v. Commercial Nat. Bank, 113 Okla. 10 42 A. L. R. 1331, 237 P. 583; Suits v. Electric Park Amusement Co., supra; Walker v. City of Buffalo, supra; Wentworth v. Riggs, 159 A.D. 899, 143 N.Y.S. 955.)

A bailee is required to exercise only reasonable care, or to exercise that degree of skill and diligence that a prudent man would under like circumstances exercise in his own affairs. (45 C. J., sec. 27, p. 658; Strong v. Western Union Tel. Co., 18 Idaho 389, Ann. Cas. 1912A, 55, 109 P. 910, 30 L. R. A., N. S., 409-417; Lane v. Oregon Short Line R. R. Co., 34 Idaho 37, 15 A. L. R. 197, 198 P. 671; Charnock v. Texas & P. R. Co., 194 U.S. 432, 24 S.Ct. 671, 48 L.Ed. 1057.)

Peterson, Baum & Clark, for Respondent.

It is the position of the plaintiff that in these circumstances there has been an acceptance of the wool by the railroad company in the sense at least that they would be liable as a warehouseman if not as common carrier, and would be liable for ordinary care of the goods thus entrusted to them. It is well established law that goods delivered at a railroad depot and the depot agent notified and his attention directed to their destination, constitutes delivery to the railroad company and they are liable, at least for ordinary care of the goods. (Southern R. Co. v. Johnson, 2 Ga.App. 36, 58 S.E. 333.)

Wool delivered to freight house, sacked and marked with weights and numbers and name and address of the consignee, with notice of its delivery to the carrier's agent through the information that "that pile of wool was for Boston," has been held to be sufficient delivery. (Nichols v. Smith, 115 Mass. 332.)

Where cotton was delivered upon a railroad platform with the knowledge of the carrier's agent, where by custom such delivery was uniformly regarded by the shipper and carrier as such, there was delivery to the railroad company. (Ft. Worth & D. C. R. Co. v. Martin, 12 Tex. Civ. App. 464, 35 S.W. 21.)

LEE, C. J. Budge, Givens, Varian and McNaughton, JJ., concur.

OPINION

LEE, C. J.

Plaintiff and respondent, Wood Livestock Company, sued defendant and appellant, Oregon Short Line Railroad Company, for damages alleged to have been suffered through a theft of wool taken from a box-car at Spencer during the night of June 23, 1927, and after the said car had been partially loaded and sealed with the regular automatic seals by appellant's wool checker.

The complaint alleged substantially that on or about June 23, 1927, "the plaintiff requested the defendant to spot a freight car in the defendant's yard at Spencer, Idaho, for the purpose of loading a carload of wool and that the plaintiff and an agent of the defendant thereupon commenced loading the same for shipment, but, before said car was completely loaded and after several bags of wool had been placed therein under the direction of defendant's agent and upon the approach of nightfall, 'the defendant refused to permit the said car to be completely loaded, and thereupon sealed said partially loaded car with a small and fragile seal of tin or lead' and then ordered that plaintiff 'finish the loading of said car on the morrow'; that, after said car was partially loaded and after the said wool had been accepted and received by said defendant and during the ensuing night after the sealing of said car, the said car was left in a remote part of the yards at Spencer, some distance from the depot and 'that during said night the defendant carelessly and negligently failed to provide any watchman or agent, or to take any steps whatever to watch or take care of, or prevent the theft of said wool, and said defendant, during said time, negligently and carelessly failed to lock said car' and, as a result of said carelessness, 'thieves entered said car and stole therefrom 1,404 pounds of wool' belonging to plaintiff, and that thereafter forty-six pounds were recovered. Plaintiff prayed judgment in the sum of $ 481.96."

Appellant admitted the car order, the spotting thereof, and the commencement of the loading. It further admitted "that before said car was completely loaded and after about thirty-three bags of wool had been loaded therein and upon the approach of nightfall the plaintiff suspended the loading of said car until the following morning and that during the ensuing night, after the doors of said car had been sealed and before loading was resumed on the next day, thieves broke into and entered said car and stole approximately 1,104 pounds of wool, of which 46 pounds was recovered by the plaintiff."

At the close of plaintiff's evidence, defendant moved for a nonsuit, which motion having been denied, defendant submitted its evidence and, after the parties had rested moved for a directed verdict. This motion was likewise denied; and, a verdict having resulted in plaintiff's favor, defendant appealed from the judgment entered thereon.

Of the several errors assigned, appellant argues one only, the denial of its motion for a directed verdict. The correctness of the court's ruling is admittedly based upon the determination of two propositions: was there a valid delivery to and an acceptance by...