163 Iowa 449 | Iowa | 1914
The plaintiff is a dealer in old iron and other ' junk. On June 9th he delivered to the defendant company at Stanhope, Iowa, a carload of junk, being principally old iron. He claims to have included therein 2,765 pounds of rubber, being in the form of old rubber boots and shoes, and 527 pounds of copper, largely in the form of old boilers. The shipment was consigned by the plaintiff, as consignor, to himself, as consignee, from Stanhope to Marshalltown. The car was duly sealed and put en route, and it reached Marshall-town on the next day, Saturday, between 2 and 3 p. m., in good condition and with seals unbroken. It was immediately put upon the defendant’s scale track and there remained until the following Wednesday morning. On Wednesday morning the plaintiff discovered the car door open. He reported the discovery to the defendant’s officers and claimed that much of his rubber and copper had been stolen. The car contained
The real issue of fact in the ease under the evidence was whether the car ever contained any more rubber or copper than was found therein on Wednesday morning. The plaintiff had no place of business in Marshalltown and was not known to the railroad men in charge at Marshalltown. He arrived in Marshalltown himself about Saturday noon in. advance of his car and sold his arriving shipment to another junk dealer, one Friedman. Monday and Tuesday following the arrival of the car 'were Jewish holidays and were observed as such by the plaintiff, who was of that faith. This fact was given by him as the reason why he-gave no attention to his shipment prior to Wednesday morning. One of the questions upon the record is whether the liability of the defendant, if any, was that of an insurer, as a common carrier, or that of a warehouseman only. The plaintiff charged the liability as that of an insurer and pleaded no negligence. The various errors assigned will be noted in due order.
The defendant’s answer raised no issue as to the interest of the plaintiff or as to a transfer thereof. The testimony quoted was by no means conclusive that the defendant could not be damaged by a-loss of the shipment or a part thereof. The word “sold” is used with variety of meaning, especially in common parlance. The question whether the delivery of the bill of lading transferred the title to Friedman is not controlling. If the plaintiff sold the arriving shipment to Friedman at an agreed rate per pound, manifestly he could collect from Friedman only for the number of pounds arriving. The shipment was consigned to himself. He could direct delivery to Friedman and could deliver the bill of lading to Friedman for the same purpose, but Friedman in such case would be liable to him only for the goods thus delivered. If, therefore, there was a loss of goods in transit, the plaintiff could be damaged thereby.
We feel compelled to say, however, that the plaintiff’s case, as made upon the record, is a very doubtful one on its larger merits. The burden was on the plaintiff to show the amount of rubber and copper he had placed in the ear at Stanhope. This pivotal fact rests upon the following testimony of the plaintiff:
We both did the weighing. I kept record of the weight, probably two or three days. I never looked at it again. I never kept a copy of it. We weighed the rubber on the same scales that we weighed the iron on. These were the heavy scales on the east side of the street running north and south. I drove the wagon. I didn’t weigh it myself. I would sit up on the load. There was a little building or an office with a window where these scales were, and the scales were on the
The foregoing related to the weight of the rubber but not of the copper. As to the weighing of the copper, the plaintiff and his co-laborer, Offman, both testified that they carried it in parcels in their arms and weighed such parcels successively on certain platform scales near a grocery store
This state of the evidence is not favorable to the contention tlxat the defendant suffered no prejudice by the misconduct of counsel in argument. The language used was calculated and presumably intended to close the eyes of the jury against a dispassionate view of the evidence. We find nothing in the record to justify us in holding that it did not have that effect. On the contrary, the tendency of the record is to support the theory of prejudice.
There was neither allegation in the petition nor evidence in the record of any negligence on the part of the defendant as a warehouseman. In his petition the plaintiff charged the liability of the defendant only as that of a common carrier and insurer and charged no negligence as warehouseman. There was no occasion, therefore, for the statement in instruction No. 8 that the defendant would be liable for reasonable care as a warehouseman, and the instruction was technically erroneous in this respect. Nevertheless, if the jury had followed instructions 6 and 7, under the undisputed evidence, they must have found for the defendant.
These instructions, as given, were the law of the case whether abstractly right or wrong. For the reasons indicated, a new trial must be awarded. The judgment below is accordingly reversed, and the ease remanded. — Reversed and Remanded.