Brooks v. Northern Pac. Ry. Co.

114 P. 949 | Or. | 1911

Mr. Justice Moore

delivered the opinion of the court.

It is maintained that the complaint does not aver the giving of any notice to defendant’s agent in Forsythe of the contents of the trunks when they were delivered for transportation, and, such being the case, the pleading does not state facts sufficient to constitute a cause of action, and an error was committed in basing a judgment thereon. It is not expressly alleged in the complaint that the baggageman was notified by plaintiff that the trunks contained shoes. The mere statement in the pleading of “sample trunks” does not necessarily imply that defendant’s agent knew these receptacles contained anything more than plaintiff’s personal baggage: Rossier v. Wabash R. Co., 115 Mo. App. 515 (91 S. W. 1018). It will be remembered that the term “sample trunks” as first used in the excerpt quoted is qualified by the phrase “containing shoes,” and, as thereafter employed, the words “said trunks” are limited by the designation “containing said samples.” The sufficiency of the complaint was not challenged by demurrer. Objections, however, were interposed to the admission of testimony tending to show that, when the trunks were checked, defendant’s agent was notified that they contained shoes.

1. When the averments of a complaint are tested by a demurrer, they are to be construed must strongly against the pleader.

2. On questions relating to the admissibility of evidence, all intendments are to be invoked in support of the allegations of the pleading: Cederson v. Oregon Navigation Co., 38 Or. 343 (62 Pac. 637: 63 Pac. 763).

3. Measured by this rule, though the averments of. the complaint respecting these facts are quite informal, it is believed the pleading is sufficient, as its allegations were not contested by a demurrer.

4. It was the duty of the railway company promptly to transport the trunks, and if its agent, with knowledge of their contents, checked them, the defendant is responsible for the delay: Oakes v. N. P. R. Co., 20 Or. 392 (26 Pac. 230: 12 L. R. A. 318: 23 Am. St. Rep. 126); Wells v. Great Nor. R. Co., 59 Or.-(114 Pac. 92). The complaint, in the absence of a demurrer, being adequate as to the averments of notice of the contents of the trunks, no error was committed in permitting plaintiff to testify that he told the defendant’s agent the sample trunks were filled with shoes.

5. The remaining question is the standard of indemnity for the loss which plaintiff sustained. The measure of a passenger’s damages for a carrier’s delay in forwarding his trunks is the value of the use of the property in the meantime: Gulf R. Co. v. Vancil, 2 Tex. Civ. App. 427 (21 S. W. 303); Texas R. Co. v. Douglas, [Tex. Civ. App.] (30 S. W. 487). The plaintiff’s testimony is to the effect that without samples he could not secure orders, and that during his stay in Butte competitors weré in the field, at which time and place his average commission would have been $20 a day.

6. The complaint alleges as special damages the expenses incurred by plaintiff on account of board and lodging for three days. Pie testified that he lived at Ocean Park, Wash., and that the delay postponed, to that extent, his arrival home, and that while waiting for his trunks his expenses were $16. If he were at his domicile, it is possible that his living expenses might have been less than at a hotel, and, as he was required to pay the cost of his meals at his residence, it would seem that he is entitled to recover the difference between such cost and the sum paid out at Butte as expenses. But, however that may be, the difference is not disclosed by the testimony, and, as the court did not allow the sum demanded, we believe no prejudicial error was committed in awarding $12.50 for that purpose.

Other errors are assigned, but, deeming them unimportant, the judgment is affirmed. Affirmed.