83 Kan. 574 | Kan. | 1910
George T. Brown sued the Missouri, Kansas & Texas Railway Company on account of coal alleged to have been lost by it in the course of shipments made to him over its line. The court appointed a referee to report on the facts. The referee, among other findings, reported that no competent evidence had been introduced to show either the quantity of coal shipped to the plaintiff or the quantity actually received by him. The court, being of the opinion that there was competent evidence on both points, modified these findings accordingly, found the amount of shortage shown, and gave judgment for the plaintiff. The defendant appeals and urges two grounds of error: First, that the court had no authority to change the referee’s findings of fact, and, second, that the evidence did not support the judgment.
In volume 34 of the Cyclopedia of Law and Procedure it is said:
“While in some jurisdictions the court may disregard the findings of fact of the referee and make new findings on the evidence reported, or modify or change the facts as found, the general rule is that the court has no such power.” (p. 885.)
This difference in practice exists, but the preponderance of authority in favor of what is stated as the general rule is not so great as might seem from the number of cases cited. Some of them involve a different phase of the subject, some are affected by statute, and one turns upon the fact that the reference was authorized only by the agreement of the parties. In Missouri, as shown by the note to the text quoted, the court may modify the referee’s findings of facts where the reference is or might be compulsory, but not where no referee could have been appointed except by consent. The case of Boatmen’s Bank v. Trower Bros. Co., 181 Fed. 804, is based upon that distinction. (See, also, 17 Dec.
Some of the coal shipments originated on the defendant’s line and some on that of another company. The referee, found that there was no evidence as to the weight of any shipment. The court changed this finding so that it read in effect that there was no evidence •on this point except the weights given by the consignor to the carrier, which were adopted as a basis for freight ■charges and inserted in the bills of lading. Ordinarily bills of lading are prima facie evidence against the carrier issuing them of the amount of goods received. (4 A. & E. Encycl. of L. 522; 1 Hutch. Car., 3d ed., § 158.) The defendant maintains that here they have mot that effect, because of the insertion of the qualify
The question whether the recital of a bill of lading as to quantity is competent evidence against a connecting carrier is more difficult. In section 1348 of volume 3 of the third edition of Hutchinson on Carriers it is said:
“The receiving carrier will be regarded as the agent of the succeeding connecting carriers for the purpose of accepting the goods for transportation over the connecting lines, and the receipt or bill of lading given by such receiving carrier will be competent evidence, in an action against any of the succeeding carriers into whose possession the goods may have come, to show the delivery for transportation, the condition of the goods' at the time of such delivery, and the terms of the shipment.”
The only ease cited in support of this text is Southern Express Co. v. Hess, 53 Ala. 19, where exceptional circumstances were relied upon as making the company receiving the goods the agent .of the connecting carrier. In the present case we think that the act of the defendant in collecting freight charges upon the basis of the weights stated in the bills of lading was an adoption by
The connecting carrier is presumed to have received the quantity of goods shown to have been delivered to the initial carrier. (3 Hutch. Car., 3d ed., § 1348, second paragraph of note 6; Cooper & Co. v. Geo. Pacific Railway Co., 92 Ala. 329; S., F. & W. R’y Co. v. George L. Harris, 26 Fla. 148.) The remaining question, therefore, is whether the plaintiff showed that he received a less quantity of coal than the bills of lading described.
The plaintiff testified that the custom was for the railroad company to place a car of coal on the sidetrack and notify him; that he would then notify his teamsters and have them unload it, hauling the coal to his scales, where it was weighed. The company’s liability as a carrier therefore ceased upon his assuming control. (6 Cyc. 457.) The referee found that the plaintiff correctly weighed the coal that was transferred from the cars to his scales, but that there was no competent evidence that all the coal in any car was so transferred. The court changed this finding concerning the lack of evidence, and held that as the plaintiff had shown due care in the handling of the coal there was no presumption of any loss after he took charge. The plaintiff further testified in general terms that he always exercised supervision over the drivers; that he was- careful to see that they unloaded the coal as he ordered it; that he oversaw them in the performance of their duties; .that he had a general supervision of everything that went on, and a knowledge of the shortage of every car. But upon being asked how he knew that the teamsters brought all of the coal from the cars to the scales he answered: “There is a railroad law that requires us to do certain things, and when they were not done we find it out instantly.” No explanation was given as to what he meant by this. H¿ also said in answer to the same question that the teamsters were paid by the ton for hauling, and would not be apt to throw any of it away. At another time he said he was testifying on the
The judgment is reversed and the cause remanded,: with directions to enter judgment for the defendant.