150 N.E. 268 | Ill. | 1925
The appellant was granted a certificate of importance and an appeal from a judgment of the Appellate Court affirming a judgment of the municipal court of Chicago in a suit of the fourth class brought in that court by Sam Bruner against the Grand Trunk Western Railway Company. The parties will be referred to as plaintiff and defendant. The plaintiff recovered a judgment against defendant for $480.85, from which the defendant prosecuted an appeal to the Appellate Court, which court affirmed the judgment. The plaintiff's statement of claim in substance alleged plaintiff is holder of a bill of lading issued November 9, 1920, by defendant for shipment of a car of apples delivered in good condition, which defendant and the Soo Line agreed to safely carry from Gooding, Michigan, to Oshkosh, Wisconsin; that the apples were not safely transported but when delivered were damaged. The affidavit of defense denied the apples were delivered to defendant and the Soo Line in good condition and that defendant agreed to transport them from Gooding to Oshkosh, and avers it issued its bill of lading on November 9, 1920, to I. Kramer for the transportation of the car of apples, consigned to the Northern Produce Company, in Chicago; that after the car had arrived in Chicago the consignee directed defendant to ship it to Oshkosh, and therefore defendant delivered the car to the Soo Line, and it was by that road, with due and proper care, delivered at Oshkosh, and defendant denied the apples were damaged.
The facts proved are that plaintiff was in Chicago on November 16, 1920, examined the car of apples then on the team-track and bought them from the Northern Produce Company, to whom they were consigned, and the car was re-consigned to the Northern Produce Company at Oshkosh, Wisconsin. Plaintiff paid $150 cash at the time, paid the balance when the car arrived at Oshkosh, and surrendered the bill of lading to the Soo Line. The car was reconsigned *423 by defendant's agent to the Northern Produce Company at Oshkosh via the Soo Line, with instructions to notify plaintiff. The diversion order contained the statement, "Protect through rate, * * * charges follow," signed, "Northern Fruit Produce Company." No new bill of lading was issued by defendant. The car of apples arrived at Oshkosh November 23. Plaintiff testified when he examined the apples in Chicago they were in perfect condition, but when they arrived at Oshkosh they were wet, frozen and more than half of them worthless. There were 500 bushels of apples in the car. The market value of bulk apples in good condition was from $2.75 to $3 per bushel. He lost 300 to 350 bushels. He was corroborated by Louis Susman, who testified he was with plaintiff when he inspected the apples in Chicago and when he received them in Oshkosh.
The re-consigning rules of defendant, approved by the Interstate Commerce Commission, were introduced in evidence and are as follows:
"Rule 33. — Re-consignment on fruits and vegetables means (a) a change in consignee, a change in route or a change in destination, made while the shipment is in transit to its billed destination, also if made after arrival at the billed destination, provided this latter change involves a movement beyond the billed destination.
"Rule 34. — Except as provided in Rule 36, each car will be charged at the through rate from original point of shipment to final destination in effect on date of shipment from point of origin, provided initial road's tariffs lawfully on file with the Interstate Commerce Commission on interstate traffic, and with the Canadian Railway Commission and other railroad commissions as to traffic subject to their jurisdiction, grants the privilege."
Plaintiff paid the entire freight for the shipment from Gooding to Oshkosh at the time the apples were delivered there. The Soo Line was made a defendant with the Grand *424 Trunk Company. The case was tried before the court without a jury. Each railroad company moved the court for a finding and judgment in its favor. Neither of them offered any testimony. The court allowed the motion of the Soo Line for judgment in its favor but denied the motion of the Grand Trunk Company and rendered judgment against it for $480.85.
Defendant contends that at the time the re-consigning order was given to and accepted by it, it had performed all the duties imposed upon it by law as a common carrier by delivering the car of apples in good condition to the consignee at Chicago, where plaintiff, after inspection, bought them from the consignee, and that in delivering the car to the Soo Line defendant acted as a forwarder and not a carrier. The re-consignment rules provided for a change in consignee, a change in route or in destination while in transit, and also after arrival at its billed destination. Through rate from the original point of shipment will be charged to final destination. Defendant accepted the diversion order and forwarded the shipment. The consignee at Chicago paid no freight there, but all freight charges from Gooding to Oshkosh were paid there by plaintiff. The bill of lading was not produced and offered in evidence. It was surrendered by plaintiff to the Soo Line when the car was delivered to him, and notice was served on defendant to produce it, but it did not do so. It is not claimed a new bill of lading was issued by the defendant for the transportation from Chicago to Oshkosh.
The important question presented is whether under the Carmack amendment to the Interstate Commerce act defendant is liable as the initial carrier of the shipment from Gooding, Michigan, to Oshkosh, Wisconsin. Under that amendment the initial carrier is liable for damages occurring while the shipment is in charge of a connecting carrier, even though a change in the destination has been made with the initial carrier's consent. (Gamble-Robinson Commission *425 Co. v. Union Pacific Railroad Co.
Defendant insists the suit was in contract against joint defendants, and the judgment should have been against both defendants or neither. This contention the Appellate Court held was not tenable as the action was of the fourth class to recover damages for negligence and may be treated as in tort. No written pleadings are required, and the rules applicable are the same as govern actions before justices of the peace. That holding is in accordance with Edgerton v. Chicago, Rock Islandand Pacific Railway Co.
It is further contended the proof did not show the apples were in good condition at the point the shipment originated. According to the proof the apples were in good condition when inspected in Chicago, so they must have been in good condition at Gooding, Michigan, the origin of the shipment. When the apples were received at Oshkosh they were frozen and in bad condition. The conclusion must be that the damage occurred after the apples were inspected by plaintiff in Chicago. The proof, in the absence of any *426 evidence to the contrary, established that the damage occurred during the movement from Chicago to Oshkosh.
Plaintiff has by the assignment of cross-errors raised the objection that the judgment is for a less sum than the evidence showed he had sustained as damages. The abstract shows the judgment was rendered on motion of plaintiff and does not show it was rendered for a less amount than he claimed. We think he is in no position to complain that the judgment was for a less sum than the damages he sustained.
We are of opinion the judgment is sustained by the law and the evidence, and the judgment of the Appellate Court is affirmed.
Judgment affirmed.
