Denver, South Park & Pacific R. R. v. Frame

| Colo. | Dec 15, 1882

Stone, J.

Appellee sued the appellant company to recover for the loss of a box and contents, delivered to the company for shipment over their railroad to Buena Vista. Appellee, in testifying, described each article contained in the box from a list produced, and stated their value separately. The goods consisted of .articles of wearing apparel for himself and wife, bedding, table-ware, cooking utensils and some carpenter tools. Witness stated the cost price, ten months previously, amounting to $372.50, and deducted $72.50 “for wear and tear.”

Upon cross-examination the appellee stated that certain of the goods, which he specified in detail, belonged to his wife as her individual property.

Appellant thereupon moved to strike out all evidence of the loss and value of such goods as were admitted by appellee to be the separate property of his wife. The motion was overruled, and this is made the ground of the first error assigned.

Counsel for appellant contends that since the code requires that all suits shall be prosecuted in the name of “the real party in interest,” and since our statute confers upon married women the right to sue in respect to their separate property the same as if they were sole, no right of action accrued to the appellant in this case respecting the goods which were owned by his wife.

This contention cannot avail the appellant as a defense to the action. The appellee had a special property in the goods and a beneficial interest in the recovery therefor, which, gave him a right to sue in his own name the same as in actions of replevin for the possession, or in trover upon a conversion.

In this class of cases an agent or bailee may sue where he has a special property in the goods or a beneficial interest therein. Angelí on Carriers, sec. 492.

To the extent of this interest the appellee was a real party in interest.

Besides, the bill of lading in evidence shows that the goods were shipped by appellee in his own name, that he paid the freight therefor, and that the box was to be delivered to him at the point of destination. He was therefore both consignor and consignee, and appellant having dealt with him as the rightful custodian, cannot be heard to say that he is not entitled to sue on a breach of the contract.

Mr. Angelí, in treating of the proper parties to sue, as between consignor and consignee on a contract of carriage, lays down the following summary of the law in such cases: First, where the entire property is in the consignor, he is the proper party to sue. Second, where the entire property is in the consignee, the latter sues. Third, where both are interested, one as general, the other as a special owner, then either may sue. Angelí on Carriers, sec. 495.

And a recovery in such action, properly instituted, will be a bar to any subsequent action against the same defendant at the suit of another party having either a general or special property in the goods. Redfield on Carriers, sec. 321.

In such cases, “ whichever first obtains damages, it is a full satisfaction.” Angell on Carriers, sec. 493; G. W. R. R. Co. v. McComas, 33 Ill. 185" court="Ill." date_filed="1864-01-15" href="https://app.midpage.ai/document/great-western-railroad-v-mccomas-6951117?utm_source=webapp" opinion_id="6951117">33 Ill. 185.

Where the consignor ships on a special agreement that he pays freight, it is no answer in a suit by him that he is not the owner. Angelí on Carriers, sec. 500.

The carrier, as agent for the consignor from whom it receives the property for shipment, is not at liberty to dispute the title of such consignor in an action brought by him. G. W. R. R. Co. v. McComas, supra.

The second and third assignments are based upon the same ground, substantially, as the first, and are suffh ciently answered by what we have thereon announced. The questions presented by the other assignments of error arise upon'the rulings of the court allowing cei’tain questions to be answered by a witness and in disallowing others.

One Jonsen was called by appellant as an “expert ” to testify as to the value of the lost goods. He stated that he was “a dealer in furniture and second-hand household goods ” in Buena Yista, and knew the value of such goods at that point in June, the month in which the goods in question were shipped. The witness was then asked the following question: f ‘ Supposing the overcoat mentioned in this list by the plaintiff to have been made of good woolen stuff, bought new ten months ago at a cost of fifteen dollars, and to have received the most careful usage since that time that a laboring man bestows upon such goods, what would be its value in the market at Buena Yista in June last ? ” An objection to this question was sustained by the court, and this ruling is made the ground of the fourth assignment of error.

Although of little importance, considering that the trial-was to the court without the intervention of a jury, we think that the ruling of the court was not improper.

The statement of the witness that he was a dealer in “furniture and second-hand household goods,” was no evidence that he knew anything more about the value of clothing than the court who was trying the case. More than this, there was no evidence that there was any “market” or “market value” whatever at Buena Vista for the property ixi questioxx.

In case of loss of goods for which a carrier becomes liable, the gexxeral rule is that the measure of damage is the value of the goods at the point of destinatioxx. Sedgwick on Meas. Daxxx. 356.

But this gexxeral rule is not applicable in every case, axxd to every clxxss axxd species of personal property. The rule is more especially applied to goods shipped for sale ixx the ordinary course of commercial traffic, where a profit is expected' to be realized from sale at the point of destixxatioxx, over the cost price at place of shipxxxexxt.

As to certain other goods, such as wearixxg apparel in use, and certáin articles of household goods and furniture, kept for personal use and xxot for sale, while they have a real ixxtrinsic value to the owxxer, they xnay have little or no xnarket value whatever at the point of destinatioxx; they are not shipped as marketable goods. The market value of many such articles depends on style and fashioxx, irrespective of actual value for use. Ixx some cases the owner may not be able to replace thexxx in any market. Ixx such cases the value is to be properly fixed by consideratioxxs of cost and of actual worth at the time of the loss, without reference to what they could be sold for in a particular market, or hawked off for by a secondhand dealer where they happexxed to be unladed.

The following question was then asked the witness: “Please look at the list of goods and examine the description and character of the same as mentioned in the-list; and supposing those goods, as testified by the plaintiff, to have been purchased ten months ago at the prices mentioned in that list, and supposing them to have received the best of cafe which a laboring man in their use could bestow upon them, what depreciation in value would they have sustained at the end of that time ? ”

The question was objected to by appellee, and the objection being overruled, the witness answered: “They would have depreciated at least fifty per cent, in value.”

The appellant then “offered to prove by expert, testimony” of this witness, “that the goods mentioned by the plaintiff could not possibly have been packed into a box of the dimensions sworn to by the plaintiff;” and appellant further “ offered to prove by expert testimony, that the articles claimed by plaintiff to have been packed in that box would have weighed at least four hundred pounds instead of two hundred pounds, as shown by the shipping bill. ”

Both these offers were objected to by appellee and the objections sustained, and the error predicated thereon constitutes the fifth and sixth assignments.

The testimony offered was wholly incompetent. Without an inspection of the box and the articles themselves, or knowledge of the size and weight of each, such an opinion could have had no value or weight whatever against the positive testimony of the appellee that the box contained all of the articles mentioned in the inventory produced by him in court. Even if such a question could be allowed under any circumstances, this witness was not shown to be an expert in weights and measures.

Upon cross-examination this witness testified that he never saw the goods in question, that he did not know whether they were bought in Canada or the United States, and the following question was then propounded: “Supposing them to.have been bought in Canada ten months ago, where there is no protective tariff, and brought from there to the United States, where such goods are worth more new, would you take off as much as fifty per cent, depreciation ? ” The question was objected to by appellant, the objection overruled, and the witness then answered that: “if goods are cheaper in Canada than in the United States, the per cent, of depreciation ought not to be so much.”

The ruling of the court in allowing this question to be asked and answered is the seventh assignment of error.

There was no evidence, before the court that all of the goods were purchased in Canada, and the question in itself was not -a proper one, but the testimony could not have prejudiced the appellant. The question was hypothetical, and the answer could but serve merely to qualify the answer of the same witness to the hypothetical question put to him on his direct examination, respecting the per cent, of depreciation in the value of the goods in the case supposed.

As to the eighth assignment of error, respecting the refusal of the court to allow the defendant’s offer of certain so-called “expert” testimony, counsel for appellant argues in favor of the admissibility of the testimony offered, on the assumption that the purpose of such testimony being to show the market value of the goods at Buena Vista, its rejection was error. Since we have, in considering the former assignments, already passed upon the question of market value at Buena Vista, as affecting the measure of damages in this case, we need add nothing to what has already been said upon this point further than to observe that, in all cases like this, the measure of damages is a matter of law to be decided by the court. Sedgwick, Meas. Dam. 604. And we see no error in the ruling of the court upon this point, sufficient to warrant a reversal.

The objections of appellant embraced in the other assignments of error are sufficiently met by what we have said in passing upon the foregoing, and need not be further noticed.

Perceiving no material error in the record, the judgment will be affirmed.

Affirmed.