164 N.W. 143 | N.D. | 1917
Concurrence Opinion
(concurring). I concur in the opinion of Mr. Justice Christianson. My criticism is that he has given this small case too much consideration. When parties go to law over a dispute of 50 cents or $2.50, they both deserve to lose, and their case deserves no consideration.
Lead Opinion
The plaintiff brought this action in the district court of Grand Forks county against the Northern Pacific Railway Company to recover $379.25, the alleged value of a certain stock of goods which it is alleged the railway company converted.
The complaint alleges that on or about November 22, 1915, the plaintiff purchased a ticket of the defendant at its station in Forest River, entitling him to travel from Forest River to Drayton, and that at the same time and place he checked as baggage two parcels, which contained the goods involved in this case, and received from the defendant’s agent two baggage checks for such parcels. That thereafter on November 23, 1915, the plaintiff purchased a ticket from the defendant’s agent at Drayton, entitling him to travel from Drayton to Grafton, and that the defendant engaged as part of the same transaction to carry the two parcels heretofore mentioned as baggage from Drayton to Grafton. That defendant knew the contents of said parcels, and accepted the same with full knowledge of such contents, and with full knowledge of the fact that the goods so checked as baggage were to be
To this complaint defendant interposed an answer wherein it admits that the plaintiff purchased a ticket from its agent at Forest River, entitling him to transportation as a passenger over defendant’s railway from Forest River to Drayton; that defendant checked two parcels of baggage from Forest River to Drayton, and alleges that the defendant had the same in its possession at Drayton, North Dakota, ready and willing to turn the same over to plaintiff, but that plaintiff neglected to call for the same, and made no request as to the disposal of such parcels, until on November 25, 1915, when he notified defendant’s agent at Drayton by letter, and requested him to forward the parcels to Grafton, North Dakota. That at that time 50 cents storage charges had accrued for the storage of said goods. ’That the defendant has been at all times and still is ready and willing to turn over said baggage to the plaintiff upon the payment of said storage charges. The answer further alleges that the parcels received and checked by it were not entitled to be checked and forwarded as baggage, under the duly filed tariff schedules of the defendant, and that according to such tariff the defendant’s liability was limited to $100.
The case was tried to a jury upon the issues framed by these pleadings, and resulted in a verdict in favor of the plaintiff for $182.50. Judgment was entered pursuant to the verdict, and defendant appeals from
Appellant’s assignments of error on this appeal are predicated upon ■two grounds: (1) Insufficiency of the evidence to sustain the verdict; (2) errors in instructions given and refused.
Appellant specifies two particulars wherein the evidence is insufficient to justify the verdict. Appellant’s first specification of insufficiency is to the effect that the evidence shows that the plaintiff arrived at Drayton on the evening of November 22, 1915, and did not leave there until the morning of November 24, 1915. That consequently there was at ■that time due storage charges against the two parcels amounting to 50 cents. And that, in view of the conceded fact that plaintiff never tendered this or any other sum to the defendant in payment of such ■storage charges, defendant had a right to retain the possession of the goods, and would not be guilty of conversion.
While plaintiff’s testimony on this proposition is somewhat ambiguous, it was for the jury to construe the language used (14 Ene. Ev. 215), and we are agreed that the evidence, as a whole, fully justifies the conclusion reached by the jury and the trial judge; viz., that plaintiff arrived at Drayton in the evening of November 2 2d, and left on the train for Grafton on the morning of November 23d.
Apjmllant’s second specification of insufficiency is that “the evidence is insufficient to justify the verdict in that there is no proper proof of damages in the case, or proper proof of the value of the goods in question here at Grafton on the date of the claim of conversion.”
Plaintiff testified that he had been engaged in selling goods of the kind involved in this controversy for the last twenty years. That during the last fifteen or sixteen years he had personally bought the goods so sold, and that he personally purchased the goods involved in this controversy.
On direct examination the following questions were propounded to plaintiff, and the following answers given thereto by him:
Q. Tell us the value of these, — the wholesale value of these goods in November on -the days that I gave you awhile ago in November, 1915?
A. Well, between $315 and $390.
*609 Q. What did you say ?
A. About $375.
Q. $375?
A. Yes.
It is true that plaintiff also testified that this was the price he paid for them, hut this fact does not destroy his testimony as to value, but if anything tends to corroborate his testimony on this point. A list prepared hy plaintiff and under his direction, showing the contents of the two parcels and the prices paid by plaintiff for these goods in November, 1915, was offered and received in evidence without objection. In fact all the testimony of the plaintiff with respect to such value was received without objection.
As a general rule, “incompetent evidence which is introduced without objection becomes evidence in the particular case, and must be treated as any other competent evidence. . . . When evidence has been offered for a particular purpose, and no objection is made thereto, it must be treated as competent evidence for the purpose for which it is offered.” 9 Ene. Ev. Ill, 112. See also 19 Decen. Dig. Trial, I 105.
Plaintiff was the owner of the goods. And ordinarily an owner may testify to the value of his property. It also seems as though plaintiff had shown sufficient qualification to testify as an expert to the value of the property involved in this case. But even though the testimony was incompetent, the objection to its competency cannot be raised for the first time after the verdict by motion or specifications challenging' the sufficiency of the evidence.
Appellant’s next contention is that the court erred in denying its request to instruct the jury to the effect that plaintiff could in no event recover more than $100. This contention is based upon the schedules of passenger rates of defendant and the stipulation on the baggage checks limiting the value of baggage to be checked for free transportation upon a whole passenger ticket to $100. There is much force in appellant’s argument that, in view of the present statutes of this state (Comp. Laws 1913, §§ 4724, 4725, and 4727), which require railroads to print and keep for public inspection schedules showing the rates, fares, and charges for the transportation of passengers and
In an action like the one at bar, this court has appellate jurisdiction only, and reviews only the errors assigned upon the proceedings had in the trial court. N. D. Const. § 86; Erickson v. Wiper, 33 N. D. 193, 225, 157 N. W. 592. And the appellant has the burden of proving error, and must present a record" affirmatively showing error. Erickson v. Wiper, supra. Consequently, we must assume that the evidence upon all the other features of the case, except the two particulars heretofore enumerated, is sufficient to sustain the verdict under the issues as framed by the pleadings, and that the record is free from error, except those specified and argued on this appeal. In view of the verdict as well as the special findings returned by the jury, we must assume that the evidence- showed a wrongful and unlawful conversion by the defendant of property belonging to the plaintiff, of the value of $182.50. We are aware of no decision holding that a limitation of liability will avail a carrier under these circumstances. In George N. Pierce Co. v. Wells, F. & Co. 236 U. S. 278, 287, 59 L. ed. 576, 583, 35 Sup. St. Rep. 351, the United States Supreme Court refused to say whether a carrier, in addition to the liability stipulated, would also be liable for the value of what was left of property after a wreck. The trial court properly refused to instruct the jury that plaintiff’s recovery be limited to $100.
Defendant also assigns error upon an instruction to the jury to the effect that, if the defendant negligently failed to forward plaintiffs
This disposes of all the errors assigned on this appeal. It follows from what has been said that the judgment and the order appealed from must be affirmed. It is so ordered.