213 P. 250 | Mont. | 1923
delivered the opinion of the court.
On March 25, 1919, E. J. Grover, plaintiff herein, prepaid the charges and shipped a trunk from Minneapolis, Minn., to Aberdeen, S. D., by the American Railway Express Company then under federal control. The shipment was consigned to James A. Morrow, and this action was brought to recover the value of the property upon the theory that defendant had failed to make delivery. Upon the trial and at the conclusion of plaintiff’s testimony, the court sustained a motion for non-suit and rendered and had entered a judgment for defendant. From that judgment and from an order denying him a new trial, plaintiff appealed.
1. It is alleged that the defendant agreed to transport the property to Aberdeen and there deliver it to plaintiff or to the consignee. The breach is alleged as follows: “That the said Director-General of Railroads has refused and still refuses to deliver the said trunk and contents above described, to this plaintiff, and the said defendant retains the same for his own use and benefit as notice has been given to the said defendant and demand has been made for the delivery of the said trunk and contents, but the said defendant has refused and still refuses to either deliver this trunk and contents or to pay plaintiff for the same, to the damage of this plaintiff,” etc. Confessedly, this is not a model pleading, but, as against a general demurrer, the allegations are deemed to be true, and any fact necessarily to be implied from the facts pleaded is to be treated as averred directly. (Smallhorn v. Freeman, 61 Mont. 137, 201 Pac. 567.)
There is present the allegation that defendant retains the property for his own use and benefit, and the further allegation that—“Defendant has refused and still refuses to either deliver this trunk and contents or to pay plaintiff for the same.” If these allegations are true, it follows necessarily that the property was not delivered either to the plaintiff or to the consignee.
It is not the province of this court to reform a pleading by construction or to read into it essential averments whenever they are wanting, but it is our duty to construe the allegations of this complaint liberally with a view to substantial justice between the parties (sec. 9164, Rev. Codes 1921), and, so construed, we think the allegations of nondelivery are sufficient.
The plaintiff does not allege that he was the owner of the property after March 25, 1919, and for this reason the complaint does not state a cause of action in conversion, since
The complaint discloses that plaintiff and defendant entered - into a contract by the terms of which defendant agreed, for a valuable consideration, to transport the property in question to Aberdeen and there deliver it to plaintiff or the consignee; that defendant failed and refused to make delivery; and that in consequence thereof plaintiff suffered damages. As a complaint in an action for damages for breach of eon- tract it is sufficient. The fact that the shipment was consigned to James A. Morrow does not prevent plaintiff maintaining an action -for the loss of the goods. He is a party to the contract of shipment and may prosecute an action for a breach of it. (10'C. J. 348, 357.)
The contention that the complaint does not state a cause of action cannot be sustained.
2. The only other theory upon which the nonsuit could have been granted is that plaintiff failed to make out a prima facie case of nondelivery. There is not any question that the evidence is ample to sustain the allegation of nondelivery to plaintiff, but the trial court in passing upon the motion for nonsuit indicated that the carrier might have discharged its obligation by delivering the property to the consignee (presumably ,after June, 1919), and that the evidence was insufficient to show nondelivery to him. In each instance we think the court erred.
After explaining the circumstances under which he shipped the trunk consigned to Morrow, plaintiff testified that he went
To hold that this evidence does not present a prima, facie case of nondelivery to plaintiff or the consignee would be a serious reproach to the law. In our review of a judgment entered after nonsuit granted, the evidence will be construed in the light most favorable to the plaintiff and every fact will be deemed to be established which it tends to prove. (Lackman v. Simpson, 46 Mont. 518, 129 Pac. 325; Larson v, Marcy, 61 Mont. 1, 201 Pac. 685.)
To prove nondelivery is to prove a negative, and the rule is recognized generally that in a case of this character but slight evidence of nondelivery is sufficient to cast upon' the carrier the burden of accounting for the goods. (10 C. J. 372; 1 Greenleaf on Evidence, sec. 78; Vigus v. O’Bannon, 118 Ill. 334, 8 N. E. 778; Chicago, etc., Ry. Co. v. Provine, 61 Miss. 288. See, also, People v. Perry, 197 Mich. 47, 163 N. W. 478.)
The evidence dicloses that the trunk was in the possession of the carrier at Aberdeen on the morning of March 26 and that in June following the agents of the carrier were still searching for it and soliciting plaintiff to aid them to find it. Clearly the evidence is sufficient to show nondelivery up to that time. Was it necessary for plaintiff to prove nondelivery to the consignee after that date? We think not. The shipment was one in interstate commerce and controlled by the federal statute. Sections 8 and 9 of the Act of Congress approved August 29, 1916 (39 Stat. 538 [U. S. Comp. Stats, secs. 8604dd, 8604e]), enumerate the persons to whom the carrier may, in the first instance, make delivery, and those persons include the consignee named in a straight bill of lading. Section 10 (see. 8604ee), however, declares in effect that the carrier
As observed before, plaintiff testified that he was in posssession of the bill of lading; that in the presence of the consignee he had informed the agent of defendant that the property belonged to him, and had explained fully the reason the shipment was consigned to Morrow. It appears further that on the same day Morrow, the consignee, also explained to defendant the reason the shipment had been consigned to him, and notified the agent that the goods belonged to Grover, the plaintiff herein, and should be delivered to Grover. This evidence tends to prove, and for the purpose of these appeals does prove, that defendant had information, before delivery was made that plaintiff was the owner and entitled to possession of the property,- that the consignee disclaimed any interest in it and was not lawfully entitled to possession. It follows that the carrier could not acquit itself by a delivery to the consignee after it received that information, and hence plaintiff was not required to prove nondelivery to Morrow after that date.
The judgment and order are reversed, and the cause is remanded for a new trial.
Reversed and remanded.