173 N.W. 945 | N.D. | 1919
Concurrence Opinion
(concurring specially). This is a sequel to Knapp v. Minneapolis, St. P. & S. Ste. M. R. Co. 34 N. D. 466, 159 N. W. 81. As appears from the reported case, the plaintiff sought to recover damages for certain wheat which he asserted was lost by reason of the negligence of the defendant and its employees. As stated in the opinion in that case, the evidence indisputably established that the grain was lost while the shipments were under the control and in the
The case came on for trial before the court and a jury. The parties entered into a written stipulation whereby a transcript of the evidence introduced upon the trial of the case reported in 34 N. D. 466, was received in evidence. The plaintiff offered no further evidence what
The writer prepared the opinion for the court in Knapp v. Minneapolis, St. P. & S. Ste. M. R. Co. 34 N. D. 466, 159 N. W. 81. Some of the evidence adduced is referred to in that opinion. The question there was the sufficiency of the evidence to sustain the cause of action there alleged. The members of the court were of the opinion that the evidence did not establish such cause of action. They were also of the opinion that the right to recover under a special contract was not before the court, and that all evidence as to such special contract was variant from, and inadmissible under, the complaint. The sufficiency of the evidence to establish such contract was not before the court, and no opinion was expressed thereon. Of course it was assumed that if another action was maintainable and brought on such special contract,
The plaintiff testified that Cole, the agent of the defendant company, informed him of the elevators at the lake points. The plaintiff thereafter made a trip on one of the boats of the navigation company with Von Neida, the manager thereof. 34 N. D. 477, 478. The plaintiff testified that after he had made this trip, Cole called him up on the telephone.
He said: “He [Cole] wanted to know1 if I was — what I thought about the elevators on the lake, and I told him I was not very well impressed with them. I says I went on the trial trip with Von Neida, but while he assured me they would have no trouble in getting the stuff down there, still I did not feel very well pleased with the looks of their boats, but he assured me that everything would be lovely, and they would get the grain out.”
Q. “Who would?”
A. “Mr. Cole for the Soo Line.”
Q. “What did he say?”
A, “I told him I would not take charge of the houses there unless he would guarantee me to get the stuff out, and he said that they would do everything possible to get it out.”
The plaintiff further testified that Cole told him that the bills of lading would read from the lake points, but would be given at Kenmare.
The form of the shipping receipts used was set forth in 34 N. D. pp. 475, 476. The receipts were made upon a printed form of the defendant railway company, but the name of the “Dvs Lacs Lake Navigation Company” was written in and appeared on the face of each receipt. All the receipts issued to the plaintiff contained, among others, the following conditions:
“Section' 2. In issuing this bill of lading this company agrees to transport only over its own line, and except as otherwise provided by law acts only as agent with respect to the portion of the route beyond its own line. No carrier shall be liable for loss, damage, or injury not occurring on its own road or its portion of the through route, nor after
“Section 5. . . . Property destined to or taken from a station, wharf, or landing at which there is no regularly appointed agent shall be entirely at risk of owner after unloaded from cars or vessels or until loaded into cars or vessels, and when received from or delivered, on private or other sidings, wharves, or landings shall be at owner’s risk until the cars are attached to, and after they are detached from, trains.”
The evidence shows that in the latter part of October, 1910, the plaintiff caused a claim to be presented against the Des Lacs Lake Navigation Company for the loss of the identical wheat in question. It is true plaintiff claims that he did this at the suggestion of the attorney who represented the defendant and the navigation company; but such attorney contradicted plaintiff’s testimony on this point. It may also be mentioned that plaintiff caused certain affidavits to be prepared in his claim against the navigation company. In such affidavits the amount of wheat lost is fixed at 500 bushels, but in the complaint in this and the former suit against the defendant railway company the amount is fixed at 1,000 bushels.
It will be noted that the only positive promise on the part of Cole testified to by plaintiff is “that they would do everything possible to get it [the wheat] out.” Nowhere is there any express promise on the part of Cole that the defendant would be responsible for the shipments while they were under the custody and control of the navigation company. The recitals in the shipping receipts were to the contrary. It seems to me that the evidence does not establish an agreement on the part of the defendant to be responsible for the grain shipments while they were being transported by the navigation company. In any event the evidence upon that question is very slight. When the parties moved for directed verdicts they impliedly consented to a disposition of the case without the aid of a jury. The trial court granted the motion of the defendant. The motion might very properly have been granted upon the first ground thereof, viz., that the special contract had not been sufficiently proven. This being so, it is immaterial whether the court was right or wrong in holding that the former decision was a bar to
Lead Opinion
On October 17, 1916, this action was commenced in Ward county to recover from defendant $960 for the loss of 1,000 bushels of wheat in August, 1910. Aside from a general denial, the answer avers that the cause of action did not accrue within six years, and that in a former action, in the district court of Burke county, between the same parties for the same identical cause of action, after trial on the merits, it was by the court duly adjudged that the action be dismissed on its merits. In this case the court sustained the plea of a former adjudication and dismissed the action. The case was before this court, as shown by the reports, 34 N. D. 466-497, 159 N. W. 81. The first action was to recover from defendant for the loss of 1,000 bushels of wheat at 94 cents a bushel,, with interest from November 1, 1910. It is manifest that each action was brought for the same identical cause, by the same plaintiff against the same defendant, to recover for the loss of the same wheat'. In each case the parties and the cause of action are identical. In such a ease a party may not evade the force and effect of a former adjudication by varying the form of the complaint or by bringing actions in different counties.
It also appears that this action was not brought within six years from the date the cause of action accrued.
■ Judgment affirmed.
Dissenting Opinion
I dissent from the result arrived at in the majority opinion.