110 Kan. 288 | Kan. | 1922
The opinion of the court was delivered by
The action was one to recover the value of grain lost in course of transportation. The plaintiff recovered, and the defendants appeal.
When the cause of action arose, the railroad of the defendant, the Chicago, Rock Island and Pacific Railway Company, was under control of the defendant, the director-general of railroads. For convenience, the action will be treated as one against the Rock Island Company, which will be spoken of as the defendant. The plaintiff is a grain dealer, and has an elevator in Hutchinson, adjacent to one of the Atchison, Topeka & Santa Fe Railway Company’s tracks. The Consolidated Flour Mills Company is a buyer of grain, having an office in Hutchinson, and a mill in Caldwell operated under the name, The Border Queen Milling Company. The defendant has a line of railroad between Hutchinson and Caldwell.
The plaintiff sold to the Consolidated Company a car of wheat, to be shipped to the Border Queen Company and settled for according to destination weight. Pursuant to contract, the plaintiff
The defendant transported the Rock Island car to its destination. When the car was unloaded at Caldwell, the wheat it contained •weighed but 62,420 pounds, a shortage of 19,180 pounds. The defendant accepted this weight as the basis for computing freight charges, which were paid accordingly. What became of 319 bushels and 40 pounds of wheat, worth at the time $2.17 per bushel? The defendant produced evidence, which need not be recited in detail, showing it was impossible for the wheat to escape between the elevator at Hutchinson and the mill at Caldwell, and the defendant concludes that not more than 62,420 pounds of wheat were placed in the Rock Island car. As stated above, weight of the wheat placed in the car was proved by the weighmaster who loaded the car. Whom was the trial court to believe?
The plaintiff directs attention to a bit of evidence which satisfactorily solves the question of fact. The defendant made the following entry on its freight bill, which was introduced in evidence:
Hutchinson Wts.
122000
40500
81500
BQWts. 62420
At Caldwell the wheat was weighed in hopper scales, and weights were certified as follows:
Hopper drafts.
19240
18880
18890
5410
Total 62420
The shortage in the shipment, 19,180 pounds, jilst about equals one average hopper draft, and there was room for inference that one hopper draft did not get into the certification of weights. Every one connected with opening and unloading the car and weighing the wheat at Caldwell, testified. The testimony was positive, and without conflict, that when the car was opened the grain was far below the wheat line at all points, and was high in the center and low at the ends, indicating original light loading; and the defendant now stands on the proposition that there were not substantially 81,600 pounds of wheat in the car when it was sealed at Hutchinson. The freight bill, harmonizing as it did with 'the state weighmaster’s weights, was a virtual admission the car was loaded as the plaintiff contends and, if the car contained but 62,400 pounds of wheat when the seals were broken, the defendant must account for the shortage.
The defendant complains of the reception and consideration of evidence. The Consolidated Company sued the plaintiff for the difference between the sum advanced on the bill of lading and the price of the quantity of wheat delivered, and recovered judgment. At the trial of the present action, the plaintiff, over objection, read in evidence testimony given in the former suit by witnesses Vance,
“The court further finds that the evidence offered at the trial of this cause, to the effect that the consignee of the shipment of grain involved in this suit had sued and recovered from the plaintiff, should have been admitted as a part of the plaintiff’s evidence in this cause; and that, inasmuch as said judgment in favor of said consignee and against the plaintiff in this cause was obtained in this court, the said evidence should be treated as introduced as a part of the evidence of the plaintiff.”
It will be observed the evidence treated as introduced did not include evidence justifying the former judgment, but merely included evidence establishing the fact that the former judgment was rendered. The defendant complains that the trial court must have treated the fact that judgment was rendered against the plaintiff as some proof the defendant was responsible for loss of the wheat. The director-general pleaded that the plaintiff received full value of*all the wheat from the Consolidated Company, which was substantially true. In order to remove this seeming bar to recovery, the plaintiff offered proof of the former judgment, and the evidence should have been admitted. The judgment was matter of record in the same court, was conclusive, and it was not irregular for the court, in final consideration of the case, to treat it as introduced. In any event, this court cannot presume the district court committed so grave an error as to consider the judgment in deciding the main issue.
The defendant contends the plaintiff is not the real party in interest. The defendant does not dispute that a consignor may sue the -carrier with whom he contracted, for grain lost in transit, although the consignee may have taken up the bill of lading. But it is said the case of Bennett v. Railway Co., 106 Kan. 95, 186 Pac. 1005, and 107 Kan. 17, 190 Pac. 757, is controlling. In that case the shipment was made to the consignor’s order, and the suit was brought by a purchaser of the goods who acquired title after they had been damaged.
It is said judgment should not have been rendered against the Rock Island Company. Since the Rock Island Company had no
The judgment of the district court is modified by eliminating the Rock Island Company. As modified, the judgment is affirmed.
