28 A.2d 869 | Conn. | 1942
This case involves liability for the value of goods shipped by common carrier, taken from its possession by a third party. The suit was brought by the carrier against the converter. A demurrer was filed to the complaint but, in view of the subsequent trial on the merits in which the same legal issues were involved, the overruling of the demurrer did not harm the defendant. Mechanics Bank v. Woodward,
On October 26, 1939, the Enterprise and Century Undergarment Company, hereinafter referred to as Enterprise, delivered a large package containing goods of the value of $403.50 to the plaintiff for shipment to the Koblegard Company in West Virginia. Thereafter this package was taken from the possession of the plaintiff by the defendant owing to a mistake of the defendant's agent. The package was lost. Enterprise has credited the account of Koblegard with $403.50 but has been reimbursed by no one. Enterprise has brought suit against the plaintiff and the trustees of the New York, New Haven and Hartford Railroad Company to recover damages for negligent loss of the package, in which suit this plaintiff has *388 filed a general denial. That action has not been heard or decided although it was returned to court before the suit at bar. On these facts the trial court concluded that the plaintiff had possession of the goods as bailee, that the defendant converted them and that judgment should be rendered for the plaintiff for their full value, with interest.
The defendant claims that the pendency of the prior suit rendered the trial of this one premature and the recovery of full damages illegal. Its brief describes the following statement of the applicable principles of law as axiomatic: "For an injury to, or for conversion of, bailed property, either bailor or bailee may bring an action. A `recovery' by one will bar an action by the other. Where the action is brought by a bailee for his special interest in the converted property and the interests of the bailor, the bailee retains the value representing his special interest and holds the balance in trust for the bailor. But, if the bailee sues simply for his special interest, the bailor may then recover the damages representing the value of his property." This concise statement appears to be a correct summary of the rules set forth in White v. Webb,
The courts are not in agreement as to the true basis of the right of the bailee to recover. 6 Am.Jur. 387, 303; Holmes, Common Law, 167; 2 Beven, Negligence (4th Ed.), p. 907 et seq. Some rely on consent; Terry v. Pennsylvania R. Co., supra; some on the right of possession; Brewster v. Warner,
Numerous rulings on evidence were assigned as error. The only one pursued on the brief concerned testimony as to the fair market value of the goods *390
shipped, elicited by the plaintiff on cross-examination of its secretary. The ground of objection stated in the brief is that, the witness having been called by the defendant for a limited purpose, the cross, examination went outside of the field of the direct and the plaintiff should have made its secretary its own witness for that purpose, citing Roberts v. New York, N. H. H.R. Co.,
There is no error.
In this opinion the other judges concurred.