Smith v. Findley

34 Kan. 316 | Kan. | 1885

The opinion of the court was delivered by

Horton, C. J.:

These facts appear to be undisputed: On April 7, 1880, David V. Findley chartered a box car from the Louisville, New Albany & Chicago Railway Company, in which to ship two horses and his household goods from Bloomington, Indiana, to Minneapolis, in this state. He loaded the car at Bloomington with two horses, some household goods, and the potatoes, bacon, vinegar and salt in controversy. He paid the charges to Greencastle, Indiana, amounting to $23.50, and took a receipt which set forth that the car contained household goods and stock. On April 8, 1880, he signed a contract with the Indianapolis & St. Louis Railway Company at Greencastle, Indiana, for the shipment of “ one car H. H. goods and stock ” from Green-castle to East St. Louis, Illinois. On April 9,1880, he signed a contract with the Wabash, St. Louis & Pacific Railway Company to forward over its road one car with “the following freight, to wit, H. H. gds. and stock, from the St. Louis union depot to Kansas City, at the rate of $40 per car.” On April 11, 1880, he entered into a written agreement with the Kansas Pacific Railway Company, (Union Pacific Railway Co.,) to transport over the road of the company “one car-load of H. H. goods and two horses from the state line station to Minneapolis station, at the rate of $35 per car-load, the same being a special rate lower than the regular rates” mentioned in the tariff annexed to the contract. He arrived with car at Minneapolis on April 12, 1880, after dark. He removed the horses and household goods on April 13th; he paid the agent of the Union Pacific Railway Co. at Minneapolis $100 for freight, being $65 back charges on the car, and $35 for transportation over the Union Pacific Railway from Kansas City, or the state line, to Minneapolis, and being all that was then demanded. Soon after the agent had collected the $100 freight, he looked into the car transported by the company and discovered potatoes, bacon, vinegar and salt, which he claimed were not household goods, and therefore immediately demanded of Eindley $11.88 additional as freight upon the potatoes, bacon, etc. Findley refused to pay this extra or additional freight; Smith refused to deliver the goods, and thereupon Findley replevied the same.

The rate on household goods from Kansas City to Minneapolis on the U. P. Railway was 17 cents per 100, and on the other goods, for which the additional freight was demanded, the rate was 45 cents per 100. It is claimed by the railway company that potatoes, bacon, vinegar and salt are not household goods, and that there was no right on the part of Findley to put them into the car as such, and that having put them into the car without the knowledge of the railway company, he should pay full tariff rates on the same. In support of this claim, it is stated by counsel that—

“To facilitate the settlement of the country, the company has a rate for the transportation of household goods and farming utensils at about one-third of its regular rate; that the motive for giving this reduced rate is to enable persons of limited means to locate themselves in the unsettled part of the state at a moderate expense, with their household effects; and that a very low rate was made by the railway company over its road to influence and promote such settlement.”

The questions are: First, whether the potatoes, bacon, vinegar and salt are to be considered household goods; and second, if not, whether the contract executed between Findley and the Union Pacific Eailway Co. for the carrying of his household goods and two horses in the car of the Indianapolis & St. Louis Ely. Co. over its road from Kansas City or the state line to Minneapolis, covered the potatoes, bacpn, etc. Bouvier defines household goods to mean “everything of a permanent nature, (that is, articles of household which are not consumed in their enjoyment,) that are used or purchased, or otherwise acquired by a person for his house, but not goods in the way of his trade. Plate will pass by this term, but not articles of consumption found in a house, as malt, hops, or victuals.”. (Vol. 1, p. 758.) Abbott gives a like definition. (Law Diet., vol. 1, p.575.) Worcester calls the furniture of a house and utensils convenient for a family, “household stuff.” The evidence tended to show, and the jury found as a fact, that a part of the bacon, salt and vinegar transported in the car Findley sold, or endeavored to sell, after his arrival in Minneapolis.

Joai^wbat are, what not.

2. contract for the carriage of householdgoods; ad - Under all the facts of the case, we think that the phrase “household goods” does not include the potatoes, bacon, etc., replevied. We also think that these articles were not covered by the written contract between Find-J ley and the Union Pacific Rly. Co. The latter company received the car containing the household goods, horses, potatoes, bacon, etc., from a connecting line, and was not bound to examine the contents of the car before transporting it, to ascertain whether it contained other property than that described in the contract. It had the right to rely upon the contract with Findley as to what the car contained. The railway company, within reasonable bounds, has the right to make a rate for the transportation of horses, household goods, and furniture, and also to make a different rate for potatoes, bacon, etc. If other property of Findley was carried in the car from the state line to Minneapolis than the household goods and horses mentioned in the contract, and for the carriage of which the rate of the railway company was higher than its rate for household goods and horses, then clearly the company was entitled to be paid by Findley its rate for carrying such other property. The company also had a lien for its charges for transportation upon such property, and was entitled to retain the same until the charges were paid.

The findings of the jury to question 2 and to a part of question 3 submitted, are not supported by the evidence, and these special findings being important, the verdict and findings ought to have been set aside and a new trial granted.

“Where a jury render a general verdict and make special findings by answering special questions submitted to them, and some of the special findings are not true, and some of the answers given to the special questions are so evasive and unsatisfactory as to lead to the belief that the party against whom the jury rendered their verdict did not have a fair and impartial trial, the verdict and findings should be set aside and a new trial granted.” (U. P. Rly. Co. v. Fray, 31 Kas. 739.)

The written contract of April 11, 1880, between Findley and the Kansas Pacific Rly. Co.— now the Union Pacific Rly. Co. — was the sole and only contract between the parties for the transportation of the household goods and horses described therein. Therefore the testimony of all verbal or written contracts prior to that one ought not only to have been withdrawn from the jury by the court, but, to have prevented misapprehension, it would have been better if the court, having admitted such evidence, had instructed the jury, as prayed for by the railway company, that the various contracts made by Findley with other railroad companies were not binding upon the Union Pacific Ely. Co. As there was no evidence showing, or tending to show, that the agents of the Union Pacific Eailway Company, at the state line or elsewhere, knew the contents of the car, other than as described in the written contract, the direction of the trial court that if Findley, with the knowledge or consent of the Union Pacific Ely. Co., put into the car other articles than his horses and household goods, he would be entitled to the contents of the car without paying additional freight, was misleading. Even if Findley ever had a contract for the through carriage of his freight from Bloomington, Indiana, to Minneapolis, Kansas, he waived all of the terms and conditions thereof by subsequently making special written contracts with each of the separate railway companies or distinct carriers between Bloomington and Minneapolis.

The judgment of the district court will be reversed, and the cause remanded for further proceedings.

All the Justices concurring.