55 Ind. App. 252 | Ind. Ct. App. | 1913
Lead Opinion
This action was brought by appellee against appellant and the Home Stove Company to recover the value of a carload of pig iron. The complaint was in two paragraphs, the first alleging that the iron was sold to defendants at their special instance and request, and the second declaring on a special contract for the purchase of the iron. Trial
The jury found in answer to interrogatories that the car was placed by appellant on the sidetrack of the Plome Stove Company on October 18, 1907, north of the gate, that no notice was given to any officer or agent of the Plome Stove Company after placing it on the siding, that the ear was not unloaded north of said gate, and that it was not on October 19, 20 or 21 moved to the south of said gate, and that the car was never accepted by any officer or agent of the Plome Stove Company.
What became of the iron seems to have been a mystery to plaintiff, to both defendants, to their counsel, and to the witnesses, and it is a mystery also to the writer of this opinion. But counsel for appellee suggest that the jury adopted as the most reasonable solution of the difficulty, the
However, our view of the evidence is not the same as that of appellee’s counsel. The evidence, as detailed above, is amply sufficient for the jury to find that the iron was never delivered to the Home Stove Company. But we do not think it sufficient to show that appellant converted the iron. It appears that the iron was delivered to appellant, and that appellant never delivered it to the Home Stove Company. Such evidence might make out a case of failure to deliver as a carrier, but there is no direct evidence of any positive wrongful act on the part of appellant, inconsistent with plaintiff’s ownership, which would constitute a conversion. The signing of the Home Stove Company’s initials to the receipt by appellant’s conductor alone would not constitute such an act. The most, perhaps, that can be inferred from the evidence is that the iron was lost, and a carrier is not liable for a conversion where goods are merely lost. We do not think that the jury was justified in finding from the evidence that appellant converted the carload of iron, and therefore the court erred in overruling the motion of appellant Vandalia Railroad Company for a new trial, and for that error the judgment must be reversed as to appellant Vandalia Railroad Company.
The judgment is affirmed as to the defendant Home Stove Company, and reversed as to appellant Vandalia Railroad Company.
Dissenting Opinion
Dissenting Opinion.
“The one question of importance presented by this appeal” and determined by the prevailing opinion, as stated therein is, “Did the evidence justify the jury in finding that appellant converted the iron in question ? ’ ’ The judgment is reversed on the theory that the question should be answered in the negative. With this conclusion we cannot agree. It is well settled by the decisions of the Supreme Court and Appellate Court of this State that if there be any evidence upon this question which can be said to have, warranted the jury in finding or inferring that there was such conversion, its verdict will not be disturbed by this court. It is also well settled that in determining such question, we must look .to that evidence alone which is most favorable to appellee.
In dissenting from the prevailing opinion, we feel that we should indicate a part, at least, of the evidence, upon which such dissent is based. By a stipulation of the parties, it is shown that the Home Stove Company’s factory and yards are situate adjacent to Kentucky Avenue in the city of Indianapolis and are connected by a stub switch with the Indian
The following further facts are either conceded or- not seriously disputed. The consignee’s plant not being on the line of the initial carrier, the ear, loaded with the iron in question, on its arrival in Indianapolis, was delivered to and accepted by appellant on October 18, 1907, for delivery to the consignee. The point of the car’s receipt by the ap- • pellant from the connecting line was at or near a place or switch yard known as the Caven Yard, which was about two miles from the stove company’s yards. The stub switch which led from the appellant’s track to the Home. Stove Company’s plant and thence into the latter’s yard had a gate across it where it led into the yard. It was the custom of the stove company, well known to, and for several years observed by, the railroad company to receive and unload pig iron only on the inside or south of this gate. This.gate was kept locked. It was the practice for the railroad com
Delos A. Alig, who went to appellant’s offices at the Union Depot at Indianapolis to get some trace of the missing property testified in substance as follows: “* * * I met a clerk there who said he had charge of the records. We went over the records for car Erie No. 50361. I made a memorandum of my investigation. I went with the clerk to make the investigation, and he told me he had looked for the record of the ear leaving the switch, but was not able to find it. I went upstairs, where these records are kept, to look for it. We did not find any slip showing car No. 50361, nor the slip now marked ‘Exhibit No. 8.’ * * # The * * " young man said he had made several searches for the record showing the car being taken off the switch but had been unable to find it. My recollection is
Otto P. Alig, the superintendent of the Home Stove Company, testified in part as follows: “I was the superintendent at that time. There are five doors leading out on the side of the building to the track. I directed the setting of cars on that switch. On the 18th, 19th and 21st of October, 1907, I was along that switch about six to a dozen times a day. On neither of those days did I give any order or direction to any one concerning the setting of this car known as Erie No. 50361. * * * On neither of these days did I see any carload of iron from the Upson Nut Company, being No. 1 Upson iron, either south or north of the gate on the switch. On neither of those days 'did I see any iron un
Testimony of W. J. Power. “I am employed at the present time by the Home Stove Company. I have been employed there five and one-half years. During the month of October, 1907, I was there as time keeper and keeper of ear records. * * * I do not remember anything about this car Erie 50361, on the 18th, 19th or 21st day of October. I made true and correct entries of each car on the switch of the Home Stove Company in my car record. I do not remember that on the 18th, 19th or 21st day of October, 1907, Erie car 50361, loaded with Upson No. 1 pig iron, came onto our switch. I examined this switch for this car on these days. * * * On Exhibit No. 6 the ‘Inx’ opposite 50361, Erie, pig iron, is not in my handwriting. I do not know in whose handwriting it is. * * * I made an examination of the switch every morning for cars, * * * about 8:30 * * * inside and outside the gate * * *. When a car of pig iron is put on the outside the gate, for the reason that there are coal cars inside the gate, the engine is called by Mr. Alig to do the switching to get the pig iron inside and unload it. * * * I OK’d the cars on these slips on account of the car service, because of demurrage. When the cars were brought in and not set they were not to be charged demurrage. * * * The Vandalia Railroad Company is the only one that has ever switched or set cars on our switch. I did not see Mr. Corey out there on our switch on the 19th. I did not make a remark to him that this ear 50361 was inaccessible.” Exhibit No. 6 referred to by this witness is an exhibit identified by appellant’s witness Corey as a slip or record made by him of cars on Home Stove Company’s switch,
George Alig, Jr., testified in part as follows: “* * I received no information concerning that ear other than from Mr. Cash and Mr. Graham, the railroad company’s employes. . I asked them for records, and got none. I made that investigation with Mr. Power. I saw the slips marked Exhibits Nos. 6 and 7, and also the cards marked Exhibits Nos. 4 and 8, there in the Vandalia freight office. On none of these sheets or cards did I see any information concerning the car Erie 50361. They did not show me anything to the effect that the Vandalia Company received the ear at Caven Yard, nor that the ear service man. had found the car on the switch one day and the following day removed. They did not show me a slip of the freight conductor to the effect that on a certain day he had hauled the car off the switch empty, or gone out empty with the freight train somewhere else. * * * ”
The letters between appellant and appellee and between appellee and the Home Stove Company, introduced in evidence, show that appellant, before the trial, was insisting that it had delivered the iron in question to the consignee. On one occasion, the appellant presented the consignee with its unauthorized receipt for the car, saying “Here is your receipt for this ear”.
It is conceded in the prevailing opinion and supported by decision of courts of other jurisdictions there cited, that “a misdelivery by a carrier may be a conversion”. (Our italics.) Some of these decisions indicate that there may be a misdelivery as to place as well as to person. In the case of Bowlin v. Nye (1852), 64 Mass. 416, the court said: “A misdelivery of the goods by the defendant would have been a conversion of them, and would therefore have ren
The facts in this case show that, at the express request of the stove company, appellant had long been in the habit of delivering on its private switch south of, and inside its gate, cars consigned to it, loaded with pig iron, as was the one in question, and there getting the receipt Of such company from one of its agents, usually the man in whose office the key to such gate was kept. On this occasion, the custom was violated and the ear in question delivered north of and outside of such gate. There was no notice given the consignee of such delivery. The usual and customary receipt, required by appellant of its agent upon whom it imposed the duty of making such delivery, was not obtained from the consignee, but in lieu thereof, such agent, without the authority of the consignee, signed its initials to such receipt and this receipt, which was the only written evidence of delivery to the consignee ever required by appellant in such cases, was reported and turned in to appellant according to such usual custom.
Appellant now contends, and the theory of the prevailing opinion seems to be, that these facts merely show a failure to
This language from the appellant’s agent, who last had charge of the ear,-and up on whom was imposed the duty of delivering, would seem to be sufficient to warrant at least, an inference by the jury that such agent regarded and treated the car as delivered when he so placed it on th4e consignee’s private switch, and signed the receipt of the consignee therefor. Did appellant, the conductor’s principal, receive his receipt for delivery of the car and treat it as evidence of delivery of such car and contents, and after-wards claim and rely on such delivery? If not, why, in all of its correspondence and communications with shipper and consignee before suit, did it claim that it had delivered the property in question to the consignee and why did it present such consignee with a receipt saying, “Here is your receipt for this car”. It seems to us that such evidence ought to be sufficient to warrant an inference that appellant thought and acted as though it had made some kind of a delivery. If there was some kind of a delivery, what kind was it? Was it a delivery at the proper place to the proper consignee? The consignee says it did not get the iron and we do not understand that it is now contended that its receipt therefor, admittedly signed without its authority, was sufficient to force the jury to conclude that it did. To us the conclusion is irresistible that the jury had evidence before it, which warranted an inference of misdelivery of the iron in question. Under this evidence, what element of misdelivery is lacking either as to person or as to place? What more could have been, or would have been, required to constitute a misdelivery? That the delivery in question was not at the usual or customary place of. delivery is not disputed. The placing of the car on the switch outside the consignee’s gate, with intent to deliver it, in violation of the established custom and understanding between appellant and the consignee, was a wrong delivery or misdelivery
In the case of Baltimore, etc., R. Co. v. O’Donnell, supra, 497, that court said: “Unless'the justification was estab
The act of the carrier in failing to deliver without lawful excuse may constitute a conversion, and the consignee after waiting a reasonable time and after demand, may bring his action therefor. Baltimore, etc., R. Co. v. O’Donnell, supra; Clement v. New York, etc., R. Co., supra; Hamilton v. Chicago, etc., R. Co., supra; 6 Cyc. 474. This court in the case of Cleveland, etc., R. Co. v. Wright (1900), 25 Ind. App. 525, 527, 58 N. E. 559, held “that evidence of a demand
The evidence is undisputed that the appellant had possession of the property for delivery to the consignee on October 18, 1907. This possession is presumed to continue until the contrary is shown. Adams v. Slate (1882), 87 Ind. 573, 575; Abbott v. Union Mut. Life Ins. Co. (1890), 127 Ind. 70, 75, 26 N. E. 153; Rush v. McGee (1871), 36 Ind. 69.
This court cannot, under the evidence in the record, say that the jury did not have the right to infer that the appellant still had possession of the property when demand was made on it for the same. The only affirmative evidence upon this question is that relied on by appellant as tending to show a delivery to the consignee, and in determining whether the appellant did still have possession of the property when such demand was made upon it for the same, the jury had a right to take into account the evidence introduced before it, which showed or tended to show what became of the property after it went into appellant ?s possession. In determining whether the decision reached by the jury on this question had any evidence for its support, we should remember that there was some evidence showing or tending to show the following facts: The car in which this iron was loaded was an open Gondola ear. There were fifty tons of iron made
Note.—Reported in 101 N. E. 114. See, also, under (1) 38 Cyc. 2007; (2) 6 Cyc. 472, 513; (3) 38 Cyc. 2087; (4) 3 Cyc. 388; (5) 35 Cyc. 164, 262, 530.