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Texas & N. O. R. Co. v. Bigham

Fennett during a heavy rain, and was wet and damp when received by it from the Gulf & Interstate Railway Company, and was then damaged, which was caused by the dampness resulting from being loaded during the rain. The cause was tried without a jury, and the trial resulted in a judgment against appellant in favor of appellees for $300, from which it has appealed.

It is urged under the first assignment of error that as the petition alleged the goods were shipped in good condition, and became damaged by reason of appellant's neglect during transportation, appellees cannot recover under evidence showing that they were shipped in a bad and precarious condition, necessitating unusual promptness in delivery in order to prevent damage, because (1) the case made would be for special damage, not ordinarily the result of delay, and (2) would be at variance with the cause pleaded.

Under the allegations in appellees' petition, as is seen from the statement of the case, appellant undertook and promised to carry the rice over its road, and promptly deliver it to the Beaumont Rice Mills, and after receiving it in good condition it wrongfully and negligently withheld the shipment from the mills until the 2d day of December, 1900, which was 30 days after it was received and should have been delivered. As to the condition of the rice when delivered, the testimony is conflicting. According to that of appellees, it was kept dry, and not taken from their wagons, where it was covered with good tarpaulins, amply protected from the rain, and not loaded on the car of the Gulf & Interstate Railway until the rain was over, and that it was dry and in good condition when unloaded from the wagons and loaded upon the railroad car. On the contrary, appellant's witnesses testified that the rice was taken from the wagons and placed upon the car by appellees' servants during a heavy rain, to which it was exposed during such removal; that the car in which it was loaded was dry and secure against rain.

If the weight of testimony were to be determined by the number of witnesses, it would preponderate in favor of appellant. But in weighing testimony that of a greater number of witnesses does not necessarily outweigh that of a lesser. The test is truth, not numbers. It is for the jury, or, in its absence, the trial judge, to sift the testimony, and from it find the truth and determine the issuable facts. When this has been done by the trial court, and its findings crystallized into a judgment, it will not be disturbed on appeal, if there is evidence reasonably sufficient to sustain it. Facts upon which a judgment rests are determined by the court which renders. the judgment upon them, not by the one which reviews it upon appeal. It only looks to see whether there is any testimony from which the facts entering into the judgment could be found. If it sees such testimony as reasonably tends to support the findings of the lower court, its duty as to the facts

Texas & N. O. R. Co. v. Bigham

is at an end. Such testimony we have found in the record before us. The trial court has weighed it for the purpose of determining the question "wet or dry," and has said the rice was dry and in good condition when appellant received it, and became wet afterwards, and was in a damaged condition when delivered to the Beaumont Rice Mills. There was at least evidence from which the trial court could have made these findings, and, if necessary to sustain its judgment, it should be presumed in its favor that it did so find.

But there is another combination of facts that might have been found by the court, warranted by the evidence, which, in our opinion, would sustain the judgment. It may have found (1) that the rice was exposed to the rain and became wet during the time it was transferred from the wagons to the car; (2) that, if the appellant had promptly transported and delivered it, it would not have become damaged from the dampness; (3) that the appellant negligently failed to transport and deliver it within a reasonable time; and (4) that in consequence of such negligence the rice was in a damaged condition when delivered. But appellant says that such findings would make a case of special damages, not ordinarily the result of delay, and would be at variance with cause pleaded.

Where goods are delivered in a depreciated condition attributable to causes for which the carrier is responsible, the measure of damages is, ordinarily, the difference, if the cost of transportation, as in this case, has been paid, between the value as actually delivered and as they should have been delivered, with interest. These damages are such as the law implied or presumes to have accrued from the wrong complained of, and are such as might have been reasonably contemplated by the parties to flow from the negligent failure of the appellant to perform its contract to deliver the goods within a reasonable time. Such are denominated general damages, and need not be specially pleaded in order to prove them. But, whether considered general or special, it can make no difference, so far as this case is concerned; for the difference between the value of the goods as actually delivered and as they should have been delivered was pleaded, and such difference in value prayed for as damages.

Therefore, in our opinion, it can make no difference upon what theory the court found,-whether the rice was wet when delivered to appellant or became so afterwards, -its judgment finds support in the evidence; for the negligent failure of appellant to deliver to the consignee is the proximate cause of the injury to the goods and their consequent depreciation in value.

What we have said disposes of all the assignments of error, and, we think, demonstrates that none is well taken. Therefore the judgment is affirmed.

COLLINS et al. v. ILLINOIS CENT. R. Co.

(Court of Appeals of St. Louis, Mo., April 15, 1902.)

[67 S. W. Rep. 943.]

Carriers of Goods-Conversion-Evidence-Sufficiency.*

In an action by a consignor against a railroad company for conversion by failing to deliver a shipment of merchandise to the consignee, the evidence showed that the consignor's agent sold the goods to the consignee; that the goods were delivered to defendant for shipment under a bill of lading binding defendant to transport and deliver them to the consignee; that the consignee paid $10 on account, and refused to pay the balance, for which a suit was pending; that the consignee had not complained to the consignor about the company's delivery of the goods to a third person: held, that the evidence failed to establish

a conversion.

Appeal from circuit court, Cape Girardeau county; Henry C. Riley, Judge.

Action by Wm. M. Collins and others against the Illinois Central Railroad Company. From a judgment for defendants, plaintiffs appeal. Affirmed.

F. E. Burrough and R. H. Whitelaw, for appellants.
R. Burett Oliver, for respondent.

GOODE, J. Plaintiffs in this case are a firm doing business in Louisville, Ky., and the petition states that on two dates in August, 1899, they delivered to the defendant company at that place certain cases of whiskey and other spirituous liquors which they had theretofore sold to P. R. Van Frank, who was engaged in business in Cape Girardeau, Mo., to be transported to the point last named, and there delivered to Van Frank; that the defendant company did transport said property to Cape Girardeau, but, instead of delivering the same to Van Frank, converted it to its own use, to the damage of plaintiffs in the sum of $511, together with interest from the date of the conversion. The answer was a general denial.

This case must fail because the record is absolutely barren of testimony or evidence of any kind tending to prove the liquors were not delivered to Van Frank in accordance with the terms of the bills of lading. The only evidence introduced at the trial was the deposition of Graeme McGowan, one of the plaintiffs, who testified to the sales by their commercial traveler, Sugg, of the goods in question to Van Frank, the delivery of them to the Illinois Central Railway Company for shipment, the payment of $10 on account by Van Frank to the traveling salesman, and his refusal to pay the balance. To the deposition are attached the order written by Sugg and sent in to his house, and also the railway company's bills of lading, which are in the usual form, and bound the company to transport the goods in question to the consignee, *See notes, 55 Am. & Eng. R. Cas. 674, and 35 Am. & Eng. R. Cas. 656. Also, see 2 Rap. & Mack's Dig. 75, 125.

State v. Bland

P. R. Van Frank, at Cape Girardeau. The only gleam of evidence which throws any light on the conversion of the property by the defendant, or its failure to deliver it to the consignee, is the following question and answer contained in said deposition: "Q. Did P. R. Van Frank ever make complaint to you about the delivery of the whiskey for which you have sued the Illinois Central Railway Company,-that it was delivered to Dunlop? A. Not to us." It further appears by the testimony of McGowan that the plaintiffs have a suit pending against Van Frank now for the purchase price of the very merchandise alleged to have been converted by the railroad company as the basis of the present action. At the conclusion of the testimony the circuit court gave a peremptory instruction to the jury to return a verdict in favor of the defendant, which was done, and an appeal taken to this court.

The appellants' statement says that when the goods arrived at Cape Girardeau the defendant delivered them to another party, who was wholly irresponsible, without notifying Van Frank. If that were proven, it would make a case of conversion; but there is not a syllable of proof that it was done, and, for aught the record discloses, the goods were delivered to the proper consignee. At least, that is the legal presumption in the absence of evidence to the contrary. A party cannot make out a case of conversion by showing that he turned over property to a bailee for a certain purpose. He must go further, and show the purpose was not carried out. The court very properly nonsuited the plaintiffs on the testimony adduced, and the judgment is affirmed.

All concur.

STATE ex rel. WABASH R. Co. v. BLAND et al.

(Supreme Court of Missouri, March 19, 1902.)
[67 S. W. Rep. 580.]

Certiorari-Federal Question-Carrier-Payment of Duties-Subrogation to Lien.

Goods shipped in bond from Japan to St. Louis, with freight paid to destination, were, through fault of a railroad company, sent first to St. Paul, where the goods were opened and assessed, and duties paid by the connecting railroad. When the goods reached St. Louis the consignee refused to pay such sum to the railroad company until he had inspected the goods, the box showing that they had been opened,—and, on the company refusing such inspection, replevied the goods, and recovered judgment in the trial court, which was affirmed by the St. Louis court of appeals. The defendant then applied for certiorari, claiming that under Rev. St. U. S. §§ 3100, 3102, and 1 Supp. Rev. St. U. S. 1891, pp. 294, 540, regulating the importation of goods in bond, and providing ports to which importation may be so made, it was entitled to subrogation to the lien of the government for the duties so paid, and that such court of appeals had no jurisdiction over such question: held, that such statutes give no such right, and that no federal question, or other question not within the jurisdiction of the court of appeals, was raised in the replevin action, and hence the case was not reviewable by the supreme court by certiorari.

State v. Bland

In banc. Proceeding by certiorari by the state, on the relation of the Wabash Railroad Company, against C. C. Bland and others, to review the decision of the St. Louis court of appeals on the action of Charles E. Pearce against the relator. Writ of certiorari quashed.

This is an original proceeding, by certiorari, whereby the cause of Charles E. Pearce against the Wabash Railroad Company was removed from the St. Louis court of appeals to this court after final judgment in that court in favor of the plaintiff. The petition for the writ of certiorari was based upon the allegation that the St. Louis court of appeals had exceeded its jurisdiction, or was without jurisdiction because "the validity of a treaty or statute of, or authority exercised under the United States, is drawn in question" in the case of Pearce against the railroad, aforesaid, and that the defendant in that case had invoked and been denied the protection of such federal statute or authority. And it was upon this showing and claim that the writ of certiorari was issued. The record in the case of Pearce against the relator, certified to this court under said writ, presents this state of facts: Pearce shipped four boxes of curios, of the value of $1,000, from Yokohama, Japan, to Wilfred Schade & Co., at St. Louis, in bond, by the Canadian Pacific Railway Company, prepaying the freight. The port of entry specified in the clearance certificate of the United States deputy consul general was St. Louis, where the duties were to be paid. The goods were carried by said railroad company, on the steamer Empress of China, from Yokohama to Vancouver, British Columbia. There the said railroad placed them in a properly bonded car on its road, and consigned these goods, with others, to: "F. Jones, St. Paul. For Wilfred Schade & Co., St. Louis." That railroad transported said goods over its own road and over its connecting road, the Minneapolis, St. Paul & Sault Ste. Marie Railway, to St. Paul. At St. Paul the United States custom officers opened the goods, assessed the import duties at $264.31, and repacked the goods. The Minneapolis, St. Paul & Sault Ste. Marie Railway paid said duties, and then turned over the goods, out of bond, to the Chicago, Milwaukee & St. Paul Railway Company, for transportation to St. Louis, and collected from that railway the duties it had paid. The Chicago, Milwaukee & St. Paul Railway Company transported the goods to Given, Iowa, and there delivered them to the Wabash Railroad Company, to be by it transported to St. Louis. That company transported them to St. Louis. Schade & Co. had assigned the bill of lading to the real owner, Pearce; and when the goods reached St. Louis the Wabash Company refused to deliver the goods to Pearce unless he would first pay the $264.31 duties, which the Wabash then thought were simply advanced charges, but which it ascertained, before it paid it, was the duty on the goods, and $1.24 freight. Pearce noticed that the boxes had been opened,

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