Missouri Pacific Railway Co. v. Peru-Van Zandt Implement Co. , 73 Kan. 295 ( 1906 )

The opinion of the court was delivered by

Graves, J.:

Many assignments of error have been presented, but they; are all substantially covered by these three: (1) It is insisted that thé plaintiff has no interest in the machinery in controversy, and, therefore, cannot maintain an action for its conversion; (2) that the proper measure of damages in case of a recovery is the difference between the market value of the machinery at the time and place of delivery and the market value thereof when it in fact arrived'at such place; (3) that damages'for loss of commission ,cannot be recovered, because a sale of the property was not within the contemplation of the parties when the shipment was made.

Concerning the first proposition, there is considerable confusion among the authorities as to whether the consignee^ or consignor is the proper party plaintiff in an action agai.nst_a. carrier, but the rule that an action for the conversion of goods must be brought by the owner or one having a beneficial interest in the property converted seems to be fairly well established. (Hutch. Carr., 2d ed., §§ 731-734; 6 Cyc. 510; Wood’s Browne, Carr. § 599.) The consignee is always presumed to possess the necessary ownership, until the contrary is shown. (Ray, Carr, of Freight, 1006; Griffith v. Ingledew, 6 S. & R. [Pa.] 429, 9 Am. Dec. 444; Smith v. Lewis, 3 B. Mon. [Ky.] 229; Arbuckle v. Thompson, 37 Pa. St. 170; The Pennsylvania Company v. Poor, 103 Ind. 553, 3 N. E. 253.) The ownership need not be extensive, and an agent, factor, broker, bailee or other person having rights in the property to be protected may maintain an action, and recover both for himself and the general owner. (Chamberlain v. West, 37 Minn. 54, 33 N. W. 114; Harrington v. King, 121 Mass. 269; Finn v. Western Railroad Corporation, 112 Mass. 524, 17 Am. Rep. 128; Green v. Clarke, 12 N. Y. 343; Bost. and Me. R. R. Co. v. Warrior Mower Co., 76 Me. 251.) We think the plaintiff in this case, had sufficient interest in the property to enable it to maintain this action. In the case of Bost. and Me. R. R. Co. v. Warrior Mower Co., supra, a case very similar to this, the court.said:

“Ordinarily when a plaintiff sustains his action it is presumed that the whole amount of damages recovered will belong to him. In fact, the injury to him or to his property is the measure of the damages. But while this is the general rule there are exceptions, not to the extent or measure of damages, but to the interest the plaintiff may have in them. It is true that an action cannot be maintained unless the plaintiff has an interest in the subject-matter of the suit, but he may do so when he is not interested to the full extent of the damages to be recovered. Such are the familiar cases of injury to property in which there is a general and special owner, as bailor and bailee, consignor and consignee, principal and factor. In such cases the action may not be brought in the names of the two jointly, but may in the name of either. In the action now in question the subject-matter was mowing-machines and parts of mowing-machines. The damage claimed rests upon a neglect of the carrier by which the property was improperly delayed in its transit. The facts show that the title to the property was in the mower company; that it had consigned and forwarded the machines to Dunham by virtue of a contract under which Dunham was to sell them for a specified commission and account to the company for them at a specified price. Dunham was also to pay the freight. This contract, while it did" not change the title in the machines and pieces, gave Dunham such a special property in them as to enable him to maintain the action in his own name, and the consignment and forwarding [of] the property, thus setting it apart and putting it into the hands of the carrier for his benefit, gave him a constructive possession sufficient for that purpose; and as the injury was the result of a single wrongful act to the whole property the damage could not be apportioned but must all be recovered in that one action, the judgment in which would be conclusive against any suit by the general owner. . . . Hence Dunham, in his suit, is entitled to recover not only his own damages but such as have accrued to the mower company as general owners. The measure of damages as held by the court in that case can be applicable upon no other theory. If, then, Dunham should receive the whole damage recoverable in his suit, he would be entitled to retain his own share, and the balance he would hold as trustee for the mower company.” (Pages 259, 260.)

In the case of Southern Express Company v. Armstead, 50 Ala. 350, it was said:

“The consignee of goods has a right to sue for their loss by the carrier, notwithstanding another party may be the owner of them. The obligation is to deliver to him. Generally the property vests in him by the mere delivery to the carrier. Although the absolute or general owner of personal property may support an action for any injury thereto, if he have the right of immediate possession, this does not necessarily devest the right Of the consignee to sue, notwithstanding he has never had the actual possession.” (Page 352.)

A judgment in favor of the plaintiff can work no harm, as it would be a bar to an action for the.same injury by the Portf Huron. company. (White et al. v. Bascom et al., 28 Vt. 268; Green v. Clarke, 12 N. Y. 343; Harker, et al., v. Dement, 9 Gill [Md.] 7, 52 Am. Dec. 670; Little v. Fossett, 34 Me. 545, 56 Am. Dec. 671.) The plaintiff holdsin.-trustfoiL-the Port Huron company whatever remains of the amount recovered, after payment of its commission. (Chamberlain v. West, 37 Minn. 54, 33 N. W. 114; Finn v. Western Railroad Corporation, 112 Mass. 524, 17 Am. Rep. 128; White et al. v. Bascom et al., supra; Little v. Fossett, supra.)

A consignee has the right to withhold a freight bill, when its damages exceed that amount, and in such a case the refusal of the carrier to deliver .the goods.until the--freight is paid amounts to a conversion. (5 A. & E. Encycl. of L. 232; Miami Company v. Railway Company, 38 S. C. 78, 16 S. E. 339, 21 L. R. A. 123, 55 Am. & Eng. Rld. Cas. 688; 6 Cyc. 497; Railway Co. v. Goodholm, 61 Kan. 758, 60 Pac. 1066.) The measure of damages' is compensation for the injury sustained. An amount which will place the injured party in the same condition he would have occupied if no loss had ‘'occurred will satisfy this requirement. If in this case the machinery had been delivered according, to contract, the price for which it had been sold would have been realized. Out of this amount the commission dqe the plaintiff would have been deducted. The freight would have been paid by the purchasers of the machinery. The selling_4niice_at — the--plaee--of "delivery seems, therefore, to be the true measure of damages. We think the amount recovered in the' district court fairly compensates all parties for the losses sustained. Out of this amount the plaintiff will retain a sum equal to the commission lost, and múst account to the Port Huron company for the remainder.

Finally, it is insisted that a sale of the machinery was not within the contemplation of the parties at the time of shipment, and, therefore, the commission is not a proper element of damages. . A railroad company must be held to know facts familiar to ordinary people. It is fair to assume that a carrier of thrashing-machines knows what they are used for, and that the only purpose implement dealers have in shipping such property into the heart of a great wheat country is to sell it. When a shipment of thrashing-machines is made in June of any year, the inference follows that, if they are not already sold, an immediate sale is intended. We think, therefore, that the loss of a commission is not so remote as to be excluded as an element of damages in this case.

SYLLABUS BY THE COURT. Railroads — Injury to Goods in Transit — Carrier’s Lien — Conversion. Where a common carrier becomes liable to the consignee of goods for injury to property while in transit, and the amount of the damages occasioned by such injury equals or exceeds the freight bill on the damaged goods, the lien of the carrier is thereby extinguished, and the consignee is entitled to the possession of such goods without payment of freight; and in such a case the refusal of the carrier to deliver the goods to the consignee upon demand constitutes a conversion.

The general rule that damages caused by the loss of a sale not ypthin- the contemplation of the parties cannot be recovered has no application to the facts here shown. No error appearing, the judgment of the district court is affirmed.

All the Justices concurring.