Florence Manufacturing Co. v. Pacific Express Co. , 36 Utah 346 ( 1909 )

STRAW, C. J.

The plaintiff brought this action to recover the value of merchandise alleged to have been lost in transit. The plaintiff alleged that it, at Florence, Mass., delivered two boxes of merchandise of the value of $398.20 to the American Express company, a common carrier of goods, to be transported to the consignee at Salt Lake City; that the goods were carried to Omaha, Neb., where they were transferred and delivered to the defendant, also a common carrier of goods; and “that the defendant did not safely carry and deliver said goods, but, on the contrary, so negligently conducted and misbehaved in regard to the same as such carrier that the said merchandise was wholly destroyed and lost.” Tbe defendant denied all tbe material allegations of tbe complaint, and alleged that tbe goods were delivered to and accepted by tbe American Express Company for transportation upon a special written contract by tbe terms of wbicb it was stipulated and agreed, among other things, that tbe carrier should not be liable for any loss or damage to tbe property exceeding tbe sum of fifty dollars unless tbe true value thereof was stated in tbe contract of shipment, and unless a claim of loss was presented in writing within ninety days after shipment, and that .the stipulations contained in tbe contract extended and inured to tbe benefit of connecting carriers. Tbe defendant also alleged that no valuation was placed on tbe merchandise by tbe plaintiff when it was delivered for shipment, and that no claim of loss was presented within ninety days after shipment. Tbe case was submitted to tbe court upon an agreed statement of facts upon wbicb tbe court made findings and rendered a judgment in favor of tbe plaintiff for tbe sum demanded in tbe complaint.

Tbe findings do not show, nor is .it sufficiently shown by tbe agreed stipulation of facts, whether tbe merchandise was shipped in pursuance to tbe special contract of shipment alleged in tbe defendant’s answer. Neither tbe stipulation nor tbe fiiidings show whether a valuation was placed upon tbe goods by tbe plaintiff when they were delivered for shipment, or whether a claim of loss was presented. Tbe agreed statement of facts shows-that tbe “shipment was.destroyed while in transit” in tbe state of Wyoming, but by whom, or through whose default, or in what manner, or from what cause, is not stipulated or disclosed. The'findings show that the defendant “failed and neglected to safely carry tbe goods, . . . and permitted and caused them to be wholly destroyed.” But tbe findings in such respect cannot be broader than tbe stipulation of facts upon wbicb tbe case was submitted to tbe court as to all tbe issuable-facts. Counsel in making tbe stipulation of facts and in causing findings to be made were quite precise and definite in stipulating and causing to be found tbe corporate existence, capacity, and business of the parties, and various other things, upon which there was no issue, but failed to stipulate with respect to many of the material and issuable facts. The findings as made are not even within the stipulation, nor are they, nor is the stipulation, 1 responsive to the pleadings.

The judgment is therefore without support, and must be reversed and the ease remanded for a new trial. It is so ordered, with costs to appellant.

ERICK and McCARTY, JJ., concur.