Congar v. Galena & Chicago Union Railroad , 17 Wis. 477 ( 1863 )

By the Court,

Cole, J.

Tbe first objection taken in this cause is to tbe ruling of tbe court upon tbe application for a continuance. In tbe first instance, tbe application was founded upon tbe fact that tbe respondent bad taken on commission considerable testimony to be used on tbe trial without tbe company s having any opportunity to file cross interrogatories. The attorneys of tbe company filed affidavits, in- which they stated that they were taken by surprise to find that tbe commission bad been executed; that they bad used due diligence to prepare for trial in tbe view they bad taken of tbe case until they found tbe testimony here. We shall not dwell upon tbe question, whether sufficient notice bad been given of tbe taking of tbe testimony to authorize tbe respondent to use it on the trial, because tbe whole reason for a continuance upon tbe ground upon wbicb it was asked, was removed by tbe respondent’s withdrawing tbe depositions from tbe files and proceeding to trial without them. This is very clear. When it appeared that tbe respondent was willing to proceed to trial without these depositions, tbe application for a continuance was renewed upon tbe same affidavits.

That tbe circuit court very properly, under the circumstances, denied this second application, is very obvious., It is claimed that tbe court entirely overlooked the fact that it was stated in tbe affidavits that matters bad come to tbe knowledge of tbe attorneys of tbe company from reading tbe depositions wbicb were withdrawn, showing that Fox and Wright were material witnesses and would establish a perfect defense to tbe action. But it fully appeared from tbe letter of Mr. Green, written from Mount Carmel, where those witnesses resided, some months before the trial, that he had been employed by the company to attend to the taking of testimony at that place. Green knew Eox, and says he believed he could get information from him which would be useful, or words to that effect. The agents of the company knew, then, for months before the trial, that Eox possessed some information upon the subject matter of the litigation, and by inquiring of him they could have readily learned what he and his partner Wright knew upon the subject. Yet it is said the agents of the company did not know that these persons were material witnesses until shortly before the case was called for trial. If they did not, they were grossly negligent in looking up their testimony and preparing the defense. So far from showing that diligence had been used to obtain the testimony of these witnesses, the direct contrary appeared. Eor this reason we are of the opinion that the second application for a continuance was devoid of merits.

Again, it is contended that the court erred in not permitting the company to show, on the cross-examination of the witness Orville H. Congar, that it had settled with him for all the damages resulting from the detention of the trees. There are several very sufficient answers to be given to this objection. In the first place, the questions asked on the cross-examination had no reference whatever to the matters gone into on the direct examination. It was new matter entirely, relating to the defense, and if the company wished to examine the witness upon that matter, it should have made the witness its own, and called him as such at the proper ’ stage in the cause. But a still more conclusive answer to the competency of this proof is, that there was not a particle of evidence given or offered tending to show that the witness had the least authority from his brother to make any such settlement, if he did in fact attempt to make it.. It abundantly appears from the case, that this witness was sent down to Chicago to find the trees and forward them to the place of their destination. This was the extent of his authority as shown by his own testimony, and if he assumed to make a settlement for damages to the trees, it is very obvious that the act was wholly void, and did not bind the principal. We suppose this to be too familiar a rule of law to require any illustration or further comment. Therefore, until it was shown that the agent had some authority to make such a settlement, it was quite immaterial whether he made one or not. It could not, with any propriety, be said that a special authority to look up property mislaid or lost by a common carrier implied the authority to settle for all damages resulting from the neglect of the carriel’ to perform his contract. And upon this ground the questions asked the witness on the cross-examination, whether he had made a settlement with the company or not, were clearly inadmissible.

The question whether the company was guilty of carelessness in carrying and transporting the trees according to the direc; tions upon the boxes, or whether the delay of several days at Chicago did or did not cause the damage complained of, was clearly a matter for the jury to determine from the evidence. It is suggested that the mistake in sending the trees to Bridgeport near Chicago, instead of “Bridgeport, 111.,” was caused by the imperfect marking of the boxes. It was of course the duty of the railroad company, receiving the goods for transportation, to exercise a reasonable degree of care in ascertaining, from the marking upon the boxes, the place of destination, and if its road did not extend but part of the way, it should have delivered the goods to the proper'company to be forwarded by the usual road. In this case the boxes were marked “ Bridgeport, Ill., for Mt. Carmel, Ill., care Ill. Central Railroad,” and it is not pretended that they were delivered to the Illinois Central road until after a delay of several days. The liability of the defendant did not cease until it had delivered tbe property to tbe Central Railroad Company according to tbe usual course of business.

This brings us to tbe motion for a nonsuit, wbicb was based upon two grounds: 1. That tbe plaintiff bad failed to sustain tbe allegations of bis complaint to tbe effect that tbe defendant was a foreign corporation having property in this state, and that tbe cause of action arose within. tbe state ; and 2. That tbe action should have been brought in the name of tbe consignees of tbe goods.

All that it is necessary to say upon the first point is, that though this was an action against a foreign corporation, yet as tbe defendant made a general appearance in tbe cause by putting in an answer and going to trial upon tbe merits, this, within all tbe authorities, gave tbe court jurisdiction of tbe defendant. Of course, if there bad been no voluntary or general appearance, then tbe court could have acquired jurisdiction of tbe corporation only in the manner pointed out in tbe statute. But because there was such an appearance, tbe court acquired jurisdiction and could render a personal judgment against tbe defendant. It is said that tbe question of jurisdiction was not waived by an appearance, because an objection to tbe jurisdiction of tbe court can be ta,ken at any time. Undoubtedly'tbe objection that a court has not jurisdiction of the subject matter of tbe suit can be raised at any time, but a party cannot, after appearing in a cause and going to trial upon tbe merits, then say that tbe court never acquired jurisdiction of tbe person. We were referred to a great many authorities upon this point, but we do not find any that bold that a general appearance in tbe cause does not give tbe court jurisdiction of a foreign corporation. Eor this reason tbe cases cited by counsel are all inapplicable.

:-We proceed to notice tbe only remaining objection wbicb we deem it necessary to consider, namely, that tbe action should have been brought by tbe consignees and not by the respondent. Xt is a conceded proposition on both sides, that tbe owner of the goods, whether consignor or consignee, should bring the suit for an injury caused by the negligence of the carrier. And it is further admitted, that when there is no proof as to the ownership of the property, the consignee is presumed to be the owner of it, and is the proper party to sue for any injury to it. The presumption of ownership which results from an unqualified consignment, may be rebutted ; and whenever it appears that the person suing is the real owner, there is an end of the objection that the action shoud be brought in the name of the consignee. This principle seems to be well established by the authorities cited on the brief of the counsel for the respondent. See also a very interesting discussion as to who may bring suit for a breach of duty by the carrier, by C. J. Shaw in Blanchard vs. Page, 8 Gray, 281. In this case we are fully satisfied that the respondent was the real owner of the property at the time of the injury, and is therefore the proper party to bring the action. This we think appears from the written order itself. The material part of the order reads as follows: “ Mr. H. A. Congar, Whitewater, Wis., will please forward us the following bill of stock immediately, if the weather will permit, to Bridgeport, Illinois. Terms, our notes at six and twelve months, given jointly, with interest. 60,000 apple grafts, &o. * * * * All the above stock to be properly packed and delivered at the railroad depot in Whitewater, Wisconsin, free; freight and charges to be paid by us on delivery at Bridgeport, Illinois. Sum total of stock, $1,200. (Signed) E. Fox, R. E. Weight.” Fox and Wright lived at Mount Carmel, Ill., some three or four hundred miles from Whitewater, the residence of the respondent. The goods, it will be seen, were to be delivered at Brigdeport, —which, it appears, was the nearest railroad station to Mount Carmel, — and were to be paid for by the joint notes of Fox and Wright, payable in six and twelve months. It is true, the order says the “ stock is to be properly packed and delivered at the railroad depot in Whitewater, free,” &c., but from this we understand that Fox and Wright were to be at no expense for the packing of the goods or hauling them to the depot at Whitewater. But the controlling circumstance which convinces us that the title to the property would not pass upon th^ delivery at Whitewater is, that it was to be paid for in the notes of the vendees. Change of ownership and payment were to be concurrent acts. And where, as in this case, payment was to be made in the notes of the vendees, we suppose it well settled that the interest does not vest until the giving of the notes. As already observed, the parties resided at a distance from each other of three or four hundred miles. Is it probable that they intended the sale should be complete on the delivery of the property at Whitewater, whether the notes were ready for delivery or not? If so, why was anything said about delivering the goods at Bridgeport, the vendees paying railroad freight and charges to that place ? For if the general property passed to the vendees on delivery at Whitewater, then the goods were at their risk, and of course they would be liable for freight. We think the delivery which was to change the owership was the one at Bridgeport near the residence of the vendees, when they would be able to comply with the condition of the sale by executing and giving their notes. And this construction of the order is strengthened and sustained by every fact and circumstance testified to by the witnesses. ■'

We think these remarks sufficiently dispose of the material questions in the cause.

Judgment of the circuit court affirmed.