7. PLEADING 11-CARRIAGE OF GOODS-ACTION FOR DAMAGES.

It is not enough to plead evidence that might tend to prove the condition of property when a defendant carrier, sued for damages, took charge thereof.

8. TRIAL 251(1)-INSTRUCTIONS APPLICATION TO ISSUES.

Instructions must present the contention of each party to the jury, and they must correspond to the issues presented.

Department 1. Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge. Action by W. N. Daniels, doing business as the La Grande Creamery Company, against the Northern Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The defendant is a railway common carrier of goods. The plaintiff alleges in substance that he purchased in Concordia, Kan., 330 boxes of butter and 37 boxes of poultry, and caused them to be shipped in good order by another railroad company connecting with the line of the defendant consigned to him

self at Portland, Or. He says:

until two days afterward. The answer further charges negligence upon the plaintiff in failing to remove the goods from the car immediately on its arrival. The new matter of the defendant's pleading was traversed by the reply. The judgment went for the plaintiff, and the defendant appeals.

Omar C. Spencer, of Portland (Carey & Kerr, of Portland, on the brief), for appellant. Ralph A. Coan, of Portland (Pearce & Meloney, of Portland, on the brief), for respondent.

BURNETT, J. (after stating the facts as above). [1] One error complained of by the defendant is that a witness who testified that he had been in the business of dealing in butter, eggs, and poultry since 1902, and that butter was very susceptible to foul odors, which would damage it, was allowed to answer this question, "What would be the amount of such damage?" by saying, "Well, the amount of such damage would run as high as seven to eight cents a pound." That this was error was decided in Burton v. Severance, 22 Or. 91, 29 Pac. 200; Pac. Live Stock Co. v. Murray, 45 Or. 103, 76 Pac. 1079; Montgomery v. Somers, 50 Or. 259, 90 Pac 674; Pac. Ry. & Nav. Co. v. Elmore Packing Co., 60 Or. 534, 120 Pac. 389, Ann. Cas. 1914A, rule is that a witness is not allowed to in371, and other cases. The reason of this vade the ultimate province or function of the jury to declare the amount which will com

pensate the plaintiff for the injury suffered. "That when the said poultry was delivered to If good butter had a market price known to the said railroad company by the said John dealers generally and to the witness in parStewart, consignor, for shipment as aforesaid, ticular he might have stated that price, and the same was in first-class condition, the poultry if he knew the butter after it became tainthaving been solidly frozen in the boxes and ed and that it had a market price in that thoroughly iced by the consignor after being packed in said car, but by reason of the negli- condition he might have told what it was. gence and carelessness of the defendant, its He might, also, have given his opinion that agents and servants in charge and control of the quality of the butter would be depreciatsaid car containing said goods in failing to ed a certain percentage, but he would have thoroughly re-ice the same and otherwise properly care for the said poultry in boxes in tran- no right to assess the amount of damage per sit," the same became putrid, so that it was ut-pound. That must be left to the jury. terly valueless when it arrived at its destination in Portland.

Substantially the same averment is made concerning the butter which is said to have become tainted by the odor of the decaying fowls. The defendant denies all the allegations in the complaint. The answer says in

effect that the defendant received the car at Billings, Mont., but that at the time the poultry was in a putrid condition because it had not been properly frozen and prepared before loading, and goes on to say that the company transported the shipment to Portland with all possible speed and all the ordinary care and caution required, delivering the articles at their destination in the same condition in which they were when received by the defendant at Billings; that at once it notified the plaintiff of the arrival of the car, but that he did not begin to unload it

The bill of exceptions discloses that there was some testimony to the effect that the shipment was delivered to the initial carrier in good condition, and that on arrival at Portland, Or., it was delivered by the defendant in bad order. From the same source we learn that the defendant offered the depositions of sundry witnesses who handled the refrigerator car in question from its arrival in Billings, Mont., to Portland; that the car was sealed with the seals of another road; that ice and salt were supplied in the ice boxes of the car whenever needed while it was in the custody of the defendant, and that it was properly handled and transported over the line of the defendant in the usual time and without unnecessary delay. It is said in the record that the plaintiff offered no evidence to rebut the testimony of the de

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

fendant, and tendered nothing to prove how the car was handled from the time it left

Concordia until it reached Portland. The defendant seasonably requested the three following instructions:

"If you find in this case that the defendant received the carload of poultry and butter and used reasonable diligence in re-icing the car and handling it through to its destination in Portland, and offered delivery of it in the same condition as when it was received at Billings, Mont., then the defendant has performed its full duty to the plaintiff, and there can be no recovery against it in this case."

they continued in that good condition at the time of transfer to this company. The company, however, might show that at the time they received the goods they were in a tainted or putrid condition, but the burden would rest upon the company to establish that condition by a preponderance of the evidence."

[2, 3] The essence of the accusation against the defendant is that it failed thoroughly to re-ice the car and otherwise properly to care for the goods in transit. The issue was joined on this averment only, and nothing further. It is not directly alleged that the property "It is alleged in the second amended complaint was delivered to the defendant itself in good that the negligence of the defendant consisted order. The nearest approach to that is that in its failure to thoroughly ice the butter and the chattels were in that condition when depoultry and otherwise properly care for the

same while in transit. I charge you that the delivered to the initial carrier. It is admitted fendant railway company did not insure against that the property was perishable in its nanatural decay of the produce shipped except ture, and hence the company was not liable such decay as would happen because of its as an insurer. The measure of its duty was failure to use reasonable diligence in re-icing and salting the car. If, when this produce to use reasonable care and diligence, conreached Portland, it was in a worse condition sidering the nature of the chattels involved. than when it left Concordia, Kan., because of This feature was discussed in Michellod v. its age, nature, or quality, or because it was Ore-Wash. R. & N. Co., 86 Or. 329, 168 Pac. unable to stand the summer weather under ordinary and reasonable car refrigeration, and you 620. These first two instructions embraced find that it had ordinary and reasonable car the contention of the defendant as disclosed by refrigeration, then there can be no recovery in the pleadings, and it was entitled to have the case against the defendant." that theory presented to the jury; there being testimony on that point supporting such instructions. For this reason it was error to refuse them. Bingham v. Lipman, 40 Or. 363, 67 Pac. 98, Scholl v. Belcher, 63 Or. 310, 127 Pac. 968, and West v. McDonald, 64 Or. 203, 127 Pac. 784, 128 Pac. 818, are illustrative of this rule.

"If you find in this case that the damaged condition of the butter or poultry was caused by the failure of the shipper at Concordia, Kan., to properly prepare the same, or to properly load it in the car, or to properly ice or cool the car at the beginning of the journey, or if you find that the damaged condition of the poultry or butter was caused by the failure of the Chicago, Burlington & Quincy Railroad Company to ice or care for the car, and that the defendant Northern Pacific Railway Company used reasonable diligence in icing and handling the car from the time it received the car until it offered delivery, then there can be no recovery against the defendant Northern Pacific Railway Company in this case."

These were refused over the exception of the defendant, and the court charged the jury on that branch of the case as follows:

[4] There is no evidence disclosed by the bill of exceptions indicating that there was any failure at Concordia, Kan., properly to prepare the shipment, either in loading or cooling it at the beginning of the journey. Neither was there anything tending to show hence the third instruction is without a basis that the initial carrier was remiss in its duty; authorizing the jury to consider it. It was properly refused.

"Your first inquiry, gentlemen, will be what was the condition of the poultry and butter at the time it was shipped at Concordia, Kan.; [5-7] The charge given by the court does and if you find from the evidence in this case not allow the defendant to exonerate itself that this butter and poultry was in good condition and properly packed for shipment at the even by showing affirmatively that it did in initial point of shipment, which was Concordia, fact thoroughly re-ice the car and properly Kan., and that when it arrived in the city of care for the property while in its custody, Portland it was in a tainted and putrid condi- but imposes upon it the additional burden, tion, then the presumption of law arises that it became tainted en route, and through the fail- not included in the pleadings, of proving that ure of the transporting company. The burden the damaged condition was due to some would rest upon the defendant, therefore, to cause over which it had no control. If the show that the property, if received in good goods were damaged by decay when they condition, became tainted from some cause for which it was not responsible. And it would came into the possession of the defendant have to satisfy you in that case by a preponder- the re-icing would not have restored them. ance of the evidence that the tainted and putrid On the other hand, if they were sound when quality of those goods when they arrived in the the defendant took them, its whole duty in city of Portland, if such you find it to be, was the case, as the pleadings state the issue, was caused by something which it could not control,, either by the act of the shipper or by some in- fulfilled if and when it thoroughly re-iced herent quality of the goods themselves, which the car as reasonably necessary and with fair produced this putrefaction and taint. The bur- diligence took proper care of it over its line. den of proof would likewise be upon the company to show that at the time the goods were Further than this the plaintiff does not point transferred to it in the state of Montana, or at out anything which the defendant ought to whatever point the transfer was made, that have done, but did not, which would have the goods were then in a putrid or tainted con- kept the articles wholesome and merchantdition, because, as I have said, if it be found by you that the goods were in good conditionable. As they were admittedly perishable in

MCBRIDE, C. J., and BENSON and HAR- appropriation above stated. The matters RIS, JJ., concur.

PORTLAND & O. C. RY. CO. v. McGRATH attempting to secure a different route for its

Under L. O. L. § 6866, providing upon the payment into court of the damages assessed by the jury in proceedings for condemnation of land the court shall give judgment appropriat-ing on December 23d, the court entered a ing the lands to plaintiff, the plaintiff, after ver- judgment against the plaintiff for the amount dict, may elect whether it will pay for and take of the verdict, of which plaintiff complains. the property.

BEAN, J. [1, 2] The statute provides that upon payment into court of the damages as3. EMINENT DOMAIN 241-DUE PROCESS ment appropriating the lands, property, sessed by the jury, the court shall give judgOF LAW-CONSTITUTIONAL PROVISIONS. Under Const. art. 1, § 10, providing that rights, easements, crossing, or connection in every man shall have remedy by due process of question, as the case may be, to the corporalaw for injury done him and his property, tion. Lord's Oregon Laws, § 6866. In a prowhere, after verdict for plaintiff in proceeding to condemn land, plaintiff has taken possession ceeding of this kind, after a verdict assessing of such land, the defendant has the right to the damages has been obtained, it is for the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Johnson, Co. Atty., of Globe, Kirby D. Little, | through his body. The deceased was told Asst. Co. Atty., of Miami, and F. C. Jacobs, of Globe, for the State.

END OF CASES IN VOL. 171