to him for the charges and by delivery | rier to collect its full rate is not questioned. waives its lien therefor in the faith that the consignee will pay them. The difference between that case and the one at bar is this: In that case the goods were consigned to the defendant and contained the provision that the consignee was to pay the freight; while in this case the lumber was not consigned to defendant, but was consigned by the Falls City Lumber Company to itself, and the bill of lading did not contain a stipulation that defendant was to pay the freight. Indeed, it made no reference to defendant as being in any manner liable for the payment thereof. The only reference to defendant contained in the bill of lading was "Notify W. L. Stickel Lumber Company." There was nothing in this to indicate to plaintiff that defendant was the owner of the shipment, or in any manner interested in it except as agent for the consignee named in the bill of lading. We think, therefore, that the cited case is clearly distinguishable from the case at bar. Nor would we question that right in a case brought by the carrier against either the consignor or consignee named in a bill of lading. In such a case both the consignor and consignee are parties to the contract of shipment, and, while the original contract may be between the carrier and the consignor, the bill of lading itself would advise the carrier that the consignee named in the bill of lading is the one who is entitled to the possession of the goods covered by the shipment; or, as stated in Cornelius & Co. v. Central of Georgia R. Co. (Ala. App.) 69 South. 331, the railroad company would be "entitled to rely on the presumption that the consignee is the owner of the shipment." In the case at bar, defendant, as already shown, was neither the consignor nor consignee named in the bill of lading. There was nothing in the bill of lading to warrant the carrier in indulging a presumption that the title to the shipment had passed to defendant. So far as the record before us shows, the only presumption that plaintiff was entitled to indulge in this case was that the defendant would represent the consignor, who was also the consignee, when the shipment arrived at its destination. This would imply nothing more than that defendant in that respect would act as agent for the consignee in receiving the goods. We do not think that in such a case the agent would incur a primary liability for the payment of any freight beyond the amount that was demanded at the time it acted for its principal. It probably must be conceded that under the far-reaching scope of the act of Congress the agent in such a case might be held to have incurred a secondary liability. Whether so or not, a question which we are not now called upon to decide, the duty of the plaintiff in this case is to first exhaust its remedy against the consignor and consignee before it can proceed against defendant. This holding is in no manner in conflict with the act of Congress, or the holding of the Supreme Court of the United States in construing such act; nor will it do any injustice to the plaintiff, as it can as well pursue its remedy, primarily, against the consignor, with whom it contracted, as to pursue a third We have not overlooked Texas & P. R. Co. v. Mugg, 202 U. S. 242, 26 Sup. Ct. 628, 50 L. Ed. 1011, and Louisville & N. R. Co. v. Maxwell, 237 U. S. 94, 35 Sup. Ct. 494, 59 L. Ed. 853, L. R. A. 1915E, 665. In the Mugg Case the question involved was the right of the shipper of three carloads of coal from Coal Hill, Ark., to Weatherford, Tex., at a rate previously quoted by the carrier, on which the shipper relied to contracting for the sale of the coal shipped, to compel delivery of the coal to the shipper at the point of destination upon payment of the quoted rate which the carrier had, prior to the arrival of the coal at the point of destination, discovered was a lower rate than the interstate rate in effect at the time the shipment was made. The Supreme Court held that the shipper was not entitled to a delivery of the coal until payment of the interstate rate was made. The decision in that case was clearly right; but the case, it will be seen, deals only with the respective rights of the shipper and carrier. In the Maxwell Case, Maxwell desired two round-trip passenger tickets from Nashville, Tenn., to Salt Lake City, by one route, and a return by another. He purchased the tickets at the rate quoted, which proved to be $29.15 less, on each tick-party with whom it had no contractual reet, than the interstate rate, which, it was conceded, had been duly published and was In force at the time the tickets were purchased. Here again, the case involved the rights of the original contracting parties, viz., the passenger and the carrier. A reading of the syllabus, and of the opinion by Mr. Justice Hughes, shows that no other question was considered. The right of the carrier to collect the interstate rate, as duly fixed and published, was upheld. We are in entire harmony with the holding in these two cases; but they have no application to the case at bar. Here the right of the car lations, either actual or constructive. There is nothing in the agreed statement of facts showing that defendant was the owner of the lumber, or to the effect that the words, "Notify W. L. Stickel Lumber Company," would warrant plaintiff in presuming that the defendant was the owner or the actual consignee; and for us to so hold would be to extend the liability of defendant by construction, in order to furnish a basis for reversing the judgment. This an appellate court will not do. Upon the contrary, it will indulge the presumption that the parties have deliberately put into their agreed statement of facts everything necessary to support their that the property was overinsured. Neither respective contentions. In the firm belief that we are acting in entire harmony with the views and reported holdings of the Supreme Court of the United States, the judgment is affirmed. HAMER, J., not sitting. PETERSON v. HARTFORD FIRE INS. CO. 23(3)-FIRE Appeal from District Court, Washington County; Troup, Judge. Action by Paul Peterson against the Hartford Fire Insurance Company. From a judgment for plaintiff, defendant appeals. firmed. Af Gurley, Woodrough & Fitch, of Omaha, for appellant. Herman Aye, A. W. Jefferis, and F. S. Howell, all of Omaha, for appellee. MORRISSEY, C. J. This is an action to recover on a settlement of a liability created by a policy of fire insurance. From a verdict and judgment in favor of plaintiff, defendant appeals. This is the second time the case has been in this court. The former opinion is found in 93 Neb. 448, 140 N. W. 761, the opinion being controlled by its companion case, Springfield Fire & Marine Ins. Co. v. Peterson, 93 Neb. 446, 140 N. W. 760. The facts are sufficiently stated in the two cases mentioned and will not be repeated here. On the retrial of the case, defendant filed an amended answer alleging that the agreement of compromise and settlement was fraudulently procured, and the court instructed the jury to the effect that the question to be determined was: Did the defendant enter into the adjustment and compromise settle ment by reason of any fraudulent representation or deception practiced by plaintiff? No complaint is made of this instruction, and we will assume that this issue was practically the only one on which the jury passed. De fendant contends that the adjustment and settlement on which recovery is had was so clearly shown to have been obtained by fraud that there is no room for an honest difference of opinion, and therefore the verdict and judgment are not sustained by sufficient evidence. This is the only point urged in the brief, and will be the only question considered. There is now no contention that there was any fraud in procuring the insurance, or is there any suggestion that there is any suspicious circumstance connected with the fire. During the fire, the linotype machine was drenched with water and became covered with débris. The roof was burned off the building, and plaster and cinders literally covered the machine. The timbers on which the machine rested were burned to such an extent that plaintiff and defendant's adjuster thought it unsafe to go about the machine very much for fear the timbers might give way, and they, together with the machine, be precipitated into the basement. The adjuster did not regard himself as competent to pass on the damage, and between them it was arranged to have an experienced linotype man from Omaha look the property over. At the suggestion of plaintiff, a man named Bush, who had helped to install the machine, was procured, and he, together with plaintiff, looked the machine over; but, for the same reasons that deterred the adjuster and plaintiff from making a careful examination, he refrained from removing the débris from the machine, but took a long-distance view of it and then made a report in writing, stating: "Upon inspection I found the following parts necessary to equip the machine so as to put it in running order." He then gave a list of parts by taking a catalogue of parts, listing them, with the prices given in the catalogue. This report showed the total amount required to be approximately $1,900. Bush read from this catalogue while Peterson did the writing, and together this statement was prepared. The claim is now made that this report of loss was worked out by Peterson and Bush for the purpose of defrauding defendant; that it is untrue; that defendant was deceived thereby; and therefore a recovery cannot be had thereon. Plaintiff testified that, after this report had been made to the adjuster, he had a conversation with the adjuster, that they went over the matter together, and the adjuster said that the statement made by Bush was not a statement of the loss, and did not purport to be the loss at all, but that it was a statement of what it would cost to "rebuild the machine," while defendant was liable only for the actual loss, and he made an offer to pay the amount on which settlement was finally made. There is a letter in the record from the adjuster which fully corroborates the testimony of the plaintiff. It says: "We are unable to understand from what Mr. Bush figured in making his estimate, as to our minds it is entirely out of proportion with the actual damage sustained by fire, and we must say to you frankly that we cannot consider this estimate as a basis for settlement." The correspondence discloses that after Bush made his report defendant had arranged for an expert from the factory mak For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ing the linotype machine to inspect the loss. And this inspection would have been made had not plaintiff accepted defendant's offer of settlement. It is quite evident that neither plaintiff nor defendant's adjuster removed the débris from the machine or made as careful an examination as they ought to have made before undertaking to adjust the loss. No doubt, each honestly believed that the machine was greatly damaged. It subsequently developed that the débris which fell on the machine had protected it from the fire and that it had suffered very little damage. Defendant, in its brief, lays much stress upon the language of the report made by Bush and the fact that it was prepared in the office of plaintiff and to some extent, at leust, under his direction. But the subsequent conduct of defendant's adjuster and his correspondence fairly show that he did not rely upon this statement, and we think it may be reasonably inferred that, having seen the property, he relied on his own judgment and thought at the time he was making an advantageous settlement. Here we have two parties dealing at arm's length, each seeking to make the best settlement attainable. They do make a settlement. Afterwards it is discovered that one has gained an advantage thereby, but for this reason alone we cannot set their agreement aside. If, when the débris was removed and the machine examined, it were found that the damage exceeded the amount of the settlement, it is not unlikely defendant would have taken advantage of the agreement made and would have enforced it. The verdict of the jury has ample support in the evidence, and the judgment is affirmed. SEDGWICK, J., not sitting. MEMORANDUM DECISIONS BILLMEYRE et al. v. INTERNATIONAL LUMBER CO. (No. 19617 [241].) (Supreme Court of Minnesota. Jan. 28, 1916.) Appeal from District Court, Koochiching County; C. W. Stanton, Judge. Action by F. M. Billmeyre and others against the International Lumber Company. From judgment for plaintiffs, defendant appeals. Affirmed. Harris Richardson and Walter Richardson, both of St. Paul, for appellant. F. J. McPartlin, of International Falls, for respondents. PER CURIAM. Action to recover for the conversion of logs. Verdict for the plaintiff. Defendant appeals from the judgment. The defendant insists that the evidence does not justify the amount of the verdict returned. We have carefully examined all of the evidence. The verdict might well enough have been somewhat smaller but the evidence sufficiently supports it. We have examined all of the assignments and find no reversible error. They are not of a character requiring detailed mention. Judgment affirmed. In re LARSON. SON. (No. 19577 [180].) (Supreme Court of Minnesota. Feb. 4, 1916.) Appeal from District Court, Clay County; C. A. Nye, Judge. Statutory arbitration between B. B. Larson and K. O. Slette and others, wherein the arbi trators fixed the value of bank stock. The court approved the finding of the arbitrators, and entered judgment for Larson, and Slette and others appeal. Affirmed. Christian G. Dosland, of Moorhead, and Victor Oleson, of Perley, for appellants. F. H. Peterson, of Moorhead, and Andreas Ueland, of Halstad, for respondent. SLETTE et al. v. LAR PER CURIAM. On October 20, 1910, B. B. Larson, K. O. Slette, I. O. Slette, and Clara B. Slette were owners of stock of the First National Bank of Culbertson, Mont., and of stock of state banks at Climax, Halstad, and Neilsville, Minn. They made an agreement whereby Larson was to become the owner of the stock of the Minnesota banks and the Slettes the owners of the stock of the Montana bank. The difference in value was to be paid by Larson or by the Slettes, depending upon whose stock should be of the greater value. Later they enThe arbitrators fixed the value of Larson's tered into a statutory arbitration of the value. Montana bank stock at $19,375 and the value of the Minnesota bank stock of the Slettes at $10,920, leaving a balance due Larson of $8,455. tors, and judgment was entered in favor of The court approved the findings of the arbitraLarson against the Slettes. The Slettes appeal from the judgment. We have examined the of the different bank stocks was very much a evidence. Necessarily the question of the value matter of estimate and judgment. In our opinion the evidence amply sustains the findings of the arbitrators. The evidence is voluminous, and no useful purpose is served by reviewing it. Judgment affirmed. STATE V. EDMONS. (No. 19475 [12].) (Supreme Court of Minnesota. Jan. 28, 1916.) Appeal from District Court, Nicollet County; I. M. Olsen, Judge. William Edmons was convicted of grand larceny, and appeals. Reversed. Thos. Hessian, of Le Sueur, for appellant. Lyndon A. Smith, Atty. Gen., and Geo. T. Olsen, of St. Peter, for the State. PER CURIAM. Defendant was convicted of grand larceny, and appealed from an order denying a new trial. A careful consideration of the record leads to the conclusion that no errors were committed on the trial, the instructions to the jury are not open to criticism, but a majority of the court are of opinion that the evidence of the criminal intent is so far doubtful as to require, in the interests of justice, the submission of the question to another jury. We therefore reverse the order appealed from, and remand the cause for a new trial. Order reversed. STATE V. MILLER. (Supreme Court of North Dakota. Feb. 9, 1916.) Appeal from District Court, Bottineau County; Burr, Judge. John Miller was convicted of crime, and appeals. Appeal dismissed. Mockler & Ulness, of Bismarck, for appellant. Henry J. Linde, Atty. Gen., and H. R. Bitzing, Asst. Atty. Gen., for the State. PER CURIAM. The respondent, pursuant to notice, has moved for a dismissal of the appeal for want of prosecution. The judgment of conviction was entered on December 5, 1914. Subsequently an appeal was taken therefrom, and the record on appeal duly transmitted to this court. No brief has been served or filed in behalf of the appellant, and no further proceedings taken by appellant. The record transmitted to this court consists of copies of the information, the court's instructions, and the verdict and judgment of conviction, and a transcript of the minutes of the trial. No statement of the case has been settled. The only errors that could possibly be assigned on this appeal would have to be predicated on the record before us. In view of the serious offense of which defendant was convicted, all the members of this court have carefully examined and considered the record transmitted to this court. The minutes of the trial show that no ruling was invoked or made on any motion or demurrer; that defendant entered a plea of not guilty and was defended by able counsel; that a verdict of guilty was returned and defendant sentenced pursuant to the verdict. The verdict and sentence are clearly unassailable, and the court's instructions are free from prejudicial error, and eminently fair to the defendant. We are all agreed that no prejudicial error could be predicated on the record before us, and, as no sufficient excuse has been shown for the failure to prosecute the appeal, the same will be dismissed. It is so ordered. CHICAGO, B. & Q. R. CO. v. RAILROAD COMMISSION OF WISCONSIN. (Supreme Court of Wisconsin. Nov. 16, 1915.) Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge. Action by the Railroad Commission of Wisconsin against the Chicago, Burlington & Quincy Railroad Company. From a judgment of the Supreme Court, affirming a judgment of the circuit court for plaintiff, defendant sued out a writ of error to the Supreme Court of the United States, and the judgment was reversed and mandate issued. On filing mandate, judgment of the circuit court reversed. PER CURIAM. The judgment of the court in this action, rendered March 11, 1913 (152 Wis. 654, 140 N. W. 296), affirming the judgment of the circuit court for Dane county, having been reversed by the Supreme Court of the United States upon writ of error (see 237 U. S. 220, 35 Sup. Ct. 560, 59 L. Ed. 926), and the mandate of said last-named court having been received and filed: Now, therefore, it is ordered and adjudged, pursuant to the command of said mandate, that the judgment of affirmance aforesaid rendered by this court be and the same is in all things vacated and set aside, and that the judgment of the said circuit court for Dane county be and the same is hereby in all things reversed, without costs, and that this cause be and the same is hereby remanded to the said circuit court, with directions to enter judgment therein adjudging that the order of the said Railroad Commission involved in this action was and is void, and setting aside and vacating the same. MARTIN v. CHICAGO, M. & ST. P. RY. CO. (Supreme Court of Wisconsin. March Appeal from Circuit Court, Mil14, 1916.) waukee County; W. J. Turner, Judge. Action by Anna Martin, administratrix of the estate of Jesse Martin, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed by divided court. This action was brought by the plaintiff as administratrix of the estate of Jesse Martin, deceased, to recover for the death of her husband, said Jesse Martin, who was killed in the yards of the defendant November 8, 1913. The deceased was night switchman, and shortly after arriving at the yards on the evening in question was run over and killed by a car that was "shunted" over a team track by other cars that were The complaint "kicked" through the yards. sets forth two causes of action. In one it was claimed that the plaintiff was entitled to the benefit of the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]). The two causes of action are based upon the negligence of The answer the employés of the defendant. puts in issue the allegations of the complaint, and further alleges that the deceased was killed because of his own carelessness and negligence. After the evidence was all in the court directed a verdict for the defendant. Judgment was entered accordingly in favor of the defendant, from which this appeal was taken. Glicksman, Gold & Corrigan, of Milwaukee (Henry Mahoney, of Milwaukee, of counsel), for appellant. C. H. Van Alstine, H. J. Killilea and Rodger M. Trump, all of Milwaukee, for respondent. KERWIN, J. (after stating the facts as above). In this case the judgment of the court below must stand, because the five sitting Justices are divided on the question as to whether the judgment should be affirmed or reversed. Three of the Justices, Chief Justice WINSLOW, and Justices VINJE and ROSENBERRY, favor affirmance, while Justice SIEBECKER and the writer favor reversal. Judgment is affirmed. MARSHALL and TIMLIN, JJ., took no part. END OF CASES IN VOL. 156 |