J. B. DIXON, Respondent, v. SOUTHERN PACIFIC COMPANY (a Corporation), Appellant
Dixon v. Southern Pacific Co.
J. B. DIXON, Respondent, v. SOUTHERN PACIFIC COMPANY (a Corporation), Appellant.
[No. 2303]
J. B. DIXON, Respondent, v. SOUTHERN PACIFIC COMPANY (a Corporation), Appellant.
[172 Pac. 368; 177 Pac. 14]
1. TROVER AND CONVERSION-RECEPTION EROM WRONGEUL POSSESSOR.
As a general rule, it is a conversion to receive property from one wrongfully in possession, and thereafter to exercise control of it against the wish of the person entitled.
2. Carriers — Liability oe Carrier — Conversion.
The carrying of goods by a carrier from terminus to terminus on the requirement of a person unlawfully in possession is not a conversion, though if the true owner intervenes before the goods are delivered, and demands them, and the carrier refuses to deliver them, it is liable in trover.
3. Carriers — Transporting Ore — Notice oe Title.
Where the owner of ore on a mine dump, anticipating that E., who was operating the mine, would endeavor to ship it, notified the railroad, and forbade the transportation of such ore, and the railroad, when E. offered the ore for transportation, required him to make affidavit that such ore was his, which he did, and the railroad transported the ore for him, such railroad was liable to the owner of the ore as for a conversion, being charged with constructive notice of the owner’s right.
4. Trover and Conversion — Damages—Value oe Property.
The measure of damages for a conversion of property is its value at the time of the conversion, with legal interest from tlie date to that of rendering judgment, though special and ’ exemplary damages may be allowed in certain eases.
5. Evidence — Judicial Notice — Extraction oe Mineral erom Ore.
Courts cannot take judicial notice of what percentage of mineral can be extracted from a particular class of ore, which is a matter of proof in each particular case, where material.
ON REHEARING
]. Carriers — Duty as to Delivery — Conflicting Claims to Property.
It is the duty of a carrier on demand to deliver property in its possession to the true owner, whether it has been received from him or from another as consignor, notwithstanding that, in case of conflicting claims, a hardship will be imposed upon it in determining right of possession.
2. Carriers — Conflicting Claims to Property — Notice of Ownership — Waiver.
Where an owner of ore notified defendant carrier that lie owned it, but that he believed a third person intended to steal and ship it as owner, the carrier by avowing its intention to ship the ore if tendered to it waived its right to insist that the description of the ore was insufficient to give it notice of . plaintiff’s title in a subsequent suit by the owner against the. carrier to recover for the conversion of the ore.
ON COSTS
3. Costs — Appeal—Modification of Judgment — Statute.
Under Rev. Laws, 5381, where, in opinion on rehearing, the supreme court made no order as to costs, since defendant appellant had obtained relief originally by reduction of judgment against it, judgment having been reversed unless plaintiff agreed to reduction, appellant should recover its costs on original appeal.
2. Costs — Rei-ieaeing—Statute.
Where both parties petitioned for rehearing, and neither obtained any relief as a consequence, each party, under Rev. Laws, 5381, should pay his own costs incurred on rehearing.
Appeal from Second Judicial District Court, Washoe County; Mark R. Averill, Judge.
Suit by J. B. Dixon against the Southern Pacific Company, a corporation. From a judgment for plaintiff, defendant appeals.
Reversed, and cause remanded for new trial, unless plaintiff agrees to a reduction of judgment, in which event, as modified, it will be affirmed.
After reversal on rehearing from a ruling of the clerk of the supreme court, on the cost bill filed by defendant, said defendant appeals.
Ruling ordered modified, and, as modified, affirmed.
Brown & Belford, for Appellant:
As a common carrier, the defendant cannot be held guilty of converting property delivered. for shipment, and by it transported in the ordinary course of its business as such common carrier. “A common carrier is bound to accept all goods offered within the course of his employment and is liable to an action in case of refusal.” York Co. v. Central Co., 3 Wall. 107; Jackson A. I. Works v. Hurlbut, 158 N. Y. 34; 6 Cyc. 365; Michie on Carriers, sec. 333; Hutchinson on Carriers, 3d ed., sec. 47.
In the State of Nevada the common-law duty to receive and carry all goods offered for shipment, under penalty of liability for damages, is imposed upon railroads by statute. Rev. Laws, 3558, 3559. Both at common law and under the statute, a railroad company refuses at its peril to transport any goods offered it for shipment, its reasonable regulations being complied with.
It is the rule of law that where one is in possession of personal property, such possession is prima facie evidence of ownership in him. Nanson v. Jacobs, 12 Mo. App. 125; Smith v. Colby, 67 Me. 169; Gurley v. Arm-stead, 148 Mass. 267; Saunders v. Greever, 85 Va. 252. A common carrier is entitled to rely upon the prima facie evidence of ownership indicated by the possession of one who tenders him goods for shipment. The ordinary rule as to the liability of one who exercises acts of dominion over the property of another without that other’s consent finds an exception in the case of common carriers. Gurley v. Armstead, supra; Robert G. White Co. v. Railroad, 87 Mo. App. 330; Fowler v. Hol-lins, 7 Q. B., 35 Victoria, 616; Burditt v. Hunt, 25 Me. 419; Shellnut v. Central Ry. Co., 18 L. R. A. 494; 6 Cyc. 472.
It is only where goods are in the possession of the carrier, and the true owner, who is not the shipper or the consignee, demands possession, that the railroad company must satisfy itself as to the title, and deliver the goods to the party to whom they belong. In the absence of such demand, the carrier will be protected in the delivery of the goods to the consignee. Robert G. White Co. v. Railroad, supra.
There was no evidence which justified the lower court in finding mere nominal damages. Courts are supposed to act on evidence, and not on mere assumption. No judge can look at a sample of ore and say that he has judicial knowledge that the ore when smelted or otherwise treated, will yield any certain per cent of the theoretical value. Plaintiff failed to meet the burden imposed by law upon him of showing the value of the property alleged to have been taken. Only certain elements of value were shown. There was, therefore, no basis for an approximation of damages. Richardson v. National O. P. & R. Co., 34 Nev. 453.
The damages to which plaintiff would be entitled, if he is entitled to any damages, would be the market value of the property at the time and place of the alleged conversion, with damages for the detention of that value, which is legal interest from the time of the conversion to the date of the judgment. Sutherland on Damages, 4th ed., sec. 1109; Carlyon v. Lannan, 4 Nev. 156; Boy-lan v. Huguet, 8 Nev. 345; Menzies v. Kennedy, 9 Nev. 152; Newman v. Kane, 9 Nev. 234; Bercich v. Marye, 9 Nev. 312; Ward v. Carson River Wood Co., 13 Nev. 44; Robinson M. Co. v. Riepe, 37 Nev. 27; Torp v. Clemons, 37 Nev. 474.
A. E. Painter (/. B. Dixon, in pro. per.), for Respondent:
The authorities are numerous and practically unanimous that the owner of personal property of which he is deprived by the. acts of others is entitled to be reimbursed for all loss sustained by him by reason of the taking or conversion, and it is immaterial whether or not the defendants acted in bad faith or intended to injure the plaintiff, except as to the amount of damages to be allowed. An illegal taking is all that is necessary to show. 4 Sutherland on Damages, sec. 1108; Swim v. Wilson, 27 Pac. 33; Kimball v. Billings, 55 Me. 147; Koch v. Branch, 44 Mo. 543; Hoffman v. Carow, 22 Wend. 285; Bercich v. Marye, 9 Nev. 312.
Trover will lie against a carrier for a misdelivery or an appropriation of the property to its own use, or for any act antagonistic to and inconsistent with plaintiff’s claim of right. Blowers v. Canadian Pacific Ry. Co., 155 Fed. 935; Central Ry. Co. v. Lampley, 76 Ala. 357; Illinois Central Ry. Co. v. Parks, 54 Ill. 294. As the actual owner may recover the property from the carrier, it is excused for failure to deliver to the consignee by delivering the property to the actual owner. 1 Michie on Carriers, 547; Raleigh R. Co. v. Lowe, 101 Ga. 320; National Bank v. Railroad, 44 Minn. 224; King v. Richards, 6 Whart. 418.
Where a carrier wrongfully delivers goods to one other than the owner, after having been expressly directed by the owner not to deliver them, the carrier is guilty of conversion, for which the owner can recover without further demand. Lister v. Railroad, 36 N. Y. Supp. 907; 6 Cyc. 472.
It is held by almost all courts that where values are fluctuating, or where there are special circumstances, such rule will be adopted as will place the plaintiff in as favorable a position as he would have occupied if his property had not been taken from him against his will. In most of the cases this has been held to be the highest value between conversion and trial, a few cases holding that the value at the time of the trial is the proper rule. O’Meara v. North American M. Co., 2 Nev. 112; 4 Sutherland on Damages, pp. 4239, 4240, 4250; Douglas v. Kraft, 9 Cal. 562; Dorsey v. Manlove, 14 Cal. 555; Burton v. Dutcher, 34 N. Y. 493; Burks v. Hubbard, 69 Ala. 379; Whitfield v. Whitfield, 40 Miss. 352; Gregg v. Fitzhugh, 36 Tex. 127; Smith v. Savin, 141 N. Y. 315.
In addition to the highest value between conversion and trial, respondent ought in reality to have been allowed punitive damages, so that the amount allowed was too small rather than too large. If the amount allowefi is not too large, it is immaterial if the trial judge gave the wrong reason for his decision.
By the Court,
Coleman, J.:
Respondent brought suit to recover damages alleged to have been sustained by the conversion by appellant of certain ore which respondent claimed to own. The undisputed facts are that in July, 1914, appellant was engaged in operating a line of railroad in the State of Nevada; that the respondent owned certain ore which he had purchased at an execution sale, wherein it and other personal property was sold under a judgment against the Nevada United Mines Company; that one Galvin was the purchaser at an execution sale of the mining claim upon which said ore was situated, and thereafter entered into an agreement with one Ephraim, pursuant to which Ephraim mined and extracted therefrom certain ore; that in the month of June, 1914, respondent, anticipating that the said Ephraim intended to ship respondent's ore, notified the railroad company that he owned some ore upon the dump of the mine in question, and that he anticipated that Ephraim would endeavor to ship it, and forbade the transportation thereof by the railway company; that about ten days or two weeks after said notice had been given, the said Ephraim offered to the appellant for transportation about 26-?,- tons of ore; that thereupon the appellant required that the said Ephraim make affidavit that he owned the ore so tendered for transportation, and upon his doing so the ore was received and transported to the Western Ore Purchasing Company at Hazen, Nevada, which was engaged in the business of sampling and buying ores. The question of the ownership of the ore so shipped was litigated in the trial court, which found that the respondent owned fourteen tons thereof, and the finding on that point is not questioned here. The court found that said fourteen tons of ore was converted by appellant, that it was valued at $2,205.70, that $6 a ton should be deducted as smelting charges, and gave judgment against appellant for $2,121.70. A motion for a new trial having been denied, an appeal was taken.
It is urged as a ground for reversal that under the circumstances of this case- appellant could not have been guilty of conversion. As a general rule, it constitutes conversion to receive property from one wrongfully in possession of it and thereafter exercise dominion or control over it against the wish of the person rightfully entitled to its possession. 38 Cyc. 2024. But appellant contends that since a common carrier must accept for transportation property offered to it or be liable in damages for refusal to do so (citing Hutchinson on Carriers, 3d Ed., sec. 47; Michie on Carriers, sec. 333; Revised Laws of Nevada, 3558, 3559), the facts of this case constitute an exception to the general rule, and that the rule which controls is that laid down in Fowler v. Hollins, 7 Q. B. 632, where it is said:
"The trade of a common carrier is one of the few occupations which the person carrying it on is bound by law to exercise upon the requirement of a person bringing him goods to be carried, and it would be unjust that he should be bound by law to do an act which the law, in the event of the person bringing the goods not being the true owner, declared to be an unlawful act. It has therefore been deemed that the carrying of goods by a carrier from terminus to terminus, upon the requirement of a person unlawfully in possession of them, is not conversion, although, if the true owner intervenes before the goods be delivered and demands them, and the carrier refuses to deliver them, he is liable in an action of trover."
In support of this doctrine, our attention is called to Gurley v. Armstead, 148 Mass. 267, 19 N. E. 389, 2 L. R. A. 80, 12 Am. St. Rep. 555; White Live Stock Co. v. Railway Co., 87 Mo. App. 330; Nanson v. Jacobs, 93 Mo. 331, 6 S. W. 246, 3 Am. St. Rep. 531; Burditt v. Hunt, 25 Me. 419, 43 Am. Dec. 289; Shellnut v. Cent. Ry. Co., 131 Ga. 404, 62 S. E. 294, 18 L. R. A. (N. S.) 494.
We approve of the rule just mentioned, but it is based upon a reason which does not exist in the case at bar. The reason for the rule is that a common carrier cannot be expected to inquire into the right of a person in possession of property to ship it; but it will be observed that as soon as the carrier has notice from the person rightfully entitled to the possession of the property to deliver the same to him, failure to do so will make the carrier liable.
Counsel for appellant say in their brief:
"It is only where the goods are in the possession of the carrier, and the true owner, who is not the shipper or the consignee, comes and demands possession, that the railroad company must satisfy itself as to the title, and deliver the goods to the party to whom they belong."
We find nothing in the authorities or in reason to justify this contention. A carrier can be guilty of conversion by wrongfully taking into its possession property and exercising dominion over it, as well as by wrongfully exercising dominion over it after it comes into its possession. Let us illustrate: Suppose that while Jones, a bank clerk, is taking a sack of gold from one bank to another, and just as he gets opposite the express company's office the gold is snatched from him by a thief, who carries it into the express office and offers it to the company for transportation, but, before the company receives it, Jones acquaints the company with the facts and notifies it not to receive the gold. Could it be said that in case the gold is accepted, transported to California, and there delivered to the thief, the company would not be liable for conversion simply because it did not have possession of the gold at the time it was warned of the facts? We think not. Yet, if the contention of counsel is sound, the express company would not be liable because it was notified of the facts a moment before it received possession of the gold, instead of after its receipt thereof.
We do not wish to be understood as holding that notice to a common carrier by the owner of property that he expected some one to tender for transportation property not capable of accurate description, belonging to him, and warning such carrier not to accept it, would in every instance make such carrier liable should it accept and transport the property and thereafter deliver it to one not the owner. But in the case at bar the carrier had notice that a particular person, one Ephraim, would offer the ore for transportation; and when it was offered, the company, having in mind the notice received by it, required of Ephraim an affidavit of ownership. Since the notice which appellant received was sufficient to warrant it in taking the precaution of requiring an affidavit from Ephraim, we conclude that appellant was brought within the rule asserted in Lang Syne M. Co. v. Ross, 20 Nev. 127, 18 Pac. 358, 19 Am. St. Rep. 337, as follows :
"Whenever a party has information or knowledge of certain extraneous facts which of themselves do not amount to, nor tend to show, an actual notice, but which are sufficient to put a reasonably prudent man upon an inquiry respecting a conflicting interest, claim, or right, and the circumstances are such that the inquiry, if made and followed up with reasonable care and diligence, would lead to the discovery of the truth — to a knowledge of the interest, claim, or right which really exists — then the party is absolutely charged with a constructive notice of such interest, claim, or right."
See, also, Rollo v. Nelson, 34 Utah, 116, 96 Pac. 263, 26 L. R. A. (N. S.) 315; 29 Cyc. 1114.
It is also contended that the court erred in its finding as to the amount of damages sustained by respondent. Appellant offered evidence to the effect that the ore purchasing company paid Ephraim the sum of $544.92 for the two shipments of ore, which was based upon the value of the ore at the time of' purchase, while the court in making its findings and rendering judgment based its conclusion upon the highest market price of the metals contained in the ore between the date of receipt of the ore and the date of trial. That this was clearly error is not debatable. This court has, in several instances, had occasion to lay down the rule which should control our courts in fixing the damage which a party sustains under circumstances like those existing in the case at bar. In Torp v. Clemons, 37 Nev. 474-485, 142 Pac. 1115, where the prior decisions of this court on the point were citéd, it was held that the measure of damage for wrongful conversion of property is the value of the property at the time of conversion, with legal interest from the date of conversion to the date of rendering judgment. It is contended that some other courts have laid down a different rule, and one which we should follow. Suffice it to say that this court, in Boylan v. Huguet, 8 Nev. 345, considered at some length this question, adverted to the decisions taking the contrary view and adopted the rule which has ever since been adhered to,- and we see no reason for repudiating it now. True, as' said in Ward v. Carson River Wood Co., 13 Nev. 62, special and exemplary damages may be allowed in certain cases, but the trial court did not find that respondent was entitled to recover special or exemplary damages.
We deem it proper to say, also, that the learned trial judge, in taking a 90-per-cent extraction as a basis for figuring the value of the ore in question, merely assumed that a 90-per-cent extraction could be obtained, as shown by his opinion, and did not base his conclusion upon any evidence introduced at the trial. Courts cannot take judicial notice of what percentage of mineral can be extracted from a particular class of ore; it is a matter of proof in each particular case. In Richardson v. National Ore P. & R. Co., 34 Nev. 455, 124 Pac. 779, it was said:
"Courts in this state will take judicial knowlédge of the fact that processes of crushing, amalgamating, and cyaniding ores will not effect an extraction of 100 per cent of the metallic content. What would be a reasonable per cent of extraction would depend largely upon the process used and the character of the ore; but there is nothing in this case to show what ought to have been such extraction."
Counsel for appellant suggest in their brief that in case this court finds that appellant was guilty of conversion the judgment may be reduced to $287.28, with legal interest from the date of conversion, which it claims is based upon the highest selling price of the metallic contents of the ore during July, 1914. Since the evidence in this case is such that it is impossible for us to say for just what sum the judgment should be, it is ordered that the judgment of the district court be reversed and the cause remanded for a new trial, unless the respondent agrees, within ten days from the filing of the remittitur herein in the district court, in a written statement filed with the clerk of said court, to a reduction of the said judgment to the sum of $287.28, with legal interest as aforesaid; in which event the judgment as thus modified will be affirmed; appellant to recover its costs on appeal.