McQueen v. Tyler

KNIGHT, J.

A jury returned a verdict for the sum of $5,500 in favor of plaintiffs McQueen and against the defend

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ant Everett A. Tyler individually and doing business under the name of Oneonta Transfer & Storage, in an action to recover damages for the loss of household goods. From the judgment entered on said verdict the defendant Tyler appeals.

The circumstances attending the loss of the goods and which gave rise to the litigation are these: The plaintiff H. H. McQueen, an engineer employed by the Shell Oil Company, was ordered transferred from Tracy to South Pasadena, and his employer made arrangements with the company operated by the defendant, which was licensed as a common carrier by the state Railroad Commission, to transport plaintiffs’ household goods to Pasadena. Accordingly on November 5, 1941, a moving van, operated by Lloyd Tyler and Willis Crossley, arrived at Tracy from Pasadena, and after having spent most of the day loading plaintiffs’ goods into the van, started back for Pasadena. En route, about midnight, at a point a few miles south of Madera, a collision occurred between the van and a produce truck owned by R. T. Ito Co. and driven by one Jack Ault. As the result of the collision the drivers of both trucks, Ault and Tyler, were killed; Crossley was severely

injured;

both trucks caught fire and burned, and all of plaintiffs’ household goods were completely destroyed by the fire. Two suits arose out of the collision. One was brought by the appellant Tyler against Ito for damages for loss of equipment, and the other was brought by the McQueens against appellant and Ito for the loss of their goods, which they alleged were of the value of $7,077.28. In the latter action the appellant Tyler filed a cross complaint against Ito to offset any judgment the McQueens might obtain against him, and in his answer to plaintiffs’ complaint he set up as a special defense a “freight bill,” claiming that by reason thereof the carrier’s liability for loss of goods was limited to 10c per pound per article lost. Appellant claimed, therefore, that the highest value that could be recovered for the loss of the goods was $1,000. The action brought by the McQueens against appellant and Ito, and the one brought by appellant against Ito, were consolidated for trial, and the action brought by the McQueens was submitted to the jury on two general and two special verdicts. On the issues raised by the McQueens’ complaint and the answers thereto the jury returned a general verdict in favor of the McQueens and against appellant and Ito separately for the sum of $5,500; and on the issues raised by the cross-complaint and the answer