Pacific Heater Manufacturing Co. v. Southern Pacific Co.

CONREY, P. J.

This action was brought by plaintiff to recover the sum of $927.50 for alleged damages to a shipment of fifty-three gas furnaces or heaters which were transported over the lines of the defendant company from the city of Los Angeles, California, to Portland, Oregon, consigned to the Portland Gas

&

Coke Company, at Portland, and there tendered to the consignee. The consignee refused to accept them, it being claimed by the consignee, and now claimed by the plaintiff, that by reason of damages "to the property during transportation its value was totally destroyed. Pursuant to the verdict of a jury, plaintiff recovered judgment for the entire amount of the demand. From that judgment the defendant appeals.

Appellant contends that it was the duty of the consignee, and upon failure of the consignee, then the duty of the plaintiff to have received said furnaces upon tender of delivery by the defendant, in order that the damage to the furnaces might be minimized and not unnecessarily enhanced ; and that the damages awarded are excessive. [1] The rule governing the duty of a shipper or consignee, where goods are injured in course of shipment, is stated as follows: “As a general rule, the doctrine that where goods are injured the owner may abandon them as for a total loss and sue for their value does not apply to contracts of affreightment. The fact, therefore, that the goods are injured upon the journey, through causes for which the carrier is responsible, does not of itself justify the consignee in refusing to receive them, but he must accept them and hold the carrier responsible for the injury. Where, however, the damage is such that the entire value of the goods is destroyed, the consignee may refuse to receive them and sue the carrier for their value.” (Hutchinson on Carriers, 3d ed., sec. 1365.) The consignee having refused to receive

[750]

these goods, defendant tendered them to the plaintiff and also made an effort to induce the plaintiff to repair the furnaces to put them in shape for the market. This the plaintiff declined to do. There is evidence tending to show that repairs might have been made which would have resulted in reducing the amount of the damages incurred. [2] On the other hand, according to the testimony of a competent witness, the furnaces,. in their condition as received at Portland, had no market value whatever; the repairs necessary to put them in condition to be sold would not have restored more than fifty per cent of their market value, and the cost of- the repairs would have been more than that fifty per cent. If the jury believed this evidence, as it was entitled to do, the conclusion must have resulted that the value of the property was totally destroyed; and since the amount of the judgment does not exceed the original market value of the property, appellant’s claim that the damages awarded are excessive should not be sustained.