Assid v. Great Northern Railway Co.

Pobinson, J.

(specially concurring). This action was brought in justice court to recover from the defendant $200 for the loss of a peddler’s box and contents which he shipped over the line of the defendant from Devils Lake to Jamestown. In justice’s court and in the district court, judgment was given against the plaintiff, and he appeals to this court, making fifty-five assignments of error.

As the district court directed a verdict in favor of the defendant, the only question is on the sufficiency of the evidence to sustain the complaint. The complaint is that on April 11th at Devils Lake the plaintiff delivered the box and contents to the defendant, consigned to himself at Jamestown. “That defendant is indebted to and owes the plaintiff $200 damages for the loss and conversion and failure to return and safely ship said box of freight.” Now the evidence is clear and positive that in due course the defendant did safely carry the box and deliver it in good condition to its connecting line the Northern Pacific Pailway Company, at Leeds, North Dakota, and that was the proper point of delivery. Hence, under the complaint there was no ques" tion to submit to the jury, but in his brief counsel for plaintiff bases the claim on this statute [Comp. Laws, 1913] :

Section 6260: “If freight, addressed to a place beyond the usual route of the common carrier who first received it, is lost or injured, he must, within a reasonable time after demand, give satisfactory proof to the consignor that the loss or injury did not occur while it was in his charge, or he will be himself liable therefor.”

*276This statute is of a peual character. It must be strictly construed. A party who seeks to recover the penalty of the statute must plead and prove facts which entitle him to recover. This, the plaintiff has not done. The pleadings do not fairly present an issue under the statute.

Under date of July 8, 1916, defendant wrote plaintiff’s attorney a letter marked exhibit “4,” saying: “Our records show that we delivered the case to N. P. Railway Co., at Leeds, N. D., in good condition.” That letter should have been received by plaintiff’s attorney in one or two days after it was written. This action was commenced on July 12th, which was four days after the date of the letter. In his brief, counsel for plaintiff says: “The first intimation of any kind tending to show that the loss did not occur while the box was in defendant’s charge came with defendant’s letter” (exhibit 4) stating, under date of July 8th, “defendant’s records show we delivered this case to the N. P. Ry. Co., at Leeds, N. D., in good condition.” He adds: “This letter was not received by plaintiff’s attorney until after the summons had been prepared and just before it was issued.” Now the preparation of the summons is a matter of no consequence. It was a small matter, and the notice contained in that letter was sufficient. It was notice of a fact which counsel for plaintiff might well have anticipated and which he might have easily verified. With that notice in hand, there was no reasonable cause for commencing this action. In such cases the parties and their counsel are bound to act in a spirit of good faith and fairness. The statute does not impose on defendant the burden of proof. There was no issue of fact to submit to the jury.