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Dixon v. Southern Pacific Co.

December 31, 1918


Appeal from Second Judicial District Court, Washoe County; Mark R. Averill, Judge.

Brown & Belford, for Appellant.

A. E. Painter (J. B. Dixon, in pro. per.), for Respondent.

By the Court, Coleman, J.:

Respondent brought suit to recover damages alleged to have been sustained by the conversion by appellant

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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 1/2 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.

1. 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

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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.

2. 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

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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.”

3. 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

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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.

4. 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

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cited, 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.

5. 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 ...

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