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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (April 17, 1911)
riCE so. TtATLY-CAPITAL OCRNAU. bAUEM. OREGOX, MOXDAT, APRIL 17. lqil. OREGOtl SUPREME COURT DECISIONS Fall Text Published by Courtesy of F. A. Tnrner, Reporter of the Supreme Court BjpmVs t. X. P. Itjr. Co, Multuonuih Co But j. John T. Brook9, respondent, v. Northern Pacific Railway Company, appellant Appeal from the circuit court for Multnomah county. Hon. W. N. Gatens, Judge. Argued and submitted March 22, 1911. Wm. A. Williams, tor respondent Omar C. Spencer, for appellant. Moore, J. Affirmed. This Is an action to recover dam ages for the delay occasioned by de fendant's failure promptly to trans port trunks and their contents. The complaint states In effect that de fendant Is a corporation engaged as a common carrier for hire between the places hereinafter named; that on or about April 8, 190S, plaintiff purchased from defendant a ticket entitling blm to a passage over its lines of railway from Forsythe, Montana, to Billings in that state, from whence he had a ticket over such line to Butte Montana; that on April 8, 1908, at Forsythe, he "paid to the defendant the necessary and proper charge required by defendant for transporting two sample trunks containing shoes and belonging to said plaintiff, and requested the agent or said defendant to check the said trunks containing said samples for transportation by next train from Forsythe, Montana, to Butte, Montana, but that said agent careless ly and negligently checked the said trunks for transportation to Bil lings;" and that during all the times lieretn mentioned plaintiff was a traveling salesman for the Brockton Co-operative Shoe company, Journey ing at his own expense and receiving as compensation a commission on his sales; that he arrived nt Butte on the morning of April 9, 1909, but In consequence of the defendant's negli gence In checking his trunks they did not reach that city until late in the day of April 11, 1908, and could not be used In his business until the following morning; that his employ ment required of him a solicitation of business from patrons by exhibiting samples of shoes which he carried In such trunks and by reason of their non-arrival at Butte for three days lie was deprived of their use for that period; that during that time he In curred expenses of board, lodging, te to the amount of $16 and his Bervlces were reasonably worth $20 a day. or $60; and that In conse quence of such negligence be bad been damaged to the extent of $76, for which sura Judgment was de manded. The answer admitted the Incorpor ation of the defendant and the busi ness In which It is engaged, but de nied all other averments of the com plaint. The cause was tried without a Jury and findings of fact and of law were made consistent with the averments of the complaint, except that plaintiff was deprived of the use of trunks and samples only two and a half days and bis expenses during that time were at the rate of $5 a day, and having rendered a Judgment ! against defendant for the sum of $62.50, it appeals. j Moore, J.: It is maintained that the complaint does not aver the giv ing of any notice to defendant's agent ' in Forsythe of the contents of the (trunks when they were delivered for transportation, and such being the case, the pleading does not state facts sufficient to constitute a cause of action and an error was commit ted In basing a Judgment thereon. It is not expressly alleged in the complaint that the baggage man was notified by plaintiff that the trunks contained shoes. The mere state ment In the pleading of "sample trunks" does not necessarily Imply that defendant's agent knew these receptacles contained anything more than plaintiff's personal baggage. Rossler v. Wabash R. Co., 91 S. W. 1018. It will be remembered that the term "sample trunks" as first used In the excerpt quoted Is qualified by the phrase "containing shoes," and as thereafter employed, the words "said' trunks" are limited by the designation "containing said sam ples." The sufficiency of the com plaint was not challenged by de murrer. Objections, however, were interposed to the admission of testi mony tending to show that when the trunks were checked defendant's agent was notified that they con tained shoes. When the averments of a complaint are tested by a de murrer, they are to be construed most strongly against the pleader, but on questions relating to the ad missibility of evidence, all intend ments are to be invoked In support of the allegations of the pleading. Cederson v. Or. Navigation Co., 38. Or. 343. Measured by this rule, though the averments of the com plaint respecting these facts are quite Informal, it is believed the pleading Is sufficient, as Its allega tions were not contested by a de murer. It was the duty of the rail way company promptly to transport the trunks and if its agents, with knowledge of 'their contents, checked them, the defendant is responsible for the delay. Oakes v. N. P. R. Co., 20 Or. 392; Wells v. Great Nor. R. Co., ' Pac. . The complaint In the absence of a demurrer, being adequate as to the averments of no tice of the contents of the trunks.no error was comlmtted in permitting plaintiff to testify that he told the defendant's agent the sample trunks were filled with shoes. The remaining question is the standard of Indemnity for the loss which plaintiff sustained. The measure of a passenger's damages for a carrier's delay in forwarding his trunks Is the value of the use of the property in the. meantime. Gulf, etc., R. Co. v. Vancil, 21 S. W. 303; Texas, etc. R. Co. v. Dauglas, 30 S. W. 487. The plaintiff's testimony is to the effect that without samples he could not secure orders and that during his stay In Butte competitors were In the field, at which time and place his average commission would have been $20.00 a day. The complaint alleges as special damages the expenses incurred by plaintiff on' accovunt of board and lodging for three days. He testified that he lived at Ocean Park, Wash ington, and that the delay postponed, to that extent his arrival home, and that while waiting for his trunks his expenses were $16.00. If he were at his domicile it Is possible that his living expenses might have been less than at a hotel, and as he was re quired to pay the cost of his meals at his residence it would seem that he Is entitled to recover the differ ence between such cost and the sum paid out at Butte as expenses. But however that may be, the difference is not disclosed by the testimony and as the court did not allow the sum demanded, we believe no prejudicial error was committed In awarding the $12. CO for that purpose. Other errors are assigned, but deeming them unimportant, the judgment is affirmed. o To Cure a Cold In One fray. Take Laxative Bromo Quinine Tab lets. Druggists refund money if It falls to cure. E. W. Grove's signa ture is on each box. 25c. Baker has started a whirlwind cam paign to raise $45,00 for a Y. M. C. A. building. STARTING THE RAGE FOR PRESIDENT LA FOLLETTE IS NAMED AS FIRST CHOICE OF PKOGRES. SIVES, WITH OUR JONATHAN BOURNE NAMED AS BEING GOOD PRESIDENTIAL TIMBER. exited nr.ua leased kibe Chicago, April 17. 'La Follette for president" Is the slogan of a Illinois branch of the National Pro gressive Republican League, which is being fathered by Alderman Merrl am. Others mentioned for endorsement by the league, in case La Folette finally proves to unavailable timber, are Senators Bourne; of Oregon; Cummins, of Iowa, and Brlstow, of Kansas. It Is reported that behind the movement is Charles R. Crane, who was appointed minister to China by President Taft, and was afterwards "turned down" because he "talked too much." Crane Is said to be will ing to spend big mpney to prevent Taft's renomlnatlon. THE OPEN FORUM The Capital Journal Invites Public Discussion in This Department Let Both Sides of AU Matters . Be Folly Brought Out It Is Not the Purpose of This Newspaper to do the Thinking for Its Readers. The fare from Portland to The Dalles has been cut by the steamer Teal to 50 cents. She makes three trips a week, while the regular line runs a daily boat, and charges $1.00. A hundred men quit work on the Medford hotel building Saturday, on account of the employment of non union labor. Culver Junction Is now on the rail road map, passenger trains , com mencing the run to that point Satur day. Nine steamships arrived In Port land Sunday one a 10,000-t"nner. The boss trout caught In an Ore gon stream this year was landed by Jack Sweasey, auditor of Walla Walla epunty, Wash., Sunday. It measured 24 Inches. Bedrock has been found on a new damsite for the Umatilla reservoir project, about a mile above the old site. Winona Park is the latest addition to Albany. . ... A Word for Mr. Larky. Ed. Journal: You have seevral correspondents who referred to Al derman snd School Director Lafky, but none have done the gentleman justice. I am a neighbor of his, and will say that be Is one of the hard est workers In the city. He Is putting in more time on our city and school district affairs than any man we ever elected. He has mastered all the de tails of the water problem. Mr. Lafky Is a gqod engineer and survey,., or, and has showed up the reports of the engineers, who appraised the iter company's plant, and he has found a number of mistakes and made corrections in their report. Mr. Lafky Is not a lawyer, but he knpws enough law to be able to show weak places in the ordinance that is before the city council to uuy the proper ty. He ha3 a great deal of experi ence In farm real estate, and In the hearing before the council has been beat able to show several weak places In the title I understand that some of the lawyers overlooked. Such a man, giving his time free gratis, is valuable to the city, not for what Is accomplished, so much as for block ing bad work by others, who are paid for their work. We will always be under great obligations to Mr. Lafky if half his abilities are not recog nized as they- should be. I see no talk about including him In the recall of the school board that Is threat ened. He is tpo careful a man to get caught. He has not accomplished much, on account of the stubborn ness of some of his associates on the council. THIRD WARD. THE TWO COUNTRIES CONTROL WORLD'S PEACE UNITED TIIESS LEASED WI1IK. New York, April 17. "The rela tions between Great Britain and the United States Is the real key to the peace of the world, ' Sir Joseph Ward, premier of New Zealand, wh Is en route to London to attend the Im perial conference and the coronation of King George, said today. o East Portland Is to have a grand spring Jubilee April 24, with all kinds of free amusements. OFFERING BIG PAY FOR SOLDIERS WEAKNESS OF THE MEXICAN GOVERNMENT IS SHOWN BY ITS CALLS FOR VOLUNTEERS, AND ITS PROMISES OF BIG PAY UNITED FBE8S LEASED WISE. Mexico City, April 17. Indications that the rebellion against the Diaz regime is grow.ng neyond the control of the government is seen here today in notices posted calling for volun teers. All men between the ages of 18 and 45 are called to the colors. They are offered the high pay (for Mexico) of 1 peso (50 cents) a day, besides clothing and equipment. - The call is prompted, It Is Bald, not alone by the activity of the rev olutionists near the American bor. der, but by the smaller, uprisings all through the country. The Doctor's Question MUCH SICKNESS DUE TO BOWEL DISORDERS. CAVALRY ARRlvpa Washinetnn .,.., the war department thlf?0" to and L of the First MT D rived at Douglas. ArUo., J?4 ir ceived today. Troops K and X A ,T same regiment are due th!J.fthe night . . " ore PorlrJauti and Children Tna Kind You Have Always Bought A doctor's first question when con sulted by a patient is, "Are your bowels regular?" He knows that 98 per cent of Illness is attended with Inactive bowels and torpid liver, and that this condition must be removed gently and thoroughly before health can be restored. Rexall Orderlies are a positive, pleasant and safe remedy for consti pation and bowel disorders in gen eral. We are so certain of their great curative value that we promise to return the purchaser's money In every case when they fall to produce entire satisfaction. Rexall Orderlies are eaten like candy, they act quietly, and have a soothing, strengthening, healing in fluence on the entire intestinal tract. They do not purge, gripe, cause nau sea, flatulence, excessive looseness, diarrhoea or other annoying effect. They are especially good for child ren, weak persons or old folks. Two sizes, 25c and 10c. Sold only at our store The Rexall Store. J. C. Perry's. Ret it T- o. . . otoue-g Ung g H I Salem Fence Works T J neauquaners for Woven Wlrs' u p "ire, O&fh J WIre' PonltrJr Noting, Bhll. I eles. MalthnM - . r uyuuj, f T B. and Ready Roofing. Screen Doors and A(Hqim tin.. . . . uuinvia ninaow i Screens. All at the lowest X prices. :: CHAS. D. MULLIGAN X 250 Court street. Phons m ' r f .....to-. - Ilk I 1 n -! " I I'V X MwifllftfiW... i II, " Vrt 1 Try a Journal Want Ad. Celebrated Lear Frnnrcr The Best Heater It will save you w-iey every day jot own It. I ell at d nstaP the bail, Let me give you figures. See Me About an Individual lighting plant for your home. The best thing Ii the market for cooking and lighting. A. L. Frasier Phone 1S5. 95 State 8tre! ra t ap n u n .II 1 1 ii M II f I II CI II II II !i 11 11 n it ttp tt rr Vjy IvfluPMnD55 NEW ADDITION Si f i 11 II n ti EI ri B- II U ri n n n ri n ii u n ii ti ii ii 1 1 ii n L JTVLL Open about April 24. The best yet. Sewer As v sessments Paid. Streets Graded. Cement Sidewalks Laid. 15-Minute Car Line. Lots from $300 to $475 on Easy Terms: $10.00 Down and$10.00 a Month. Beau tiful Building Sites, or Good Investments. This Tract is High and Dry. Building Restrictions, $1,200. South of State Street, between 22nd and 24th. Go out and see it. The Streets are being Graded now. THE OREGON REA .TY CO., MILLS & GRABENHORST, Are the Agents, 275 State Street " - i 1 1 il i ll i in 1 1 il il il 1 1 i im iiiii ii i mi in mi m mnnimiiiwnniimmni niiimmnmnium u,..., , in ' MMmii kiimihiimi i ii nit , in mm , nnmm iilini"r B H B B B B B B B B B B B B B n B II H II II II n ii ti i! ii ii a n ii 11 ii El a a ii 11 ii a n i H H II El El El El El tt El II II II !! a El i ! ri