Spokane Grain Co. v. Great Northern Express Co.

Citations

• 55 Wash. 545
• 104 P. 794
• 1909 Wash. LEXIS 797

Syllabus

<p>Pleading — Variance—Failure of Proof — Amendments. A verdict for plaintiff, in an action for the conversion of horses shipped by defendants’ road, cannot be sustained upon evidence of a breach, of defendants’ contract of carriage, as against a motion for nonsuit or judgment non obstante veredicto; as amendments to conform to proof do not permit allegation of one cause and proof of an entirely different cause.</p> <p>Carriers — Of Live Stock — Conversion—Breach of Contract— Evidence — Sufficiency. A carrier, removing from a car horses that had been burned and were suffering intensely, for the purpose of treatment and as an act of humanity, is not guilty of a conversion, although the removal was objected to by the shipper and there was conflict in the evidence as to whether they could have stood the balance of the trip.</p> <p>Trial — Directed Verdict — Province of Court and Jury. A verdict of dismissal non obstante veredicto may be granted where, under the facts, no possible recovery could be had.</p> <p>Carriers — Of Live Stock — Conversion—Breach of Contract— Variance. A verdict for plaintiff, in an action for conversion of horses, taken by defendant, a carrier, from the car during transportation, for the purpose of treatment for burns caused by a fire in the car, cannot be sustained on the theory of breach of the contract of carriage and negligence of the defendant in setting the fire, where the complaint was based solely upon the ground of conversion, the jury were instructed that it was immaterial whether the fire was negligently set by the plaintiff or defendant, and the evidence of negligence was admitted only upon the defendants’ counterclaim for charges in treating and caring for the horses.</p>