Dye Produce Co. v. Davis , 202 Iowa 1008 ( 1925 )

The case is before us after further argument on resubmission, following the granting of a rehearing, which was petitioned for, upon different grounds, by both parties.

The action grows out of the alleged damage by freezing to a carload of fresh vegetables shipped from Los Angeles to Des Moines in December, 1919. This was during the period of Federal control of the railroads. The petition was entitled merely as against the director general of railroads, by name and title. It was alleged in the petition that the defendant, the director general, was, at the time of the shipment, operating connecting lines of railway from Los Angeles to Des Moines, consisting of the Atchison, Topeka Santa Fe Railway Company's lines and the Chicago Great Western Railroad Company's lines, over which the shipment was transported on a through bill of lading. It was further alleged that, when the shipment was received by the defendant at Los Angeles, it was not frozen or damaged by freezing, and when delivered in Des Moines, was so damaged, and that this was occasioned by the negligence of the defendant. The original notice was served on the agent of the Chicago Great Western Railroad Company in Des Moines. The answer was a general denial.

The shipment originated on the line of the Atchison Company at Los Angeles, and was transported over that line to Kansas City, where it was transferred to the line of the Great Western Company, and carried over the lines of the latter company to its destination at Des Moines. The case was submitted to the jury only upon the question of liability of the director general, operating the lines of the Great Western.

I. It appears that the court below was of the opinion, and so announced, that there was no competent evidence to show that, when the goods were delivered to the carrier at Los Angeles, they were in good condition and 1. ORIGINAL unfrozen, but, nevertheless, submitted to the NOTICE: jury the question whether the shipment was personal damaged after it came upon the lines of the service: Great Western. It is plain that the effect of director this ruling and action of the court was merely general of to deny a recovery against the director general railroads. as the representative of the Atchison Company.

Whatever may have been the reason of the lower court for holding that there was no liability shown on the part of the director general as the representative of the Atchison Company, its action in refusing to submit the question of such liability to the jury was unquestionably right. In Davis v. Donovan,265 U.S. 257 (68 L. Ed. 1008), the Supreme Court of the United States settled the question involved, upon which there had been some difference of opinion among the courts. There the circuit court of appeals had said:

"The sole point is that the outside litigant, such as this libelant, need look only to the director general as the party to respond for damage caused by negligence on the part of any of the railroads which he was operating pursuant to the Federal control statutes."

Speaking to this point, the Supreme Court said:

"We cannot accept the conclusion reached by the court below. During the year 1919, the United States were in possession and complete control, by the director general, of the important railroad systems throughout the country. Northern P.R. Co. v.North Dakota, 250 U.S. 135. As the representative of the United States, he was subject to be sued for the purposes, to the extent, and under the conditions prescribed by statute and orders issued thereunder, — and not otherwise. DuPont De Nemours Co.v. Davis, 264 U.S. 456."

After setting out the substance of the pertinent portion of the Federal Control Act and of General Order 50-A of the director general, the court continued:

"The effect of § 10 and General Order 50-A was discussed inMissouri P.R. Co. v. Ault, 256 U.S. 554, 560; and it was there pointed out that while the transportation systems were controlled and administered by the United States, they were treated as separate entities, `regarded much as ships are regarded in admiralty,' and `dealt with as active, responsible parties, answerable for their own wrongs.' As well pointed out inManbar Coal Co. v. Davis, Circuit Court of Appeals, Fourth Circuit, 297 Fed. 24, no one was given the right to sue the director general as operator of all railroads, but his liability was carefully limited to such as would have been incurred by some particular carrier if there had been no Federal control."

See, also, Granquist v. Duluth, M. N.R. Co., 155 Minn. 217 (193 N.W. 126), and Farr v. St. Louis S.W.R. Co., 154 Ark. 585 (243 S.W. 800).

We are of the opinion that the director general was brought into court and was in court only as the representative of the government, in control and management of the railway company upon whose agent notice was served, the Great Western, and that this is true, notwithstanding the allegations of the petition that he was in control of both railways, and the case was entitled against him by name and title only, and that he answered as the "defendant." Service, before Federal control, upon an agent of the Great Western Company would not have brought the Atchison Company into court. Under General Order 50-A, service of process might be made upon officials operating a railroad for the director general, as formerly permitted in actions against the road. As said in the cited case, the director general, as the representative of the government, can be sued to the extent and under the conditions prescribed by statute and orders issued thereunder, and not otherwise.

The appellant is understood to insist, however, that there was service on the Atchison Company, and that, therefore, the director general, in his capacity as a representative of the government in control of the Atchison, was in 2. ORIGINAL court. This contention is bottomed upon the NOTICE: proposition that the delivering carrier is the personal agent of the initial carrier in respect to a service: through shipment, and that the shipment in service question was so connected with this agency that on agent. service upon the delivering carrier would be service upon the initial carrier, under Section 3529, Code Supplement, 1913 (Section 11072, Code of 1924). The argument is that Federal statutes make the initial carrier in a through interstate shipment liable for any loss or damage caused by any carrier over whose lines it may pass (8 Compiled Statutes, Section 8604-a), and that decisions of the United States Supreme Court (notably Missouri,K. T.R. Co. v. Ward, 244 U.S. 383 [61 L. Ed. 1213]) hold that the connecting lines are, in effect, mere agents whose duty it is to forward the goods under the contract made with their principal, the initial carrier. The precise question has been decided against the contention of appellant in St. Louis S.W.R.Co. v. Alexander, 227 U.S. 218 (57 L. Ed. 486), and in Basham'sAdmr. v. Missouri Pac. R. Co., 201 Ky. 807 (258 S.W. 690). See, also, Jones v. Illinois Cent. R. Co., 188 Iowa 850.

In this view of the case, there was no error in refusing to submit to the jury the question of the liability of the director general, as the representative of the Atchison Company, for damage to the shipment. In that respect, a correct result was reached, and the ground upon which the lower court based its conclusion, inasmuch as the case against him as the representative of the Great Western Company was submitted to the jury, is immaterial. The plaintiff, in any event, secured all it could rightly claim at this point, — that is, the submission to the jury of its claim against the director general, as the representative of the Great Western; and it cannot be heard to complain of the mere ground of the ruling.

II. After a verdict for the defendant on the case as submitted to the jury, and judgment thereon, the plaintiff, without filing a new petition, caused notice to be served on an alleged agent of the Atchison Company, as agent of the director 3. ORIGINAL general. The latter made a special appearance, NOTICE: in response to this notice, and moved to dismiss petition: because no petition was on file. This motion was failure sustained. The ruling was proper. We know of no to file: statute or recognized procedure — and none is dismissal. pointed out — that would permit the reopening of a case that has been tried and gone to judgment, by the service of an original notice upon a new party, and the trying of a new case on the pleadings on file in the case that had been disposed of. There was no petition on file. Section 3515, Code of 1897 (Section 11057, Code of 1924).

This belated attempt to bring the director general, as the representative of the Atchison Company, into the case is quite inconsistent with appellant's contention that he was always in the case in that capacity, and that the court erred in not submitting to the jury the question of his liability, as the representative of that company. If the director general, as the initial carrier, was in court, there was an adjudication that he was not liable in that capacity, and if the adjudication was erroneous, the error could only be corrected on appeal. It could only be upon the theory that he was not in court as the initial carrier, and there was no adjudication upon his liability, as such, that he could thereafter be required to meet the claim in this or a new action. Without saying that this situation would be controlling upon the original question, it is a very strong circumstance tending to show that plaintiff did not regard the judgment as an adjudication of such liability.

III. Appellant complains that the court below, in stating the issues, did not state that the plaintiff alleged that the shipment was unfrozen when received for transportation at Los Angeles. The court instructed, in substance, 4. TRIAL: that the plaintiff's claim was that the shipment instruc- was damaged by the failure of the Great Western tions: Company to perform its legal duty as a common statement of carrier while the goods were being transported issues: from Kansas City to Des Moines. We think there failure to was a sufficient statement of the issues, cover especially in the absence of a request for allegation. further instructions.

IV. Complaint is made that the court in its instructions required of the defendant the exercise of only ordinary care and diligence for the protection of the shipment while in his possession.

As to most commodities intrusted to a common carrier for transportation, the general rule at common law is that the carrier is an insurer against all risks incident to the transportation, save such as result from the act 5. CARRIERS: of God or of the public enemy. But where the carriage of goods are of a perishable character, and their goods: destruction or injury is due to their inherent non-insurer qualities, the carrier is not an insurer against of loss from such cause, but is only required to perishable exercise reasonable care and diligence to goods. protect them from injury while in its custody, and is liable for only such deterioration or loss as is attributable to its own negligence. Gilbert Bros. v. Chicago,R.I. P.R. Co., 156 Iowa 440; Brandeis v. Chicago, B. Q.R. Co., 164 Iowa 702. See, also, 10 Corpus Juris 121, 122, and cases there cited in support of the text.

This rule has frequently been applied where the shipment was susceptible to injury by freezing, and was so injured or destroyed. Michellod v. Oregon-Washington R. N. Co., 86 Or. 329 (168 P. 620); Schwartz Co. v. Erie R. Co., 128 Ky. 22 (106 S.W. 1188, 15 L.R.A. [N.S.] 801); Fort v. Denver R.G.R.Co., 69 Colo. 441 (195 P. 109); Swetland v. Boston A.R. Co.,102 Mass. 276; Standard Pickle Co. v. Pere Marquette R. Co.,222 Mich. 639 (193 N.W. 300); Leypoldt Pennington Co. v. Davis,112 Neb. 350 (199 N.W. 463).

The plaintiff pleaded no provisions of the shipping contract or bill of lading changing the common-law liability of the defendant.

The vegetables in question were of a perishable nature, and, from their character, subject to injury by freezing. The defendant was not an insurer against injury from such cause, but was only liable for such damage as was occasioned by want of reasonable care and diligence. There was no error in the instructions in this respect.

V. The court instructed that the burden was upon the plaintiff to establish negligence on the part of the Great Western Company substantially as alleged in the petition.

The Great Western Company was not a party, and the instruction failed to distinguish between it and the director general, as the representative of the government in control and operation of its railroad, who was the party defendant. This 6. CARRIERS: misstatement was, perhaps, not prejudicial, in carriage view of the whole record. The instruction was, of goods: however, clearly erroneous, in that it put upon presumption the plaintiff the burden of establishing from good particular acts of negligence on the part of the and bad defendant. The rule is firmly established that delivery. the shipper makes out a prima-facie case where he establishes the receipt of the goods by the carrier in good condition and the delivery at destination in a damaged condition; and that the burden is upon the carrier to establish facts which will relieve it from liability, such as that the damage resulted from the act of God or of the public enemy, or was occasioned by the perishable character of the shipment or its inherent susceptibility to injury from natural causes, and without negligence on the part of the carrier.

In Swiney v. American Exp. Co., 144 Iowa 342, we said:

"This feature of the rule may be stated as follows: That while a carrier, whether negligent or otherwise, is generally liable as an insurer for loss and damage occurring to goods while in its hands for transportation, it is not liable, in the absence of negligence on its part, for any loss or damage caused by or resulting from the perishability or inherent weakness or vice in the subject of shipment. For instance, if fruit which is carried with due speed and proper care decays, or if the shipment be of live stock, and it die of disease or inherent weakness, or become sick without fault of the carrier, or receive injury through its own vicious propensities, in such case the law very properly places the loss upon the owner, and not upon the carrier. Blowerv. Railroad Co., L.R. 7 C.P. 662; Kinnick v. Railroad Co.,69 Iowa 665; Betts v. Railroad Co., 92 Iowa 343. But this principle is not to be so extended as to relieve the carrier from the duty to take notice of the ordinary weakness, character, and propensities of domestic animals, and to make such provision against loss or injury therefrom as may reasonably be done in furnishing the means of transportation and providing for the protection of the property during transit. Kinnick v. RailroadCo., supra; Betts v. Railroad, supra. It logically follows from these rules, and from the fact that ordinarily a carrier alone has knowledge of the manner in which the shipment has been forwarded and cared for, that, where property, whether dead freight or live stock, is found to have suffered loss or damage in transportation, especially where the shipment is not accompanied by the shipper, or a caretaker in his service, the burden is upon such carrier to show facts which relieve it from liability."

See, also, Owens Bros. v. Chicago, R.I. P.R. Co., 139 Iowa 538; Glassman v. Chicago, R.I. P.R. Co., 166 Iowa 254; Carr v.Chicago, R.I. P.R. Co., 173 Iowa 444; Erisman v. Chicago, B. Q.R. Co., 180 Iowa 759; Buck v. American R. Exp. Co., 195 Iowa 1024.

It has been held, where an animal was being transported, and was found dead at destination, that the plaintiff must further show that death was due to human agency. Nugent v. Chicago N.W.R. Co., 183 Iowa 1073. Human agency is as present in a failure to take required precautions as in an affirmative act. The injury here complained of was shown to be of a character and from a cause that, owing to the perishable nature of the shipment, it was the duty of the carrier to have exercised ordinary care and diligence to guard against. Beard Sons v.Illinois Cent. R. Co., 79 Iowa 518; Taft Co. v. American Exp.Co., 133 Iowa 522; Colsch v. Chicago, M. St. P.R. Co., 149 Iowa 176; Buck v. American R. Exp. Co., supra.

VI. While there was error in placing upon plaintiff a greater burden of proof than it was required, under the law, to carry, this will not entitle it to a reversal if, upon the record made, it must be said that it was not, in any event, 7. APPEAL AND entitled to a verdict. If, upon the evidence, a ERROR: verdict for the plaintiff could not be harmless sustained, plaintiff could not be prejudiced by error: a verdict against it rendered under an erroneous non-right of instruction. Newell Co. v. Martin Wagner, 81 party to Iowa 238; Brown v. Hunt Shuetz Co., 163 Iowa recover. 637; Mulroney Mfg. Co. v. Weeks, 185 Iowa 714.

No witness testified to the actual condition of the vegetables, or that they were unfrozen, when delivered to the initial carrier at Los Angeles. There was evidence tending to show that, on the day of delivery, on the day following, and for 8. CARRIERS: fifteen days before, there had been no freezing carriage of temperature in Los Angeles. There was also in goods: evidence the bill of lading issued by the unfrozen initial carrier at Los Angeles, which contained condition: a receipt for the property described therein, jury "in apparent good order, except as noted question. (contents and condition of contents of packages unknown)." This testimony was not stricken from the record or withdrawn from the consideration of the jury. The vegetables were packed in crates and boxes. The car appears to have had a false bottom, and was filled nearly to the top. There was testimony that the vegetables were found at Des Moines to be frozen in the doorway, sides, and ends of the car.

If it be conceded, as contended by appellee, — without, however, being so decided, — that the recital in the bill of lading was not sufficient to establish prima facie the unfrozen condition of the shipment at Los Angeles, we are of the opinion that there was in the record evidence sufficient to carry the case to the jury on that question. It might have been found, from the location of the frozen vegetables in the car and the fact that there was no freezing weather at Los Angeles at the time of delivery and for some time before, that the vegetables were frozen only after being delivered to the initial carrier.

It is doubtless true that there are localities not far distant from Los Angeles where, owing to differences in altitude, there may be considerable variations in temperature. But it is matter of common knowledge and experience that fresh vegetables, such as were in this shipment, are produced in wholesale quantities in November, only in localities where ordinarily they are not subject to freezing. When it was shown that there had been no freezing temperature in Los Angeles for fifteen days before the shipment was delivered to the carrier, and that the vegetables in the more exposed portions of the car were frozen, we think the jury would have been justified in finding that the shipment was not frozen when received by the carrier at Los Angeles, notwithstanding that there are mountainous regions in that section where the temperature may have been below freezing.

Where goods are shown to have been delivered to the initial carrier in good order, a presumption arises that they continued in that condition when received by the connecting carrier. Beard Sons v. Illinois Cent. R. Co., supra; Emery Co. v. Wabash R.Co., 183 Iowa 687; Erisman v. Chicago, B. Q.R. Co., supra.

Since there was evidence sufficient to take the case to the jury, the appellant was prejudiced by the erroneous instruction that required it to establish specific negligence, when all it was bound to do was to show the delivery of the shipment to the initial carrier in an unfrozen condition, and that it was frozen or damaged by freezing when delivered by the terminal carrier at destination.

There are other assignments of error, but they are either without merit, or the questions are not likely to arise on a retrial.

For the error pointed out, the judgment must be, and is, reversed, and the cause remanded. — Reversed and remanded.

De GRAFF, C.J., and STEVENS and MORLING, JJ., concur.

EVANS, J., not participating.

FAVILLE, J., dissents.