Akerly v. Railway Exp. Agency

• Decision Date: 02 January 1951
• Parties: AKERLY et al. v. RAILWAY EXP. AGENCY, Inc.
• Court: New Hampshire Supreme Court

Page 856

77 A.2d 856

96 N.H. 396

AKERLY et al. v. RAILWAY EXP. AGENCY, Inc.

Supreme Court of New Hampshire.

Jan. 2, 1951.

Upton, Sanders & Upton, Richard F. Upton, Concord, for the plaintiffs.

Warren, Wilson, Wiggin & Sundeen, J. Walker Wiggin, Manchester, for the defendant.

DUNCAN, Justice.

It is not disputed that in the transportation of the plaintiffs' goods the defendant, as a common carrier, was liable as an insurer unless the plaintiffs' losses resulted from causes which are excepted according to the rule of common law, Moses v. Boston & Maine Railroad, 24 N.H. 71, 84, or by agreement of the parties. Since the transportation involved was in interstate commerce, the rights of the parties are governed by federal law. Colby v. American Express Co., 77 N.H. 548, 94 A. 198; Bernardi Greater Shows v. Boston & M. Railroad, 86 N.H. 146, 165 A. 124; Cincinnati New Orleans & Tex. Pac. Ry. v. Rankin, 241 U.S. 319, 36 S.Ct. 555, 60 L.Ed. 1022; Chicago & N. W. Ry. v. C. C. Whitnack Produce Co., 258 U.S. 369, 42 S.Ct. 328, 66 L.Ed. 665.

All shipments involved were made upon the defendant's uniform express receipt which contained the following provisions: '4. Unless caused in whole or in part by its own negligence or that of its agents, the company shall not be liable for loss, damage or delay caused by--* * * b. The nature of the property, or defect or inherent vice therein.

According to established principles, the plaintiffs are entitled to recover if their goods were delivered to the defendant in good condition, and by it to the consignee in damaged condition, unless the defendant has established that the damage was due to a cause or causes within the exceptions stated in its contract with the plaintiffs. There was evidence that when delivered to the defendant the eggs were in good condition, and that when they were tendered to the consignee they were not. This was sufficient to establish a prima facie case for the plaintiffs. 'It is sometimes said that the basis of the carrier's liability for loss of goods or for their damage in transit is 'presumed negligence' * * * But the so-called presumption is not a true presumption, since it cannot be rebutted, and the statement itself is only another way of stating the rule of substantive law that a carrier is liable for a failure to transport safely goods intrusted to its care, unless the loss or damage was due to [the act of God, the public enemy, the act of the shipper, or the nature of the goods.]' Chesapeake & Ohio Ry. Co. v. Thompson Mfg. Co., 270 U.S. 416, 421-422 46 S.Ct. 318, 70 L.Ed 654. See also, Ledoux v. Ry. Expr. Agency, 113 Vt. 480, 483-484, 35 A.2d 665.

The defendant relies upon three propositions in support of its motions for nonsuits and directed verdicts: First, that it was under no duty to furnish heat; second, that the damage to the eggs was due to the 'nature of the goods'; and third, that its proof of due care conclusively rebutted the presumption of negligence arising from the establishment of a prima facie case. It is our opinion that none of these defenses operate to relieve the defendant of liability as a matter of law.

The eggs shipped by the plaintiffs were packed in fiber board cases and labeled 'Hatching Eggs,' in accordance with the requirements of the defendant's tariff. It is true, as the defendant points out, that the tariff contains no provision for special protective service such as heating; and this is the basis of its contention that it is without duty to furnish heat. To do so, it asserts, would violate statutory provisions relating to tariffs. 49 U.S.C.A. § 6(7). The plaintiffs contend that the defendant's tariff included a charge for heating. The tariff is silent with respect to this service. It contains no provision that it shall not be furnished, Cf. Clemons Produce Co. v. Denver & R. G. Railroad, 203 Mo.App. 100, 219 S.W. 660, and provides no option to obtain such service at a higher rate as is commonly done in the tariffs of carriers of freight by railroad. Cf. Pacific Fruit & Produce Co. v. Northern Pac. R. Co., 109 Wash. 481, 186 P. 852, 10 A.L.R. 337. The statute does not specifically require a separate statement of heating charges, and no claim is made that the Interstate Commerce Commission has required it. 49 U.S.C.A. § 6(1).

There was evidence that for many years that defendant had solicited the shipment of hatching eggs, holding itself out to the public as a carrier providing heated cars, and furnishing safe transportation regardless of the season. It also appeared that standard express cars carry steam pipes on the sidewalls, to which heat is furnished in the same manner as to the passenger and other cars of the trains of which they are commonly a part. The defense in this case was largely devoted to establishing that the cars in which the plaintiffs' eggs were carried were at all times heated to a degree sufficient to prevent freezing.

Since its early beginnings the express business has consisted of the carriage of valuables in the custody of a messenger. From the outset carriage has been by passenger train. See In The Matter of the Express Companies, 1 I.C.C. 349; Express Cases, 117 U.S. 1, 6 S.Ct. 542, 628, 29 L.Ed. 791; Wells Fargo & Co. v. Taylor, 254 U.S. 175, 41 S.Ct. 93, 65 L.Ed. 205; Lockwood v. American Express Co., 76 N.H. 530, 85 A. 783. With the growth of the business to the transportation of the great variety of goods now commonly carried, the practice of heating cars has been recognized as a factor in the costs included in express rates. In Re Express Rates, 231 I.C.C. 471, 478, certain increased express rates upon eggs, fruit and fish were approved by the Interstate Commerce Commission upon the representation of the express companies that 'this traffic should be required to bear its proportion of increased costs' because it was 'perishable and therefore required preferred handling.' From what is said in Re Perishable Freight Investigation, 56 I.C.C. 449, 461-465, it is apparent that where no specific charge is made for protective service regularly furnished, none need be separately stated in the tariffs of a carrier. We conclude that no violation of the statute results where the service is available to all shippers without special charge. Such a service is not a 'privilege' or special benefit. 49 U.S.C.A. § 6(7) supra. No departure from express provisions of the tariff is involved. Cf. American Ry. Express Co. v. American Trust Co., 7 Cir., 47 F.2d 16. We are accordingly of the opinion that the service of heating was implicit in the defendant's general tariff without specific mention, and that the defendant was under a duty to render the service which it undertook at the trial to show that it had furnished. Lavagetto v. Ry. Express Agency, 34 Wash.2d 578, 209 P.2d 371; Hardesty v. American Rail. Ex. Co., 2 W.W.Harr. 66, 32 Del. 66, 119 A. 681. See Charges for Protective Service to Perishable Freight, 274 I.C.C. 751; Baker v. Boston & M. Railroad, 74 N.H. 100, 109-110, 65 A. 386; Rolfe v. Boston & M. Railroad, 69 N.H. 476, 477, 45 A. 251.

In the charge to the jury, the Trial Court gave the following instruction to which the defendant excepted: 'In carrying hatching eggs the defendant would be under the duty to heat or cause to be heated its cars and storage rooms wherever reasonably necessary to prevent the eggs from being so frozen or chilled as to render them unsuitable for hatching.' We think that this was an adequate statement of the defendant's duty and that there was no error in denying its motions for nonsuits and directed verdicts so far as they were based upon the ground that no such duty existed.

The second contention advanced by the defendant is founded upon the provision of the uniform express receipt that 'unless caused in whole or in part by its own negligence * * * the company shall not be liable for loss [or] damage * * * caused by the nature of the property, or defect or inherent vice therein.' It contends that the evidence establishes as a matter of law that the loss suffered by the plaintiffs was caused by the nature of the eggs.

In construing this exception consideration must be given to the reasons which gave rise to it. As established at common law it grew out of the nature of the liability to which it related. The liability of an insurer was imposed upon carriers because of their exclusive control of goods shipped, and the inability of the shipper to protect the goods while in the custody of the carrier, or to establish the cause of damage which then occurred. On the other hand, it was considered unjust that carriers should be thus liable for damage arising from causes which they in turn were powerless to prevent, regardless of the care exercised by them. Thus the carrier was relieved from liability for damage 'due to explosion * * * fermentation, putrefaction, dissolution, spontaneous combustion, growth, decay, disease, or death', Rixford v. Smith, 52 N.H. 355, 361, and to the vicious propensities or 'inherent vice' of livestock, provided that carrier's negligence did not contribute to the loss. 9 Am.Jur. 864; Baltimore & Ohio R. Co. v. Dever, 112 Md. 296, 75 A. 352, 26 L.R.A.,N.S., 712; Rixford v. Smith, supra; Faucher v. Wilson, 68 N.H. 338, 38 A. 1002, 39 L.R.A. 431. Hence it was said that a carrier is not an insurer against the 'inherent natural tendency of perishable property to depreciate or decay.' Hardesty v. Amer. Rail. Ex. Co., 2 W.W.Harr. 66, 32 Del. 66, 69, 119 A. 681, 683, supra.

The question is whether the freezing of eggs must be said to come within this exception. It may be recognized that eggs by their nature are susceptible to freezing; but eggs do not freeze unless exposed to freezing temperatures. Natural forces from without must act upon the egg in order to produce the result complained of. Unlike the fermentation of molasses, Faucher v. Wilson, supra, disease of strawberries, Railway Express Agency, Inc. v. S. L. Robinson & Company...