American Cotton Oil Co. v. Davis

• Decision Date: 20 March 1924
• Docket Number: 18285.
• Citation: 224 P. 23,129 Wash. 24
• Parties: AMERICAN COTTON OIL CO. v. DAVIS, Agent.
• Court: Washington Supreme Court

224 P. 23

129 Wash. 24

AMERICAN COTTON OIL CO. v. DAVIS, Agent.

No. 18285.

Supreme Court of Washington

March 20, 1924

Department 2.

Appeal from Superior Court, King County; Griffiths, Judge.

Action by the American Cotton Oil Company against James C. Davis, as Agent of the United States. Judgment for defendant, and plaintiff appeals. Affirmed.

Carroll B. Graves and Guie & Halverstadt, all of Seattle, for appellant.

Thomas Balmer, Edwin C. Matthias, and Alfred J. Clynch, all of Seattle, for respondent.

MITCHELL J.

On December 16, 1918, Mitsui & Co. delivered to the United States Railroad Administrator (Great Northern Railroad) at Everett, Wash., a privately owned tank car containing soya bean oil, consigned to the American Cotton Oil Company at Chicago. This action was brought to recover damages for the nondelivery of that shipment. The complaint is in the usual form in such cases. The answer admits the receipt and nondelivery of the shipment, and contains appropriate denials of other things stated in the complaint and then affirmatively alleges:

'That the failure of the defendant to deliver the contents of said car, as consigned, was due to the act or default of the shipper or owner thereof, in loading, shipping and forwarding the same in a defective and insecure car, and in failing to properly close the valve or outlet in the bottom of said car; that said car was furnished by the plaintiff and the shipper for said shipment, and was an improper and unsafe car for the transportation of soya bean oil, in that the valve and other apparatus for closing the bottom outlet of said car were loose, insecure, and defective, and said valve and outlet were not securely closed by the shipper, and thereby the contents of said car were permitted to leak and run out of said car as a result of their own inherent nature.'

The case was tried to a jury, and the plaintiff has appealed from a verdict and judgment in favor of the defendant.

The tank car in question was of the usual construction. It had a dome through which to load oil into the car. It had an outlet valve in the bottom of the car to be used in unloading, that was manipulated for seating and unseating it by a rod extending to the dome of the car. Below the valve and connected with it there was a discharge pipe with threads and a cap at the bottom end. Witnesses for the respondent consisting of railroad men and shippers, testified that it was the function of the valve to hold the lading. They testified that while the discharge pipe was intended to retain slight seepage or leakage past the main valve, it was primarily and principally intended for the use of hose to be attached in the process of unloading, and that the cap was necessary to protect the threads by which the hose was attached. Some of them also testified that the discharge pipe would likely hold the lading if imposed upon it. During the eastward movement of the car, it, with others was given customary inspection, lastly at a division point in Montana, at which time there was no sign of leakage. Shortly thereafter the conductor from the rear platform of the caboose noticed the leakage of oil. The train was stopped, and, notwithstanding prompt efforts by the crew, the remainder of the oil was entirely discharged before the flow could be stopped. This occurred before daylight December 24, 1918. The car was left on a siding and an inspector sent to examine it, but was unable with the tools he had to remove the dome cover. However, by thrusting a switch through the drainage pipe from the bottom he discovered that the main or so-called plunger valve in the bottom of the car was open all the way around 'approximately an inch or an inch and a quarter or something like that.' The car was returned to Seattle. It was refilled with oil by Mitsui & Co., for shipment east over the same line about January 22, 1919. On the second trip the outlet cap of the car again came off, causing the loss of the entire load of oil at a point about 125 miles further east than the place at which the first loss occurred. Upon the happening of the second loss, January 28, 1919, the car was given a careful inspection. The evidence showed that the main valve was open about an inch, and that the valve stem was so thoroughly rusted to the yoke through which it was threaded that it could not be moved or operated from the outside, and that it required the extreme strength of a man with an 18-inch Stillson wrench, with his back braced inside the car to seat or close the valve. There is no dispute that such condition existed, and many witnesses, including those who made the inspection, testified that the corrosion found in the yoke through which the stem passed was so extensive that it must have existed and held the valve open when the car was loaded with oil for the first shipment. It appears that prior to the December shipment the car had been empty for five or six months since its last service, which was in the transportation of molasses over a different railroad. The condition of the valve could not be seen through a load of oil, even if the dome cover were removed. The loading of the car was done by the shipper through its own agents and employés on its own premises, without any supervision by the carrier.

It is assigned that the court erred (1) in permitting statements to be made by counsel for the respondent and evidence to be placed before the jury of the loss of a second load of oil by the same tank car on January 28, 1919, in Montana near the same place of the first loss, and (2) in admitting evidence of the condition of the car at the time of the second loss, January 28, 1919.

It is readily apparent from the issues made by the pleadings that the principal controversy arose on the affirmative defense. It involves the rule that improper loading constitutes ordinarily such a fault on the part of the shipper as will relieve a common carrier from its common-law liability for the safe delivery of goods it undertakes to carry, especially where the faulty loading, in carload lots, consists of internal defects of which the carrier does not know, and from which the loss or damage ensues to the goods in the ordinary course of handling and transportation. Wilson & Co. v. Hines, 123 Wash. 643, 213 P. 5; 4 R. C. L., Carriers, § 203; Hutchinson on Carriers (2d Ed.) § 333. The burden of this defense was on the respondent, and, since it did not own or furnish the car, had in no way supervised the loading of it, and made no examination of it with respect to the latent defect chargeable with the loss, the necessity of proving that defect, the condition of the valve, as discovered by the inspection on January 28, 1919, and the reason for its condition, are obvious.

A fair statement of the rule is found in 10 R. C. L. Evidence, § 112:

'As to proof of the condition of things subsequent to an accident, the rule seems to be that, where the condition has not changed, the evidence is admissible. But unless the evidence relates to a time so close to the accident that it is apparent the condition has not changed, evidence as to the condition at a later period will not be received. The exceptions to this are where, from the substance of the matter, the lapse of time would not make any material difference.'

In the case of Williams v. Lansing, 152 Mich. 169, 115 N.W. 961, evidence of the condition of the sidewalk six months after the accident was allowed. In Jacksonville S.E. Ry. v. Southworth, 135 Ill. 250, 25 N.E. 1093, the condition of a railroad track found on taking up the track six months after the accident was allowed. In it the court said:

'While, as a general rule, evidence of defects in the track so long after the injury would not be admissible, yet, being connected with other proof showing that the condition remained substantially the same, it becomes competent.'

In Whiting Const. Co. v. Preston, 121 Md. 210, 88 A. 110, a condition found to exist more than a year later was permitted, the court saying:

'And whether this rule [condition subsequent to the date of accident] is to be followed depends largely upon the character, nature, and condition of the place or thing of which evidence of its condition is sought to be given, for where it may be reasonably presumed that during a given interval after an accident there has been no material change in the condition of the place or thing, evidence of its condition after that interval is admissible to show its condition at the time of the accident, especially where at the latter date its condition is such as to negative any correct inference of recent changes. Ency. of Evidence, vol. 8, p. 905.'Many other cases might be cited to the same effect. The rule is applicable here, it being shown by an abundance of evidence that the time intervening between the date of the first loading and the date of the inspection that was made could not make any very material difference; that is, there were a great number of witnesses, well qualified by experience to speak on the subject, who testified that the corrosion which held the valve open at the time of inspection could not have developed between the dates mentioned but must have existed when the car was loaded for the shipment, the loss of which was the cause of this action.

There can be no serious question about the applicability of the rule to the condition of the car at the time the inspection...