Aurora Fruit Growers' Ass'n v. St. Louis-San Francisco Ry. Co.

• Decision Date: 09 June 1927
• Docket Number: No. 4043.,4043.
• Citation: 297 S.W. 440
• Parties: AURORA FRUIT GROWERS' ASS'N v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

297 S.W. 440

AURORA FRUIT GROWERS' ASS'N v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 4043.

Springfield Court of Appeals, Missouri.

June 9, 1927.

Appeal from Circuit Court, Lawrence County; Charles L. Henson, Judge.

Action by the Aurora Fruit Growers' Association against the St. Louis-San Francisco Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

E. T. Miller, of St. Louis, and Mann & Mann, of Springfield, for appellant.

Bloss & Walker, of Aurora, for respondent

BRADLEY, J.

This is an action to recover $1,825.26 as damages for an alleged loss sustained in a shipment of a car of strawberries from Aurora, Mo., to Cleveland, Ohio. The cause was tried to a jury, resulting in a verdict and judgment for plaintiff for $800, and defendant appealed. We heretofore filed an opinion in this cause, reversing and remanding, but granted a rehearing.

It is alleged that defendant negligently failed to properly ice the car, and that the car was negligently delayed in shipment. Defendant answered by a general denial.

Error is assigned (1) on the refusal of defendant's peremptory request for a directed verdict at the close of the case; (2) on the instructions; and (3) on the admission of evidence.

What we may term the demurrer raises two questions, viz.: (1) Was there substantial evidence tending to show that the car was unreasonably delayed in shipment? and (2) Did defendant discharge its duty relative to icing the car? These questions are related, but we shall consider them separately.

May 23, 1921, plaintiff ordered the car in which the berries were shipped. The car was iced to full capacity, 8,500 pounds, at Monett, a short distance from Aurora, at 4:35 a. m. on May 24th, and was set for loading at 8 a. m. at Aurora on same day. Loading started at 10 a. m., was completed at 10 p. m., and car was billed out at 10:30 p. m. May 24th. The car moved out of Aurora at 1 a. m. and arrived at Springfield at 5:25 a. m. May 25th. It was set at Springfield for re-icing at 7 a. m., was re-iced, 6,000 pounds being used to fill to capacity, by 7:30 a. m., and moved out of Springfield at 9:35 a. m. May 25th. The car arrived at St. Louis at 11:30 p. m. May 25th, and was delivered to the Terminal Railroad Association at 1 a. m. May 26th, and was re-iced at East St. Louis at 7 a. m. same date, 4,200 pounds of ice being used to fill to capacity. The car was delivered to the Big Four railroad at 4:40 p. m. May 26th and moved out of East St. Louis at 7:10 p. m. same day. It arrived at the icing platform at Indianapolis at 6 a. m. May 27th, and was re-iced to capacity between 6 and 7 a. m., 2,000 pounds of ice being used, and moved out of Indianapolis at 8:35 a. m. on same day, May 27th. The car arrived at Lindale Yards, Cleveland, Ohio, the destination point, at 1:50 a. m. May 28th, and was placed on the unloading track at 6 a. m., and the consignee notified, according to defendant's evidence, at 8 a. m. same day.

Thomas L. Walsh, inspector for the consignee, K. B. Pocock, inspected the car about one-half hour after he was notified on May 28th that the car was on the unloading track. The berries were not in satisfactory condition to Inspector Walsh, and he refused to accept the delivery. After the consignee refused to accept the delivery, the car was re-iced and reconsigned by plaintiff or at its direction to National Fruit & Produce Company at Buffalo, N. Y., where the berries were sold, netting plaintiff only $274.74.

We stated above that Inspector Walsh was notified about 8 a. m. May 28th that the car was on the unloading track at Cleveland. Walsh testified that it was "nearly noon" when he inspected, and that he inspected the car about one-half hour after he was notified. For the purposes of the demurrer then, it is fair to say that the consignee was not notified that the car was ready for unloading until about 11 a. m. May 28th.

This car moved out of Aurora at 1 a. m. May 25th and arrived at St. Louis at 11:50 p. m. same day, one hour and 20 minutes behind schedule, being due in St. Louis at 10:30 p. m. The car was billed at Aurora to go over the Big Four from East St, Louis. It moved out of East St. Louis over the Big Four at 7:10 p. m. May 25th on the first train that was available for this car after it arrived in St. Louis. This train left East St. Louis 10 minutes behind schedule, being due to leave at 7 p. m. The car arrived at Cleveland at 1:50 a. m., one hour and 49 minutes behind schedule, being due at 12.01 a. m. Certainly no negligent delay in the movement of this car of berries from Aurora to Cleveland can be sustained under this record.

But plaintiff contends that there was a delay in handling the car after it arrived in Cleveland. Had the car arrived in Cleveland at 12:01 a. m. May 28th, on time, it would have been ahead of the closing of the main market on that day only 5 hours and 59 minutes. During this time the car had to be set for unloading and the consignee notified and the berries disposed of, as the main market closed at 6 a. m. If it be assumed that the car could have been set for unloading prior to 6 a. m., there is not a word of evidence that the consignee had any place of business at which he could have been notified in time to have disposed of these berries prior to 6 a. m. Plaintiff offered some evidence as to what some witness or witnesses thought about the movement of this car of berries, but we have stated the movement as shown by the records of its movement, which records in part were introduced by plaintiff. We are clear that there is no substantial evidence in this record tending to show that there was any negligent delay in the movement of this car of berries ; therefore it was error to submit the question of negligent or unreasonable delay.

Is there any substantial evidence that defendant was negligent respecting the icing? The car was iced to capacity, 8,500 pounds, at Monett at 4:35 a. m. May 24th. Loading was not completed until 10 p. m. that day, and the car was not re-iced until between 7:00 and 7:30 on the morning of the 25th. From the time the car was first iced at Monett until it was re-iced at Springfield approximately 27 hours elapsed. It took 6,000 pounds of ice to fill to capacity when re-iced at Springfield; or, to state the ice condition otherwise, there were only 2,500 pounds of ice in the bunkers when the car was re-iced at Springfield. Plaintiff introduced evidence tending to show that, under the weather conditions then prevailing and the number of crates loaded, this car should have been re-iced prior to the time it was re-iced at Springfield. The evidence tended to show that such depletion of ice brought the ice below the fruit line, and that invariably when such occurred "deterioration sets up in the fruit then above the ice in the bunkers." Also it was shown that when deterioration once begins it cannot be arrested except by actual freezing.

Defendant's liability for the alleged failure to properly ice depends upon two questions, viz.: (1) Was it the duty of defendant, under the facts, to re-ice the car at Aurora, if such reasonably appeared to be necessary? and (2) Was it defendant's duty to re-ice the car, if such reasonably appeared to he necessary, at any place after it left Aurora, except at regular icing stations?

As stated, plaintiff's evidence tended to show that the car should have been re-iced prior to the time it was re-iced at Springfield between 7 a. m. and 7:30 a. m. May 25th. Defendant contends that, under the facts, it is not responsible for the car not being re-iced from the time it was iced at Monett at 4:35 a. m. May 24th until re-iced at Springfield between 7 and 7:30 a. m. May 25th. As stated, approximately 27 hours elapsed from the time the car was originally iced at Monett until it was re-iced at Springfield. From the time the car was iced at Monett at 4:35 a. m. until loading was completed, 17 hours and 25 minutes elapsed. During this time the car was in the possession of plaintiff for 12 hours and 30 minutes, but this possession should rot be held to be exclusive, and according to this record it would seem that it was not. exclusive. Defendant's agent at Aurora testified that at 6 o'clock p. m. the bunkers. were something like half full of ice. This condition could not have been ascertained except by examination. Defendant recognized, by the examination made by its agent, that some duty devolved upon it respecting the refrigeration of the car during the loading period. But, whether defendant recognized this duty or not, it had a duty, and it can escape liability only by showing that it discharged this duty, unless plaintiff assumed the duty of keeping defendant advised of the ice condition during the loading period, and there is no evidence of such assumption in the record.

There is no dispute about defendant's duty to furnish a car suitable for the shipment of plaintiff's strawberries. It did furnish such car, but did its duty lapse, when it delivered the car to be loaded, until it was billed out by plaintiff? A common carrier is not an insurer of perishable freight, but its care is determined by the character of the shipment and the conditions obtaining. Tri-State Fruit Growers' Ass'n v. St. Louis-San. Francisco Railway Company (Mo. App.) 264 S. W. 445; Chicago & Alton Railroad Co. v.. Davis, 159 Ill. 53, 42 N. E. 382, 50 Am. St. Rep. 143; Gibson v. Railroad, 93 Ark. 439, 124 S. W. 1033; 4 R. C. L. 728, 729, 730; 10 C. J. 92, 93; Dolan Fruit Co. v. Davis, 111 Neb. 322, 196 N. W. 168, 32 A. L. R. 107; Pennsylvania R. Co. v. Walker et al., 147 Md. 323, 128 A. 45; Brennison v. Pennsylvania R. Co., 100 Minn. 102, 110 N. W. 362, 10 Ann. Cas. 169; Taft Co. v. American Express Co., 133 Iowa, 522, 110 N. W. 897, 10 L. R. A. (N. S.) 614, 119 Am. St. Rep. 642; Louisville & N. R. Co. v. Farmers' Produce Co., 17 Ala. App. 388, 85 So. 578; Fort v. Denver & R. G. R. Co., 69 Colo. 441, 195 P. 109.

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