Chicago and Erie Railway Company v. Schaff Brothers Company

• Decision Date: 04 December 1917
• Docket Number: 9,400
• Citation: 117 N.E. 869,74 Ind.App. 227
• Parties: CHICAGO AND ERIE RAILWAY COMPANY v. SCHAFF BROTHERS COMPANY
• Court: Indiana Appellate Court

117 N.E. 869

74 Ind.App. 227

CHICAGO AND ERIE RAILWAY COMPANY v. SCHAFF BROTHERS COMPANY

No. 9,400

Court of Appeals of Indiana

December 4, 1917

Rehearing denied February 26, 1918.

Transfer denied November 18, 1920.

From Huntington Circuit Court; Samuel E. Cook, Judge.

Action by the Schaff Brothers Company against the Chicago and Erie Railway Company. From a judgment for plaintiff, the defendant appeals.

Reversed.

W. O Johnson, Walter M. Johnson, A. S. Lytton and C. K. Lucas, for appellant.

George M. Eberhart and Sumner Kenner, for appellee.

OPINION

DAUSMAN, J.

Appellee instituted this action against appellant as a common carrier to recover damages for the loss of a piano ruined while in transit. Verdict and judgment for appellee in the sum of $ 125.

On or about March 10, 1913, Schaff Brothers Company delivered to the railway company at Huntington, Indiana, one piano, for carriage to M. H. George at Middletown, Ohio. The carrier received the piano for transportation as aforesaid and issued a bill of lading therefor. The distance from Huntington to Middletown in 163 miles. On March 25, 1913, while in course of transportation, at Dayton, Ohio, the piano was damaged by flood which covered the car containing the piano with water and mud while on a track in the C. H. and D. freight yard. The piano was delivered at Middletown on May 15, 1913, and from there returned to the shipper, arriving at Huntington on June 23, 1913. The value of the piano at the time of shipment was $ 125, and it was rendered worthless by the water and mud of the Dayton flood.

The Dayton flood was caused by an enormous quantity of water falling from the clouds--commonly called a cloudburst--upon the territory drained by the Miami river, which river flows through that city. It came so suddenly that it could not have been predicted. It was so overwhelming in volume and force that it could not be resisted or controlled by human effort. It was unprecedented in that region. That it is an example of that kind of natural phenomena which comes within the strict law definition of an "act of God" is not questioned.

The court gave the following instruction: "5. I instruct you, gentlemen, that a common carrier is relieved from the performance of its contract to carry freight and is relieved from liability for injuries to property in its custody for transportation where such property is damaged or destroyed by some act resulting exclusively from an act of God or other inevitable accident or cause over which it has no control and could not reasonably anticipate or guard against. But this rule does not apply where the carrier has violated its contract to carry with reasonable dispatch and by its unreasonable delay is overtaken by an overpowering cause, even though of a nature not reasonably to be anticipated or foreseen. And so in this case, if you find from the evidence that said piano was caught in the flood while enroute from Huntington, Indiana, to Middletown, Ohio, and that such flood was of a nature not reasonably to be anticipated, yet this alone would not excuse defendant if you also find that there was unreasonable delay in forwarding said piano and that such delay contributed to such injury."

Does the instruction correctly state the law? This is "a much-debated legal question." 4 R. C. L. 720; 10 C. J. 126; Green-Wheeler Shoe Co. v. Chicago, etc., R. Co. (1906), 130 Iowa 123, 106 N.W. 498, 5 L. R. A. (N. S.) 882, 8 Ann. Cas. 45; Bibb Broom Corn Co. v. Atchison, etc., R. Co. (1905), 94 Minn. 269, 102 N.W. 709, 69 L. R. A. 509, 110 Am. St. 361, 3 Ann. Cas. 450; Rodgers v. Missouri, etc., R. Co. (1907), 75 Kan. 222, 88 P. 885, 10 L. R. A. (N. S.) 658, 121 Am. St. 416, 12 Ann. Cas. 441. Two conflicting rules have been established in different jurisdictions: (1) In several of the states it is held that the act of God completely exonerates the carrier, even though there has been negligent delay in transportation, and these cases rest on the proposition that the delay is not the proximate cause of the loss. (2) In some other states it is held that the act of God does not exonerate the carrier where there has been negligent delay in transportation, and these cases rest on the proposition that the delay is a contributing cause, or a concurring cause, or a proximate cause, or a concurring proximate cause.

Counsel for appellee have called our attention to Pittsburgh etc., R. Co. v....