Chicago & E.I.R. Co. v. Collins Produce Co.

• Decision Date: 25 July 1916
• Docket Number: 2155.
• Citation: 235 F. 857
• Parties: CHICAGO & E.I.R. CO. v. COLLINS PRODUCE CO.
• Court: U.S. Court of Appeals — Seventh Circuit

235 F. 857

CHICAGO & E.I.R. CO. v. COLLINS PRODUCE CO.

No. 2155.

United States Court of Appeals, Seventh Circuit.

July 25, 1916

Rehearing Denied September 27, 1916.

L. O Whitnel, of East St. Louis, Ill., for plaintiff in error.

G. Gale Gilbert, of Mt. Vernon, Ill., for defendant in error.

The Collins Produce Company, defendant in error, herein called 'plaintiff,' brought suit against the Chicago &amp Eastern Illinois Railroad Company, plaintiff in error, herein called 'defendant,' for damages occasioned by the loss of a car of chickens. Verdict and judgment for plaintiff for $4,125.82.

Plaintiff shipped a car of chickens from Cypress, Ill., for Newark, N.J., taking defendant's bill of lading therefor. The shipment left Cypress March 21st over defendant's line and was conveyed to Cincinnati, where it was delivered to a connecting carrier, the Cincinnati, Hamilton & Dayton Railroad Company for forward movement to its destination.

The car duly reached Dayton, Ohio, March 25th, where it met 'the Dayton flood,' which was so unusual and extraordinary as concededly to come within the legal definition of 'an act of God.' The car was surrounded by water, but on comparatively high land, and no damage occurred to the poultry. In fact, the water at this place scarcely rose above the tracks.

The general situation in Dayton, occasioned by the rise of water, was such as to call for official action on the part of the Governor of Ohio, who ordered the militia to Dayton and proclaimed martial law. Gen. Wood was placed in command.

The car of poultry was at all times in the charge of plaintiff's caretaker, whose duty it was to feed and water and look after the poultry en route. He continued his duties while the car was at Dayton, and claims that he had no difficulty in securing the necessary feed. At Dayton the caretaker employed an assistant and made arrangements to unload the poultry in a yard provided for that purpose, if the situation required it.

The car of chickens was confiscated on March 31st on the order of Gen. Wood and by his authority removed and disposed of, all against the protest of the caretaker.

Plaintiff contended that the confiscation was unwarranted and was made at the request of defendant. This contention defendant disputed.

The court submitted the case to the jury upon one theory, viz., that the defendant was liable if the car was seized by the military authorities on the invitation of the carrier or any of its authorized officers and agents. All other controlling issues were resolved by the District Court in favor of the carrier.

The court presented the particular issue to the jury in the following language: 'The defendant is only liable in this case for the failure of the Cincinnati, Hamilton & Dayton Railroad to discharge the duties cast upon it by law. It was its duty, of course, to transport this property, if it could do so. It couldn't overcome the flood-- it couldn't overcome the action of the military authorities, if the military authorities acted of their own volition. And the only question in this case is a question of fact and a very simple one, and it is this, whether, from all of this evidence, you believe that this property was taken and seized by the military authorities by and on invitation of the Cincinnati, Hamilton & Dayton Railroad or any of its authorized officers and agents. That is the only question you have to decide in this case.'

The defendant at the close of the trial moved the court to direct the jury to render a verdict in its favor, which motion was denied. Errors complained of are: (a) Erroneous construction of the Carmack amendment to the interstate commerce law. (b) The admission and rejection of evidence. (c) Refusal to direct a verdict in favor of the defendant.

Before MACK, ALSCHULER, and EVANS, Circuit Judges.

EVANS Circuit Judge (after stating the facts as above).

It is contended for defendant that the liability of the initial carrier for loss occurring while the shipment is in the charge of the connecting carrier is not the same as the liability of the initial carrier for loss while the shipment is in its charge and is not the common-law liability of a carrier. In support thereof, counsel refers to that portion of section 20 of the act to regulate commerce, commonly called the Carmack amendment, which reads as follows:

'Any common carrier * * * shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company to which such property may be delivered or over whose lines such property may pass.'

Defendant's position is that the words 'caused by it' appearing in the quotation impose upon the shipper the burden of establishing that the loss was in fact caused by the carrier, and reliance is placed upon the case of Adams Express Co. v. Croninger, 226 U.S. 491, 33 Sup.Ct. 148, 57 L.Ed. 314, 44 L.R.A. (N.S.) 257. The United States Supreme Court, in the case of Cincinnati, New Orleans & Tex. Pac. Ry. Co. v. Rankin, 241 U.S. 319, 36 Sup.Ct. 555, 60 L.Ed. 1022, decided May 22, 1916, after referring to the case of Adams Express Co. v. Croninger, passing upon the words 'caused by it,' as they appear in section 20 of the Interstate Commerce Act, says:

'Properly understood, neither this nor any other of our opinions holds that this amendment has changed the common-law doctrine heretofore approved by us in respect to the carrier's liability for loss occurring on its own line.'

The trial court properly concluded that the Carmack amendment to the twentieth section of the act to regulate commerce did not change the common-law rule or restrict the liability of the carrier. The amendment merely imposed a liability upon the initial carrier for a loss occurring on the line of a connecting carrier. It was not intended to restrict, nor did it limit, the liability of any carrier. Atlantic Coast Line Co. v. Riverside Mills, 219 U.S. 194, 205, 31 Sup.Ct. 164, 55 L.Ed. 167, 31 L.R.A. (N.S.) 7; Gal. H. & S. Ry. Co. v. Wallace, 223 U.S. 492, 32 Sup.Ct. 205, 56 L.Ed. 516. Also see decisions of United States Supreme Court (Advance Sheets): New York, P. & N. Ry. Co. v. Peninsula Produce Exchange Co., 240 U.S. 34, 36 Sup.Ct. 230, 60 L.Ed. 511, decided January 24, 1916; Cincinnati, N.O. & Tex. Pac. Ry. Co. v. Rankin, 241 U.S. 319, 36 Sup.Ct. 555, 60 L.Ed. 1022, decided May 22, 1916; N. P. Ry. Co. v. Wall, 241 U.S. 87, 36 Sup.Ct. 493, 60 L.Ed. 905, decided April 24, 1916.

Defendant maintains that: (a) Invitation by the carrier to the military authorities to seize the car did not constitute 'loss, damage or injury to such property caused by it or by any common carrier.' (b) The seizure and confiscation of the car of chickens was by military authority over which the common carrier had no control, and that liability for loss by reason thereof was not imposed by the bill of lading or by the common law.

The first contention of defendant is based upon an erroneous construction of the Carmack amendment to the interstate commerce act as heretofore pointed out. The loss being established, the liability of the initial carrier was not dependent upon the plaintiff's proof that such loss was caused by either the initial or connecting carrier. Defendant's liability was the common-law liability of a carrier, and it was not incumbent upon plaintiff to show that an act of the carrier occasioned the loss. Galveston, H. & S. Ry. Co. v. Wallace, 223 U.S. 491, 32 Sup.Ct. 205, 56 L.Ed. 516.

The claim of nonliability for seizure of the car of chickens as an act over which defendant had no control, presents a more serious question.

It appears from the bill of lading that the carrier's liability was restricted by the following express language:

'No carrier nor party in possession of any of the property herein described shall be liable for any loss thereof or any damage thereto or delay caused by the act of God, the public enemy, quarantine, authority

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