Close v. Missouri Pac. R. Co.
Decision Date | 29 May 1939 |
Docket Number | 5976. |
Citation | 191 So. 596 |
Court | Court of Appeal of Louisiana — District of US |
Parties | CLOSE v. MISSOURI PAC. R. CO. |
Rehearing Denied June 28, 1939.
Writ of Certiorari and Review Denied Oct. 30, 1939.
Appeal from Ninth Judicial District Court, Parish of Rapides; R. C Culpepper, Judge.
Action by Martin L. Close against the Missouri Pacific Railroad Company for damage to onions which were frozen in transit. From an adverse judgment, defendant appeals.
Judgment reversed, annulled and set aside and plaintiff's suit dismissed and his demand rejected.
An alleged promise of a railroad's agents to consignee that loss resulting from damaged condition of onions which were frozen while in transit would be adjusted, would not estop railroad from denying liability for the loss, especially where railroad was in bankruptcy, since any such promise by agents was unauthorized and ineffective.
Hudson, Potts, Bernstein & Snellings, of Monroe, for appellant.
K. Hundley, of Alexandria, for appellee.
On December 13, 1937, Hines & Company, at Salt Lake City, Utah, delivered to the Salt Lake & Utah Railroad there, consigned to plaintiff at Alexandria, La., 600 sacks of onions in good condition, with instruction that the shipment be made under Uniform Straight Bill of Lading with standard ventilation conditions. The consignment was routed over the Union Pacific Railroad to Kansas City, Mo., with instructions to be there turned over to defendant, the Missouri Pacific Railroad Company, for transporting and delivery. The total distance of the routing is about 1,800 miles.
The shipment arrived in Alexandria on schedule time at 8:25 P. M. December 17 and was, at an early hour the following morning, delivered to plaintiff. It was then discovered that some of the onions were frozen and, therefore, not fit for market. They were reworked. The value of those discarded, plus expense of reworking, was $134.80.
Plaintiff seeks to recover from defendant, the delivering carrier, the above stated amount. He alleges that under the contract of carriage covering said shipment, the lines over which it was routed were obligated and were instructed, as a means of preventing the freezing of the onions, to close all vents in the car when the outside temperature fell to 32 degrees above zero Fahrenheit, and to remove the plugs in the vents and leave them open thereafter when the temperature rose above the freezing point. The truth of these allegations is admitted by defendant. The only negligence charged to defendant is reflected from the following excerpt from the petition, viz: " That defendant failed to carry out said instructions and by reason thereof said shipment froze while in transit over the line of defendant and was received by him in a frozen condition."
Plaintiff also alleges that he consented to receive the shipment only upon the assurance of defendant's local agent, " acting within the scope of his authority" that the loss arising from the damaged condition of the onions would be adjusted.
Defendant denies that it, nor the connecting lines concerned, their agents or employees, was guilty of any negligence whatsoever in the handling and transporting and delivery of said consignment, but, on the contrary, avers that they rendered full service and performed every duty that devolved upon them as carriers; that under the terms of the contract of carriage, there is no liability upon it or them, in the absence of negligence in the handling and transporting of the consignment.
After the joining of issue, plaintiff filed a plea of estoppel, based upon the following allegations, viz: " That the Defendant herein by its actions and conduct in leading plaintiff to believe that it would pay for damage to the shipment in question herein prior to his accepting the same caused appearer to accept said shipment when otherwise he would have declined the same is now estopped to deny its liability for the loss suffered by him."
There was judgment for plaintiff, and after unsuccessful effort for new trial or rehearing, defendant appealed.
The case was tried upon an agreed stipulation of facts, supplemented by a small amount of oral testimony. This action narrowed the issues. It obviated the taking of testimony of many witnesses without the state, and the building up of a large record on a clear cut legal point.
If plaintiff is entitled to recover at all, it is admitted that the amount sued for is the correct measure of defendant's liability.
Tables were mutually introduced in evidence indicating the temperature registrations, and the condition of the transit plugs or vents of the car containing the onions, as to whether open or closed, at and between various points along the railroad lines to Kansas City. These are as follows, viz:
Place | Temperature | Vents |
Salt Lake City | 40 degrees | Open |
Ogden (Utah) | 40 degrees and falling | Open on arrival, closed on departure |
Green River | 23 degrees | Closed on arrival and departure |
Lorimi | 16 degrees | Closed on arrival and departure |
Cheyenne | 22 degrees | Closed on arrival and departure |
North Platte | 25 degrees | Closed on arrival and departure |
Marysville | 31 degrees | Closed on arrival and departure |
Kansas City | 33 degrees | Closed on arrival and while held |
After leaving Kansas City the vents were all opened, because the temperature registration was above freezing and they remained open as the temperature justified until the car arrived at Alexandria.
The correctness of this table reading is admitted by plaintiff. It is not intimated that readings at other points should have been taken. There would appear no good reason for so doing between Ogden and Kansas City, as the temperature between these points was uniformly below freezing. As is reflected from the said table, the vents were closed for the entire distance. Temperature was above freezing between Salt Lake City and Ogden.
The lower court found that the evidence proves defendant substantially established that it had complied with the shipping instructions and contract of carriage. We think it complied literally therewith.
The only charge of negligence made against defendant was that the vents were not closed and opened as was the railroad's duty, and since plaintiff now admits that this duty was met, it seems to us that his case topples therewith. However, we shall discuss and pass on other issues raised.
Plaintiff argues that the carrier must not only prove that it exercised due care and prudence as regards a shipment of perishable products, where loss or damage occurs enroute, but must also prove the precise cause of the loss and that it did not result from a fortuitous or uncontrollable event.
In this case the cause of the loss is admitted. The onions froze. They froze because the temperature was so low for the greater part of the journey that protection afforded by compliance with the Standard Ventilation regulations was inadequate to prevent this result; probably those nearest the exterior car walls froze. But the railroads did not agree, nor were they legally obligated to do more. The consignment was given the protection the shipper asked for and for which payment was made.
Plaintiff testified that he is well acquainted with the " Standard Ventilation" service offered by railroads and while he did not instruct Hines & Company to make shipment of these onions under such service, he would have done so had he given any instructions on that score. He also testified that he is well acquainted with the " heater service" which carriers make available for shipment of perishable goods in cold weather and knows that such service is employed " for the purpose of keeping merchandise from freezing under very low temperatures, some merchandise," and that there is an increase in charge for such service.
A common carrier, under the civil law, accepting perishable commodities for transporting does not become an insurer of delivery thereof in sound condition. If received in sound condition and delivered unsound, the burden rests upon the carrier to prove that the unsoundness was not a result of its negligence or lack of care, if it would absolve itself from responsibility for the damage. Under the contract of carriage involved in this case, the carrier did not guarantee delivery of the shipment in sound condition. It agreed only to employ certain well recognized methods of preventing the shipment from freezing, but beyond this it did not bind itself. If the temperature descended to levels which rendered impotent, wholly or partially, the efficacy of these preventive measures, the blame may not be visited upon the carriers. The consignor knew that the shipment would pass through sections of the country in which, at that season of the year, the temperature often went below freezing and remained so for long periods. In a way, he was willing to take the chance involved, and plaintiff admits that he would have likewise acted.
Appellee relies upon Art. 2754 of the Revised Civil Code, and some decisions of the courts of this state interpreting it. The Article reads as follows, viz: " Carriers and waterman are liable for the loss or damage of the things entrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrollable events."
The cases cited are: Lehman, Stern & Co. v. Morgan's L. & T. & S. S. Co., 115 La. 1, 38 So. 873,70 L.R.A. 562,112 Am.St.Rep. 259,5 Ann.Cas. 818; National Rice Milling Co. v. New Orleans & N.E. R. Co., 132 La. 615, 61 So. 708, Ann.Cas.1914D, 1099; Noel Bros. v. Texas & P. R. Co., 16 La.App. 622, 133 So. 830; Dejean v....
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