Cudahy Packing Co. v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 01 May 1916
• Docket Number: No. 12062.,12062.
• Citation: 187 S.W. 149,193 Mo. A. 572
• Parties: CUDAHY PACKING CO. v. ATCHISON, T. & S. F. RY. CO.
• Court: Missouri Court of Appeals

187 S.W. 149

193 Mo. A. 572

CUDAHY PACKING CO. v. ATCHISON, T. & S. F. RY. CO.

No. 12062.

Kansas City Court of Appeals. Missouri.

May 1, 1916.

Rehearing Denied June 12, 1916.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"To be officially published."

Action by the Cudahy Packing Company against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Thomas R. Morrow, George J. Mersereau, and Slogan Turgeon, all of Kansas City, for appellant. C. E. Cooley, P. E. Reeder, and New, Miller, Camack & Winger, all of Kansas City, for respondent.

TRIMBLE, J.

The Cudahy Packing Company shipped from its packing plant in Wichita, Kan., two carloads of fresh meat, one to its branch house in Springfield, Ill., and the other to another of its houses in Pittston, Pa. When the cars arrived at their respective destinations, the meat was spoiled. The packing company brought this suit under the Carmack Amendment to the Hepburn Act against the defendant, as the initial carrier, to recover the loss.

The meat was shipped in Cudahy refrigerator line cars owned and furnished by plaintiff. They were loaded, iced, and sealed by plaintiff at its packing plant and delivered to defendant for transportation under uniform bills of lading signed by both parties. These bills contained instructions, inserted by plaintiff, to re-ice the cars to full capacity at certain stations therein named, adding 12% salt, and to re-ice oftener if delayed.

The petition is in two counts, one for each car, and is based upon the common-law liability of the carrier as an insurer, no negligence being charged; it being merely alleged that the meat, loaded in said refrigerator cars fully iced and at the proper temperature, was delivered to and received by defendant in good condition, but, when delivered by the carrier at destination, was spoiled and badly damaged.

The defendant's answer pleaded, first, a general denial; second, a full compliance with plaintiff's icing instructions; and, third, that the damage, if any, to the meat was caused by its condition, or by its natural tendency to spoil and decay.

The plaintiff introduced evidence tending to show that the cars were delivered to the defendant with the meat in good condition, and that when they were received at destination the meat was slimy and spoiled. The evidence on both sides is to the effect that the cars were transported throughout the entire journey under their original seals, which shows that the doors were not opened in transit nor the interior of the cars disturbed in any way. In fact, it was not intended that the defendant should have, nor did it have, anything whatever to do with the inside of the cars, except to re-ice them. And the instructions to re-ice the cars did not require any entrance into or disturbance of that part of the car containing the meat, since the car was so constructed that the ice receptacles could be replenished from the outside without that.

The evidence of the parties also agrees that the car for Springfield, Ill., left Wichita, Kan., August 19th, at 5:10 p. m. and arrived at Springfield August 21, at 8:45 a. m., and was set at the Cudahy plant for unloading at 11 a. m. of that day. There was no delay en route of this car and the proof is that it went forward by the fastest trains.

Plaintiff's instructions in the bill of lading required the car to be re-iced at Argentine, Kan., and Roadhouse, Ill., and oftener if delayed; but, since there was no delay, the car was not iced except at those two places. Defendant introduced evidence tending to show that the car was iced at these two points in strict accordance with plaintiff's instructions.

The evidence on both sides shows that the car destined to Pittston, Pa., left Wichita, September 11, at 4:30 p. m. and arrived at Pittston and was delivered to the Cudahy plant at that place about 6 o'clock in the morning of September 17th. Plaintiff's instructions in this bill of lading required the car to be re-iced at Argentine, Kan., Ft. Madison, Iowa, Blue Island, Ill., Junction Yards, Mich., and Manchester, Pa., and oftener if delayed. Defendant introduced evidence tending to show that the car was properly iced at all of these places, with the possible exception of Blue Island. The proof of the icing at that place consisted of reports of the icing foreman attached as exhibits to his deposition which was taken and filed by plaintiff but not introduced by any one. Defendant introduced these exhibits but offered no part of the deposition to identify the reports or to show that they were correct, and the trial court excluded them as not being identified or supported by the testimony of any one.

The car arrived in Pittston 24 hours late; but plaintiff's manager testified that this short delay would not affect the meat if the car was properly iced and salted according to plaintiff's instructions.

At the close of all the evidence the court, upon motion of the plaintiff, struck out all of defendant's evidence as to the icing of the cars en route and all evidence as to the cars at different points along the journey for the reason that all such facts taken together constituted no defense to plaintiff's cause of action. This covered all of defendant's defensive evidence; and, in addition to striking it out, the court instructed the jury, in behalf of plaintiff, to disregard all evidence introduced by defendant as to its compliance with the icing instructions and as to the manner in which the cars were iced en route. Thereupon the court instructed the jury that they must find for the plaintiff on both counts of the petition, but left it to the jury to determine the amount of damages on each count.

Defendant makes the point that the petition fails to state a cause of action in that it contains no allegation of negligence. The contention is that the liability imposed upon the initial carrier by the Carmack Amendment is for damage "caused" by it or by any connecting carrier, and, hence, in a suit under the amendment, the plaintiff must allege negligence. But it has been held by the Supreme Court of the United States that the amendment imposed upon the initial carrier the same liability which the common law imposed. In other words, the common-law rule of liability was not changed by the act. That rule was not limited to negligence, but went beyond that and made the carrier liable for any loss or damage not the act of God or the public enemy. Adams Express Company v. Croninger, 226 U. S. 491, loc. cit. 509, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Collins v. Denver, etc., R. Co., 181 Mo. App. 213, 167 S. W. 1178. The purpose of the act was to make the first carrier liable as at common law. Storm Lake, etc., Factory v. Minneapolis, etc., R. Co. (D. C.) 209 Fed. 895, loc. cit. 903; Missouri, etc., R. Co. v. Harriman, 227 U. S. 657, loc. cit. 673, 33 Sup. Ct. 397, 57 L. Ed. 699; Kansas City, etc., R. Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683.

But in course of time an exception to the carrier's common-law liability was added, namely, that, if the property transported became damaged by reason of its own vice or inherent infirmity, and without fault on the part of the carrier, the latter was not liable. And defendant takes the position that, even in a suit based upon the carrier's common-law liability as an insurer, the real basis of the carrier's liability is negligence; and since fresh meat is of a highly perishable nature and the shipment in the present case is one where the shipper does his own original icing, loading, inspection, closing, and sealing of the car, and the carrier has no opportunity to inspect the meat and nothing to do with the inside of the car, the mere pleading of a delivery to the carrier in good condition and the delivery by it after transportation in a damaged condition should create no presumption of negligence; because the damage is as likely to have been caused by the inherent infirmity of the meat as by any negligence of the carrier. We do not agree with the statement that the real foundation of the carrier's common-law liability is negligence because, unless the loss or damage is shown to have been occasioned solely by some one of the causes which exempts the carrier from liability at common law, the carrier was held liable regardless of the care it took. But even if defendant's contention as to the real foundation of liability in the case of perishable shipments like the one at bar be correct, still the fact that fresh meat was delivered in good condition and properly iced, and was received for shipment by the carrier and was delivered by it in bad condition, would raise the presumption that something occurred to it during transit to produce that...