Dye Produce Co. v. Davis

• Decision Date: 25 June 1925
• Docket Number: No. 35406.,35406.
• Parties: DYE PRODUCE CO. v. DAVIS, DIRECTOR GENERAL OF RAILROADS.
• Court: Iowa Supreme Court

204 N.W. 228

DYE PRODUCE CO.

v.DAVIS, DIRECTOR GENERAL OF RAILROADS.

No. 35406.^a1

Supreme Court of Iowa.

June 25, 1925.

Appeal from Municipal Court of Des Moines; O. S. Franklin, Judge.

Action tried to a jury to recover damages to a carload of vegetables, alleged to have been caused by freezing, while en route from Los Angeles, Cal., to Des Moines, Iowa. Verdict was returned for defendant, and judgment rendered against plaintiff thereon for costs. Plaintiff appeals. Reversed and remanded.

Faville, C. J., dissenting. Stevens and Vermilion, JJ., dissenting in part.A. D. Pugh, of Des Moines, for appellant.

Carr, Cox, Evans & Riley, of Des Moines, for appellee.

ARTHUR, J.

[1] The action was commenced by serving original notice on an agent of the Chicago Great Western Railway Company at Des Moines, Iowa. No service of original notice was made on the Atchison, Topeka & Santa Fé Railway Company, the initial carrier, of the shipment in controversy. It was the theory of plaintiff that while the railroad systems of the country were under federal control, all were as one under the Director General of Railroads, and that service on the agent of the Chicago Great Western Railway Company was sufficient to give the court jurisdiction over the Director General of Railroads as such in control of the initial and connecting carriers, as well as the delivering carrier. Such theory is erroneous. Service of the original notice on the agent of the Chicago Great Western Railway Company did not operate to make the Director General a party defendant, as to initial and connecting carriers, and the only party in court was the Director General of Railroads in his capacity, as a terminal carrier in possession and control of the Chicago Great Western Railway Company, and he was not in court as Director General in possession and control of the initial or any other connecting carrier. Barnes' Code Supp. § 10169g (U. S. Comp. St. Ann. Supp. 1923, § 10071 1/4cc).

[2] On February 21, 1922, after verdict and after judgment had been entered, plaintiff caused an original notice to be served on the initial carrier by serving said notice on W. H. Dean, agent of the Atchison, Topeka & Santa Fé Railway Company in Lee county, Iowa. The notice gave the title of the original case, and was addressed “To the Above-Named Defendants,” and stated that “there is now on file the petition of the plaintiff in the above-entitled cause in the office of the clerk of the municipal court, etc., claiming of you the sum of $856.04 * * * on account of damages by freezing of one car of green vegetables,” etc. On March 6th, defendant entered special appearance in response to the original notice served on February 21st, for the purpose of attacking jurisdiction of the court; and later, on March 14th, moved to dismiss on the grounds that “plaintiff has failed to file a petition as required by the laws of Iowa for the commencement of an action”; that the original notice referred to the action in which verdict had been rendered and judgment entered; and that the case could not be reopened at that time, and that all pleadings therein must necessarily be considered disposed of and unavailable for the commencement of a new action. The motion to dismiss was sustained, and properly so. We know of no statute--and none is pointed out--or any recognized procedure that would permit reopening of a case by service of an original notice on a new party and trying a new case on the pleadings on file in the case that had been previously disposed of.

II. The shipment was delivered at Los Angeles, Cal., to the Atchison, Topeka & Santa Fé Railway Company by the Sutherland Fruit Company, December 5, 1919, consigned to shipper's order at Des Moines, Iowa. The shipment arrived in Des Moines on or about December 18th over the Chicago Great Western Railroad. On arrival of the shipment at Des Moines, plaintiff took up the bill of lading, which was indorsed by the shipper, at a local bank, and, relying on the description of said shipment and the bill of lading, paid the draft attached to the bill of lading, representing the invoice price of the shipment, paid the freight on the shipment, and surrendered the bill of lading to the cashier of the Chicago Great Western Railway Company. On arrival of the car at Des Moines and before surrendering the bill of lading, T. A. Dye, president and manager of plaintiff company, inspected the car, and after surrendering the bill of lading, unloaded it.

The petition alleged that when the shipment was received at Los Angeles, it was not frozen in any part, and that when it was delivered at Des Moines it was frozen and damaged by freezing. In alleging damages the petition averred that the value of said shipment in Des Moines at the time of its arrival, had it not been frozen, was $1,290.98; that the value of said shipment damaged as it was on its arrival at Des Moines was $559.83; and that plaintiff sustained damages in the amount of $731.04. Further damages were alleged for reconditioning the goods, recrating them, and rehandling the damaged goods, etc., in the amount of $125, making a total damage in the sum of $856.04. The petition alleged “that the said damage to said shipment was caused by the failure of defendant to perform his legal duty as a common carrier of goods for hire toward said shipment.” Other negligence alleged in substance was delay in shipment; failure to protect said shipment from freezing; mishandling said shipment; failure to put a stove in the car; failure to apply heat to said shipment; failure to house said shipment during cold, freezing temperature. Plaintiff also alleged its freedom from negligence in relation to said shipment. The answer of defendant was a general denial.

III. On January 12, 1922, the case came on for trial to a jury. Dye testified that he inspected the shipment personally; that the shipment was green vegetables in crates; that the crates were slatted, cracks 2 to 4 inches; that he could see through the cracks the condition of the vegetables with reference to being frozen; that the shipment was in frozen condition when delivered. On cross-examination, Dye testified that from the bill of lading he knew that the goods were delivered to the Atchison, Topeka & Santa Fé Railway Company at Los Angeles by the Sutherland Fruit Company; that he was not there to see the fruit company load into the car; that he did not know the condition of the goods when delivered to the carrier at Los Angeles; that when he first inspected the car, there was no heater in the ceiling or in the center; that he did not inspect the bunkers to see if there was heat there; that the lettuce was packed in solid crates with paper around it; that the lettuce could not be seen until the papers were torn off; that there was no paper over the radishes; that the radishes, onions, lettuce, squash, and celery were packed in ice; that the green onions had no paper around them and you could see them from the outside; that the parsley had paper around it; that the celery was in crates with no paper around it; that about half the celery was visible and the other half could not be seen without taking it out of the crates; that the squash were in tight boxes and could not be seen from the outside; that the cauliflower to be seen had to be taken out of the boxes; that other articles were in solid boxes.

Tony Spignolia, who helped to unload the car, testified that the shipment was a solid load, “all packed solid to the door clear to top and center,” within a couple of feet of the roof.

Other evidence was introduced to show the frozen and damaged condition of the vegetables and the amount of damages. Plaintiff also introduced evidence to show that no part of the shipment was frozen after they got possession of the car. Plaintiff introduced in evidence the original bill of lading for the purpose of showing by its recital the good condition, the unfrozen condition, of the goods when delivered to the Atchison, Topeka & Santa Fé Railway Company at Los Angeles. Among other things, the bill of lading recites:

“Received * * * from Sutherland Fruit Company the property * * * in apparent good order, except as noted (contents and condition of contents of packages unknown), marked, consigned, and destined as indicated, which said company agrees to carry to its usual place of delivery at said destination, if on its road, otherwise to deliver to another carrier on the route to said destination. * * * Car under ice. Re-ice at all regular icing stations to destination. * * * Shipper's load and count.”

Indorsed on the back and made part of the bill of lading are conditions, among which are that the carrier in possession of the property shall be liable for any loss or damage, except loss or damage caused by the act of God, or a public enemy. Plaintiff also introduced United States Weather Service maps and temperature records, showing the temperature at Los Angeles, at the time the shipment was loaded, on December 5th, was 48 degrees above zero. At the close of plaintiff's evidence, defendant moved for a directed verdict. In ruling on the motion, the court held, as a matter of law, that there was no competent evidence to show that when the goods were delivered to the carrier at Los Angeles they were in good condition and unfrozen; but ruled that the issue of negligence of the terminal carrier should be submitted to the jury. Plaintiff then amended the petition alleging that defendant negligently, and in violation of its duty as a common carrier, failed to put a stove in the car; failed to apply heat to said shipment; and failed to house said shipment during cold, freezing temperature. At the close of all the evidence, defendant renewed its motion for a directed verdict, which motion was overruled and the case was submitted to the jury on the alleged negligence of the terminal carrier, the Chicago Great Western Railway Company. The jury returned a verdict in favor of de...