Gardner v. Mid-Continent Grain Co.

• Decision Date: 16 June 1948
• Docket Number: No. 13647.,13647.
• Citation: 168 F.2d 819
• Parties: GARDNER v. MID-CONTINENT GRAIN CO.
• Court: U.S. Court of Appeals — Eighth Circuit

168 F.2d 819 (1948)

GARDNER v. MID-CONTINENT GRAIN CO.

No. 13647.

Circuit Court of Appeals, Eighth Circuit.

June 16, 1948.

Charles M. Miller, of Kansas City, Mo., for appellant.

Solbert M. Wasserstrom, of Kansas City, Mo. (Philip L. Levi, of Kansas City, Mo., on the brief), for appellee.

Before SANBORN, JOHNSEN, and STONE, Circuit Judges.

JOHNSEN, Circuit Judge.

Mid-Continent Grain Co., as consignee, sued the trustee of the Alton Railroad Co., under 49 U.S.C.A. § 20(11), for damages from delay in some shipments of soybeans. On a trial without a jury, the court gave a judgment for the Grain Co., and the trustee has appealed.

Three carloads of soybeans are involved, made as separate shipments, on through bills of lading, from Decatur, Indiana, to Kansas City, Missouri. The Pennsylvania Railroad Co., as initial carrier, transported the cars from Decatur to Chicago, and the Alton Railroad Co., as delivering carrier, transported them from Chicago to Kansas City.

The first car was delivered by the shipper to the Pennsylvania at Decatur on October 31, 1944, and it reached Chicago that night. The other two cars were delivered to the Pennsylvania on November 1, 1944, and they reached Chicago by the following morning.

The bills of lading contained a provision, "Stop in Chicago, Ill. for inspection,"¹ and the Pennsylvania gave notice of arrival on all three of the cars to the Illinois State Grain Inspection Department at Chicago on November 3, 1944. That Department made an inspection of each car by sample tests on November 4, 1944, and on the same day it notified the Joint Agency of the Railroads at Chicago that it had completed its inspections. The Pennsylvania allowed the three cars to stand in its yards at Chicago until November 17, 1944, when it turned them over to the Alton for hauling to Kansas City. They arrived in Kansas City on November 20, 1944.

When the soybeans were examined by the consignee after their arrival, the contents of all three cars were found to have rotted and spoiled. The consignee refused to accept them, and the Alton was obliged to dump them as valueless. Before shipment, the soybeans had been in storage in a warehouse at Decatur, whose roof had burned, and the soybean bin had been subjected to water used in putting out the fire. Most of the soybeans in the bin were subsequently sold at Decatur, but those here involved were part of the final salvage debris and were being sent to Kansas City for reconditioning from the fire and water damage.

The trial court made findings that "a reasonable time for the transportation of each of the (three) cars from Decatur, Indiana, to Kansas City, Missouri, via Chicago, with a stop at Chicago for inspection, was seven days"; that the soybeans in each car, at the time the cars were delivered to the Pennsylvania by the shipper at Decatur, were in a damp condition such as would cause them to begin heating in a closed car within two or three days and would result in their rotting in a week to ten days thereafter if they were not aired and dried; that the inspection report of the Illinois State Grain Inspection Department at Chicago on the first car showed that the soybeans were of distinctly low quality, were musty and heating, had a moisture content of 18.3 per cent, and were damaged in excess of 8 per cent; that the report on the second car showed those beans similarly were of distinctly low quality, had a moisture content of 20.3 per cent, and were damaged in excess of 8 per cent; that the report on the third car likewise showed that those beans were of distinctly low grade, were musty and heating, had a moisture content of 18.8 per cent, and were damaged in excess of 8 per cent; that copies of these inspection reports were given by the Illinois State Grain Inspection Department to the Joint Agency of the Railroads at Chicago, as agent of the carrier, and the Pennsylvania thus "had notice of the condition of the contents of all (three) cars at Chicago"; that under these circumstances the delay of the Pennsylvania in allowing the cars to stand in its Chicago yards until November 17, 1944, before turning them over to the Alton, constituted negligence; that such negligence was in the situation a proximate cause of the loss of the soybeans to the consignee; that if the soybeans had been transported and delivered within a reasonable time it would have been possible to have reconditioned them; and that if the soybeans had been thus reconditioned they would have been salable and would have had a reasonable market value, after deducting the costs of reconditioning, in the amount for which the consignee was given judgment.

It is a matter of common knowledge, of course, of which we may take judicial notice, that ordinary soybeans are not perishable goods and that they will not rot and spoil from being in a grain car for such a period as was here consumed in their transportation from Decatur to Kansas City. Admittedly, only the unnatural dampness of these soybeans from the water of the fire caused them to rot and spoil in the grain cars within that time. And clearly, the result is not one that reasonably could be said to have been capable of being anticipated, either generally or specifically, by anyone who was without knowledge of the special condition of the beans.

It is the general rule that "damages recoverable for delay in transportation must be such as might reasonably have been contemplated by the parties at the time the contract of carriage was made * * *."² 10 C.J., Carriers § 456, p. 315. "One reason for this rule is that the party undertaking the delivery is held to assume, when he makes his contract, a liability only for those damages which would, in the usual and ordinary course of things, result from his failure to perform, because it is only these that he is required to foresee. * * * Another reason for requiring the notice (of circumstances calling for prompt transportation) is to give the carrier an opportunity to protect itself by special precaution against delay in transportation, or to enable it to decline the shipment if by reason of unusual conditions it cannot transport promptly." 13 C.J.S., Carriers, § 229, page 451.

While it usually is said that only such damages can be recovered for delay in transportation as may reasonably be regarded as having been within the contemplation of the parties at the time the contract of carriage was made, liability in relation to special circumstances has some times been recognized on the basis of notice to the carrier after the transportation has commenced. See Am.Jur., Carriers § 517, p. 737, 738; 13 C.J.S., Carriers § 229b. Without regard to whether such a subsequent notice is capable of increasing the liability of a carrier in contract, it would seem that a failure to act, in relation to certain special circumstances at least (such as the condition of the soybeans in the present case), after notice at a time and under conditions that reasonably would enable the carrier to act to prevent or diminish damages, might make it possible to convert the action into one of tort for negligence.

It must be borne in mind, however, that failure to transport with reasonable dispatch is under ordinary circumstances only a breach of the contract of carriage, and that the right to damages in such a situation is limited by the rule which has been set out above. 9 Am.Jur., Carriers § 509, p. 730; Missouri, K. & T. R. Co. v. Truskett, 8 Cir., 104 F. 728, 44 C.C.A. 179, affirmed 186 U.S. 480, 22 S.Ct. 943, 46 L.Ed. 1259. Nor can the scope of the damage right be extended by purporting to cast such a mere failure to move goods with reasonable dispatch as an action for negligence. Cf. Georgia, F. & A. R. Co. v. Blish Milling Co., 241 U.S. 190, 197, 36 S.Ct. 541, 60 L.Ed. 948. Some additional element of duty owed from knowledge of special circumstances and not acted upon, or some other act done or omitted to be done in relation to the property, beyond simple delay in transportation in an ordinary situation, is necessary to give rise...