Glassman v. Chi., R. I. & P. Ry. Co.

• Citation: 147 N.W. 757,166 Iowa 254
• Decision Date: 19 June 1914
• Docket Number: No. 29516.,29516.
• Parties: GLASSMAN v. CHICAGO, R. I. & P. RY. CO.
• Court: United States State Supreme Court of Iowa

166 Iowa 254

147 N.W. 757

GLASSMAN

v.CHICAGO, R. I. & P. RY. CO.

No. 29516.

Supreme Court of Iowa.

June 19, 1914.

Appeal from District Court, Johnson County; R. P. Howell, Judge.

Action to recover for a car of apples alleged to have been damaged by freezing while in defendant's care, and because of its negligence. Trial to a jury. Verdict and judgment for plaintiff for $297.48. Defendant appeals. Reversed.Ranck & Messer, of Iowa City, F. W. Sargent, Robert J. Bannister, and J. H. Johnson, all of Des Moines, for appellant.

Edwin B. Wilson and W. R. Hart, both of Iowa City, for appellee.

PRESTON, J.

Plaintiff claims that on or about the 29th day of November, 1910, he delivered to the Atchison, Topeka & Santa Fé Railway Company, a connecting carrier of defendant, at Hutchinson, Kan., a car load of apples to be delivered to him at Iowa City. Plaintiff, Shulman, and one Saltzman each claimed to be the owner of one-third of the apples. The other two assigned their claims to plaintiff, and were to divide the proceeds of the recovery from defendant. They claim that when said car load of apples was delivered to the said Santa Fé Railway they were in good condition, and that when delivered at Iowa City the apples were unfit for sale as first-class apples because they had been chilled and frozen; that said chilling and freezing was caused by the negligence of defendant in not properly caring for said apples and using the necessary precaution in handling and shipping the same while under its control; that if the apples had been in good condition they would have been worth at Iowa City $655, but in the condition that they were delivered they were worth only $352.52. Plaintiff asks judgment for $302.48. Defendant answered that about December 3d the Santa Fé Railway Company delivered to it at Kansas City, Mo., a car load of apples to be transported and delivered to plaintiff at Iowa City; that defendant did transport said apples from Kansas City, Mo., and did deliver the same to the plaintiff within a reasonable time, and in the same condition that they were delivered to it in Kansas City; denies all other allegations. Plaintiff's theory was that defendant did not take proper care of the car; that the hatches and ventilators were left open after the car came into defendant's possession, and the apples were thereby frozen. Plaintiff testified that he saw and examined the apples at Hutchinson, and that they were all right and not frozen. There was evidence tending to show that the ventilators of the car were opened by the defendant at Kansas City, and on that day the temperature fell to 25 degrees above zero, and was considerably colder than that during the time the shipment was moving from there to Iowa City, and at one time as low as 8 above zero, or 24 degrees below freezing. There is no definite showing as to when the ventilators were closed. The evidence for defendant tended to show that the ventilators were closed the entire distance from Kansas City to Iowa City. It is claimed by the plaintiff that the apples could have been frozen and damaged at the time the shipment left Kansas City, while the ventilators were open. The car arrived at Iowa City some time towards evening of December 6th, and was set on the side track the night of December 6th. On the morning of December 7th, plaintiff opened the car, in the presence of the agent of defendant, and one or two others; plaintiff claims that at that time they were found to be frozen around the door and more or less frozen through the car. The theory of the defendant was that the car was a refrigerator car, and from its construction, being lined and padded with hair or felt, and from the condition of the weather, as shown, the apples could not have been frozen after they came into its possession, and also claimed that they were frozen, if at all, after they were set out on the side track at Iowa City, and while plaintiff was unloading them. Plaintiff was a day and a half unloading the car. The thermometer was 3 above zero on the morning of December 7th. Plaintiff testifies that the night of the 7th they put an oil stove in the car and covered the remaining apples with blankets. The court instructed the jury that the defendant would not be liable for any damage to the apples after the same were placed on the side track at Iowa City for the purpose of unloading.

Without setting out the evidence more fully, we think it was a question for the jury as to whether the apples were damaged after they came into the possession of this defendant and before the car was placed on the team track. Twenty errors have been assigned, but they have not all been argued. Those argued relate to the sufficiency of the evidence and to the action of the court in restricting the defendant in its cross-examination of some of the witnesses, and other rulings on evidence, also as to one of the instructions.

[1] Appellant has also argued the question as to whether, under the Interstate Commerce Act, and the so-called Carmack amendment thereto, defendant may be sued, it being the terminal carrier. This question we think is not properly raised. There is no pleading covering the point, and this matter was not included in the motion to direct a verdict, nor was there any instruction asked on the subject. The Carmack amendment makes the initial carrier liable. The plaintiff cites two authorities which hold that the right of action against the initial carrier is not exclusive. Those cases are: Tradewell v. C. & N. W. Ry. Co., 150 Wis. 259, 136 N. W. 794;Uber v. C., M. & St. P. Ry. Co., 151 Wis. 431, 138 N. W. 57.

In Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, in referring to sections 20 and 22 of the act, the court said:

“It was claimed that that section continued in force all rights and remedies under the common law or other statutes. But this court said of that contention what must be said of the proviso in the twentieth section, that it was evidently only intended to continue in existence such other rights or remedies for the redress of some specific wrong or injury, whether given by the Interstate Commerce Act, or by state statute, or common law, not inconsistent with the rules and regulations prescribed by the provisions of this act.”

But, as we think the question is not properly raised in this case, we ought not to now determine it. We think the only question which can be considered in this case with reference to the Interstate Commerce Act is the point as to whether a presumption obtains that the apples were in good condition when delivered to defendant, if it is shown they were in such condition en route or when delivered to the initial carrier. In instruction No. 6 the court instructed in reference to this matter, and it will be referred to later in the opinion.

[2][3] 2. Appellant complains that it was unduly restricted in its cross-examination of the three interested parties, plaintiff, Shulman, and Saltzman. Plaintiff testified that he sold about 150 or 160 bushels of the apples, and that the other two sold about the same; the apples were sold in two or three barrel lots, to customers in the city; the other two testified that they accounted for the proceeds to the plaintiff; that they sold at 50 cents, 60 cents, and 70 cents per bushel. The testimony of these three was substantially all the evidence in the case on this subject. This testimony was peculiarly within the knowledge of these witnesses, and defendant had no means of ascertaining the names of the parties to whom they were sold except by these witnesses. The defendant was entirely in the dark as to these matters. Had it been permitted to inquire, for instance, as to the persons buying the apples, it could have summoned such persons as witnesses to see what they would say as to the quality of the apples and the price paid. These matters had been referred to in direct examination, and defendant was entitled to go into the details on cross-examination. On cross-examination, defendant sought to go into the details and show the names of the parties to whom it was claimed such sales had been made, and to show how many of the apples were sold at 50 cents per bushel, and how many at 60 cents and 70 cents. Plaintiff testified that the apples would have been worth $1.25 per bushel if they had not been frozen. The court sustained objections to all such questions asked upon cross-examination. We think it was material and pertinent on the question of damages, and whether the apples sold by them were, in fact, sold for a less price because the apples were of inferior quality. The evidence for defendant tended to show that the apples were not frozen or damaged. One of the witnesses testified that he was present when the car was opened on December 7th, examined the apples, and ate some of them. The defendant claims that plaintiff's claim is a fraudulent one. We express no opinion, of course. In view of a new trial, we ought not to say more than that, in our opinion, the court erred in sustaining the objection to this line of cross-examination, and that the error was prejudicial. Refusal to allow cross-examination on relevant matters covered by the examination in chief is a denial of an absolute right, and has been generally held to be sufficient ground for reversal. It is usual, under such circumstances, to allow considerable latitude of interested witnesses, and this is the rule also where fraud is charged.

[4] It is true, of course, that the trial court has a discretion...