Green-Wheeler Shoe Co. v. Chi., R. I. & P. Ry. Co.

• Decision Date: 09 March 1906
• Citation: 130 Iowa 123,106 N.W. 498
• Court: Iowa Supreme Court
• Parties: GREEN-WHEELER SHOE CO. v. CHICAGO, R. I. & P. RY. CO.

130 Iowa 123

106 N.W. 498

GREEN-WHEELER SHOE CO.

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

Supreme Court of Iowa.

March 9, 1906.

Appeal from District Court, Webster County; J. H. Richard, Judge.

Action to recover the value of two parcels of goods delivered by plaintiff to defendant at Ft. Dodge, Iowa, one parcel to go to Booneville, Mo., and the other to Chanute, Kan., one of which it is alleged was lost and the other damaged by defendant's negligence. The case was tried on an agreed statement of facts and judgment was rendered for defendant. Plaintiff appeals. Reversed.Wright & Nugent, for appellant.

Carroll Wright, John I. Dille, and Kenyon & O'Connor, for appellee.

McCLAIN, C. J.

In the agreed statement on which the case was tried without other evidence being introduced it is stipulated that the defendant was guilty of negligent delay in the forwarding of the goods of plaintiff from Ft. Dodge to Kansas City, where they were lost or injured on May 30, 1903, by a flood which was so unusual and extraordinary as to constitute an act of God, and that if there had been no such negligent delay the goods would not have been caught in the flood referred to or damaged thereby.

We have presented for our consideration, therefore, the simple question whether a carrier who by a negligent delay in transporting goods has subjected them, in the course of transportation, to a peril which has caused their damage or destruction, and for the consequence of which the carrier would not have been liable had there been no negligent delay intervening, is liable for the loss. On this question there is a well-recognized conflict in the authorities. In several well-considered cases decided by courts of high authority it was decided, while the question was still new, that the negligent delay of the carrier in transportation could not be regarded as the proximate cause of an ultimate loss by a casualty which in itself constituted an act of God, as that term is used in defining the carrier's exemption from liability, although had the goods been transported with reasonable diligence they would not have been subjected to such casualty, and these cases are very similar to the one before us inasmuch as the loss in each instance was due to the goods being overtaken by an unprecedented flood for the consequence of which the carrier would not be responsible. Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695;Denny v. New York Cent. R. Co., 13 Gray (Mass.) 481, 74 Am. Dec. 645; Railroad Co. v. Reeves, 10 Wall. 176, 19 L. Ed. 909;Daniels v. Ballantine, 23 Ohio St. 532, 13 Am. Rep. 264;Hunt v. Missouri, K. & T. R. Co. (Tex. Civ. App.) 74 S. W. 69;Gleeson v. Virginia Midland R. Co., 5 Mackey (D. C.) 356. These cases are predicated upon the view that if the carrier could not reasonably have foreseen or anticipated that the goods would be overtaken by such a casualty as a natural and probable result of the delay, then the negligent delay was not the proximate cause of the loss, and should be disregarded in determining the liability for such loss. A similar course of reasoning has been applied in other cases, where the loss has been due immediately to some cause such as accidental fire involving no negligence on the part of the carrier and within a valid exception in the bill of lading, but the goods have been brought within the peril stipulated against by negligent delay in transportation. Hoadley v. Northern Transp. Co., 115 Mass. 304, 15 Am. Rep. 106;Yazoo & M. V. R. Co. v. Millsaps, 76 Miss. 855, 25 South. 672, 71 Am. St. Rep. 543; General Fire Extinguisher Co. v. Carolina & N. W. R. Co., 137 N. C. 278, 47 S. E. 208. For similar reasons it has been held that loss of or injury to the goods by reason of their inherent nature, as by freezing or the like, will not render the carrier liable, even after negligent delay in transportation, if such casualty could not have been foreseen or anticipated as the natural and probable consequence of such delay. Michigan Cent. R. Co. v. Burrows, 33 Mich. 6;Herring v. Chesapeake & W. R. Co., 101 Va. 778, 45 S. E. 322.

On the other hand, it was held by the Court of Appeals of New York in a case arising out of the same flood which caused the destruction of the goods involved in Denny v. New York Cent. R. Co., 13 Gray (Mass.) 481, 74 Am. Dec. 645, supra, that the preceding negligent delay on the part of the carrier, in consequence of which the goods were overtaken by the flood, was sufficient ground for holding the carrier to be liable for the loss. Michaels v. New York Cent. R. Co., 30 N. Y. 564, 86 Am. Dec. 415;Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 426. And the same court has adhered to this view in case of a loss by fire covered by valid exception in the bill of lading. Condict v. Grand Trunk R. Co., 54 N. Y. 500. The Illinois Supreme Court has consistently followed the rule of the New York cases in holding that negligent delay subjecting the goods to loss by the Johnstown flood rendered the carrier liable (Wald v. Pittsburg, C., C. & St. L. R. Co., 162 Ill. 545, 44 N. E. 888, 35 L. R. A. 356, 53 Am. St. Rep. 332) and likewise that similar delay rendered the carrier liable for damage to the goods by freezing. Michigan Cent. R. Co. v. Curtis, 80 Ill. 324. The Alabama and Kentucky courts have held that a destruction by fire within a valid exception in the bill of lading would not excusethe carrier if by negligent delay in transportation the goods had been subjected to such casualty. Louisville & N. R. Co. v. Gidley, 119 Ala. 523, 24 South. 753;Hernsheim v. Newport News & M. V. Co., 35 S. W. 1115, 18 Ky. Law Rep. 227. In Missouri the Supreme Court has followed or approved of what may be designated as the New York rule, under a variety of circumstances. Davis v. Wabash, St. L. & P. R. Co., 89 Mo. 340, 1 S. W. 327;Pruitt v. Hannibal & St. J. R. Co., 62 Mo. 527;Read v. St. Louis, K. C. & N. R. Co., 60 Mo. 199. And the St. Louis Court of Appeals in that state has applied the same rule in case of a loss by freezing. Armentrout v. St. Louis, K. C. & N. R. Co., 1 Mo. App. 158. But the Kansas City Court of Appeals in a case of loss by flood has followed the Massachusetts and Pennsylvania cases. Moffatt Com. Co. v. Union Pac. R. Co. (Mo. App.) 88 S. W. 117. And the St. Louis Court of Appeals seems to have recently recognized the same rule. Grier v. St. Louis Merchants' Bridge Terminal R. Co., 108 Mo. App. 565, 84 S. W. 158. In West Virginia the Supreme Court has held that negligent delay renders the carrier liable for a subsequent loss by freezing. McGraw v. Baltimore & O. R. Co., 18 W. Va. 361, 41 Am. Rep. 696. In Minnesota the court has recently reviewed the whole question in a case involving the loss of goods by the same flood which caused the loss for which the present suit is brought and has reached the conclusion that the previous negligent delay of the carrier which caused the goods to be subjected to the peril of the flood “concurred and mingled with the act of God” to such an extent that the carrier was precluded from relying upon the act of God as a defense. Bibb Broom Corn Co. v. Atchison, T. & S. F. R. Co. (Minn.) 102 N. W. 709, 69 L. R. A. 509.

The irreconcilable conflict in the authorities is recognized by text-writers, and while the weight of general authority has in many cases been said to support the rule announced in Massachusetts and Pennsylvania cases (1 Thompson, Negligence, § 74; Schouler, Bailments [Ed. 1905] § 348; Hale, Bailments and Carriers, 361; 6 Cyc. 382; notes in 36 Am. St. Rep. 838), other authorities prefer the New York rule (Hutchinson, Carriers [2d Ed.] § 200; Ray, Negligence of Imposed Duties, 177). In the absence of any express declaration of this court on the very point, and in view of the fact that in most recent cases the conflict of authority is still recognized (see 5 Cur. Law, 517) it seems necessary that the reasons on which the two lines of cases are supported shall be considered in order that we may now reach a conclusion which shall be satisfactory to us. Mere negligence will not render one person liable to another for a loss which the latter would not have sustained had there been no such negligence, unless the negligence consists in some violation of a duty which the one person owes to the other. Dubuque Wood & Coal Ass'n v. City and County of Dubuque, 30 Iowa, 176;St. Louis, I. M. & S. R. Co. v. Commercial Ins. Co., 139 U. S. 223, 11 Sup. Ct. 554, 35 L. Ed. 154. And, on the other hand, it is well settled that if the negligence of one person with reference to the duty owed to another concurs with an accidental cause resulting in injury to another to whom such duty is owed the negligent person must answer for the consequences as though his negligence were the sole cause of the loss. Savannah, F. & W. R. Co. v. Commercial Guano Co. (Ga.) 30 S. E. 555;Thomas v. Lancaster Mills, 71 Fed. 481, 19 C. C. A. 88;New Brunswick Steamboat Co. v. Tieres, 24 N. J. Law, 697, 64 Am. Dec. 394;Tierney v. New York Cent. & H. R. R. Co., 76 N. Y. 305;Williams v. Grant, 1 Conn. 487, 7 Am. Dec. 235; 1 Thompson, Negligence, §§ 68, 73.

The real difficulty seems to be in determining to what extent, if at all, it is necessary that the negligent party must have been able to foresee and anticipate the result of his negligent act in order to render him liable for the consequences thereof resulting from a concurrence of his negligence and another cause for...