Hewitt v. Chicago, Burlington & Quincy R'Y Co.

• Decision Date: 05 June 1884
• Citation: 19 N.W. 790,63 Iowa 611
• Parties: HEWETT v. THE CHICAGO, BURLINGTON & QUINCY R'Y CO
• Court: Iowa Supreme Court

19 N.W. 790

63 Iowa 611

HEWETT v. THE CHICAGO, BURLINGTON & QUINCY R'Y CO

Supreme Court of Iowa, Des Moines

June 5, 1884

Appeal from Montgomery District Court.

PLAINTIFF sues for the value of a car load of potatoes delivered by him to defendant for shipment, and which were destroyed by being frozen through defendant's negligence, as he alleges, in failing to forward them promptly to their destination. The case was tried to a referee, who found that defendant was liable. Defendant moved to set aside the referee's report on the grounds that the findings of fact and conclusions of law were not supported by the evidence, and of alleged errors committed on the trial in the admission and exclusion of testimony. The district court overruled the motion and entered judgment for plaintiff on the report. Defendant appeals.

REVERSED.

Smith McPherson, for appellant.

C. E Richards, for appellee.

OPINION

REED, J.

I.

The property was shipped at Lenox, in this state, and was consigned to plaintiff at Omaha, Nebraska. At the time the property was delivered to defendant, plaintiff paid the freight charges thereon to its destination, and received from defendant the following bill of lading:

"LENOX IOWA, November 10th, 1880.

"Received from H. H. Hewett, in apparent good order, by the Chicago, Burlington & Quincy Railroad Company, to be transported to Council Bluffs, Iowa, the following articles as marked and described below, subject to the general rules of said company, and the conditions and regulations of their public freight tariff applying on shipments of freight from this station to the destination named; it being expressly agreed and understood that the said Chicago, Burlington & Quincy Railroad Company, in receiving the said package to be forwarded as aforesaid, assumes no other responsibility for their safety than may be incurred on this road. Marks and consignee, H. H. Hewett, Omaha, Nebraska. Description of articles, as given by the consignee: Car Q. R., weight 26,500. Q. 1808. Paid to apply, $ 50.35. Prepay & R. $ 10.00."

On the trial, the referee permitted plaintiff to testify, against defendant's objection, that he made a bargain with defendant's agent at Lenox to ship a car of potatoes at 19 cents per hundred from Lenox to Omaha. This testimony should have been excluded. The bill of lading embodies the contract between the parties. By its terms the undertaking of defendant was to transport the property to Council Bluffs. That was the terminus of its line, and it expressly limited its liability to such responsibility for the safety of the property as might be incurred on its own road. As the property was consigned, however, to a point beyond the terminus of defendant's road, it was bound to deliver it at that point within a reasonable time to some other carrier, to be forwarded to its destination; but it was not liable for injuries which might be caused by the negligence of such other carrier after the property was delivered to it. See Mulligan v. The Ill. C. R. Co., 36 Iowa 181.

The parol evidence tended to prove a different undertaking by defendant. It tended to prove an undertaking to convey the property to Omaha. The referee found as a conclusion of law "that defendant is liable to the plaintiff for damages sustained by him by reason of negligence in not transporting said potatoes to their destination within a reasonable time." This conclusion must have been based on the parol evidence, rather than the written contract. Its admission, then, was prejudicial as well as erroneous.

II. The property was received by defendant at Lenox on the 10th of November, and it arrived in Council Bluffs on the 11th, and on the 15th it was delivered to plaintiff, in Omaha, by the Union Pacific Railroad Company, the carrier which forwarded it from Council Bluffs. The weather was warm and pleasant on the 10th when the defendant received the property, but between that and the 15th it turned cold, and the potatoes were badly frozen when plaintiff received them in Omaha. It was material, therefore, to determine whether the injury was occasioned by the failure of defendant to deliver the property to the Union Pacific Company within a reasonable time after its arrival in Council Bluffs, or by the failure of the latter company to deliver it to plaintiff in Omaha within a reasonable time after it received it from defendant. When the car containing the potatoes arrived in Council Bluffs on the 11th, it was at once placed by defendant's yard-master in the yard used for the delivery of freight to the Union Pacific Company. By the usage of the companies, the placing of a car in this yard is regarded as a delivery to the latter company; but defendant's yard-master was informed on the 12th that the Union Pacific Company refused to forward the car in question, for the reason that it was out of repair. He immediately had it removed from the yard to a track belonging to defendant, where it was repaired. The yard-master testified on the trial that the repair of the car was completed, and that it was taken back to the yard and delivered to the Union Pacific Company, on the afternoon of the 13th. A receipt for the car from the Union Pacific Company to defendant was introduced in evidence. This receipt was dated on the 11th, but the evidence showed that it was not delivered to defendant until the 14th. The referee found that the car was delivered to the Union Pacific Company on the 14th. This finding must have been based on the fact that the receipt from that company to defendant for the car was delivered on that day; for it is the only evidence of the time of the delivery of the car, except the testimony of the yard-master, who swears that it was delivered...