L.E. Fosgate Co. v. Atlantic Coast Line R.R.

Decision Date29 March 1928
Citation263 Mass. 192,160 N.E. 783
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Appeal from Municipal Court of Boston, Appellate Division.

Action of contract by the L. E. Fosgate Company against the Atlantic Coast Line Railroad to recover for freezing of oranges in transit. Finding for the defendant, and case reported. From an order dismissing the report, plaintiff appeals. Affirmed.Joseph Cavanagh, of Boston, for appellant.

Arthur J. Santry, of Boston, for appellee.


This case comes before this court on the appeal of the plaintiff from an order of the appellate division of the municipal court of the city of Boston, dismissing the report of a judge of that court.

The facts disclosed by the report are in substance as follows: On December 28, 1923, the plaintiff agreed to purchase a carload of oranges from W. E. Lee & Co. of Plant City, Florida. The contract was made in Boston by a broker, one Shallow, who represented W. E. Lee & Co., and he gave the plaintiff a confirmation memorandum of the terms of sale. December 29, 1923, W. E. Lee & Co. shipped f. o. b. from Plant City, Florida, and the defendant received for transportation, ‘300 bx oranges.’ The defendant then issued to ‘W. E. Lee & Co. a ‘straight’ bill of lading whereby W. E. Lee & Co. consigned the oranges to ‘W. E. Lee & Co. at Waycross State of Ga.,’ that being a diverting point. December 30, 1923, W. E. Lee & Co. issued, and the defendant received a diversion order, diverting the shipment to ‘W. E. Lee & Co., Inc., Boston, Mass. advise L. E. Fosgate Co.,’ and requesting an exchange bill of lading in lieu of bill of lading, and that the car be sent forward over ‘ACL RF&P PA. NYNH&H.’

On December 31, 1923, W. E. Lee & Co. mailed to the plaintiff direct, at Boston, an invoice of the shipment, and enclosed a delivery order, directed to the local freight agents of the New York New Haven & Hartford Railroad, authorizing the delivery of the car to the plaintiff on its arrival. The invoice and delivery order were received by the plaintiff two or three days before the arrival of the car. At the time the invoice and order were sent, W. E. Lee & Co. drew a draft on the plaintiff for the amount of the sale price of the oranges and delivered it to a bank at Plant City to be forwarded for payment to the plaintiff. In the ordinary course of business the draft would not be, and in fact it was not, presented to the plaintiff until after the car arrived in Boston.

The plaintiff obtained possession of the car on its arrival on January 4, 1924, on a delivery order given it by W. E. Lee & Co.'s agent in Boston, Shallow, and paid the freight as required by the contract. It unloaded the car and signed a delivery check to the New York, New Haven & Hartford Railroad Company, on which, before the plaintiff signed, the freight agent noted that the boxes in the ends of the car were badly chilled. The plaintiff received the bill of lading after the oranges had been delivered or disposed of. The action is in contract to recover damages resulting from the freezing of the oranges while in transportation.

The shipment was under the Interstate Commerce Commission tariff, which required shipments of oranges to be made in ventilator cars containing vents and plugs to be operated as follows:

‘Close all vents when outside temperature falls to 32 degrees above zero; open all vents when outside temperature rises above 32 degrees above zero.’ ‘Cars arriving at division or terminal points with ventilators open and hatch plugs out at a minimum outside temperature of 28 degrees, or with ventilators closed and hatch plugs in at a maximum temperature of 34 degrees, will be considered as having been safely and properly handled in transit, but ventilators and plugs must be properly adjusted upon arrival and readjusted before leaving (if necessary) in accordance with the above instructions.’

There was evidence to warrant a finding that the vents and plugs were not closed by the New York, New Haven & Hartford Railroad Company on the arrival of the car in Boston, or in transit between New York and Boston, that the outside temperature required the closing under the instructions, and that in consequence the oranges were frozen.

On the facts it is plain the plaintiff had no right to recover against the defendant damages for the freezing, unless it can do so under the provisions of section 20 of the Interstate Commerce Act (34 U. S. Sts. at Large, 595) as amended by 38 U. S. Sts. at Large, 1197 (49 USCA § 20, par. [11]; U. S. Comp. St. § 8604a), 39 U. S. Sts. at Large, 539. Material portions of the so-called Carmack Act (section 20, as amended) read in part as follows:

‘Any common carrier, railroad, or transportation company subject to the provisions of this act receiving property for transportation from a point in one state * * * to a point in another state, * * * shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States * * * when transported on a through bill of lading.’

The bill of lading, a copy of which is attached to the record, bears the heading ‘Uniform Straight Bill of Lading,’ ‘Original-Not Negotiable.’ 38 U. S. Sts....

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3 cases
  • Paine Furniture Co. v. Acme Transfer & Storage Co., Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 28, 1935
    ... ... 235, 238, 239, 114 N.E ... 297; L. E. Fosgate Co. v. Atlantic Coast Line ... Railroad, 263 ... ...
  • Van Lierop v. Chesapeake & O. Ry. Co.
    • United States
    • Michigan Supreme Court
    • March 10, 1953
    ...line of another carrier. Such a bill of lading is both a receipt and contract of carriage and delivery. See Fosgate Co. v. Atlantic Coastline R. Co., 263 Mass. 192, 160 N.E. 783. In the case at bar, the bill of lading carried the instructions 'Carriers' Protective Service.' This service is ......
  • L. E. Fosgate Co. v. Atlantic Coast Line R.R. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 29, 1928

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