Michellod v. Oregon-Washington R. & Nav. Co.

• Decision Date: 13 November 1917
• Citation: 168 P. 620,86 Or. 329
• Parties: MICHELLOD v. OREGON-WASHINGTON R. & NAV. CO.
• Court: Oregon Supreme Court

168 P. 620

86 Or. 329

MICHELLOD v. OREGON-WASHINGTON R. & NAV. CO.

Supreme Court of Oregon

November 13, 1917

In Banc.

Appeal from Circuit Court, Wallowa County; J. W. Knowles, Judge.

Action by X. Michellod against the Oregon-Washington Railroad &amp Navigation Company. From a judgment for defendant, plaintiff appeals. Affirmed.

The substance of the complaint against the defendant, a common carrier, is that about January 11, 1916, at La Grande, Or in consideration of the payment to it of the ordinary freight charges, the defendant agreed to carry from that place to Joseph, Or., and there deliver to the plaintiff, 15 barrels of quarts and 25 barrels of pints of bottled temperance beverage, of the value of $500, which the plaintiff then and there delivered to the defendant, who received the same for the purposes mentioned, and "that through the negligence and carelessness of the defendant the whole of said goods were permitted to become frozen while in the defendant's care and control as a common carrier, and same was delivered to the plaintiff by the defendant in a greatly damaged condition thereby, to the plaintiff's damage in the sum of $473.60." The answer admits the defendant's character as a corporate carrier for hire between La Grande and Joseph, and that in January, 1916, it received for transportation between those points a shipment of temperance beverage called "tally." It challenges the plaintiff's first pleading in all other respects. The essence of the affirmative defense is contained in this allegation:

"That said shipment was promptly and safely transported by the defendant in a suitable and proper car over the usual route in due course of business, and without unnecessary delay from La Grande, Oregon, to Joseph, Oregon, and was then and there delivered to X. Michellod, as consignee, in the same order and condition said shipment was in when it was received by the defendant at La Grande, Oregon, except depreciation of said shipment, due to its inherent perishable character, and whatever, if any, damage occurred to said shipment, it was occasioned by the negligence of the plaintiff, and of the shipper, due to the failure of the shipper to use reasonable care to prevent said shipment from being frozen while being transferred at La Grande from the through car, and the improper manner in which the shipper loaded said shipment into the car, and his failure to use any care or caution to so load or pack said shipment as to prevent it being frozen in transit, and the failure of the plaintiff to use reasonable care to prevent said shipment from being frozen while being transferred from the car at Joseph, Oregon, to plaintiff's place of business, and the failure of the plaintiff to use reasonable care in storing said shipment in a proper storehouse at Joseph, Oregon, in order to prevent said shipment from freezing, and whatever, if any, damage occurred to said shipment was occasioned by the negligence of the plaintiff and his agents as above set forth, and the inherent perishable character of said shipment, and was not caused by or through any negligence on the part of this defendant, its agents or employés. That the shipment herein referred to is the same shipment referred to in plaintiff's complaint."

The reply denies the new matter of the answer, wherever inconsistent with the complaint. A jury trial resulted in a verdict and judgment for the defendant, and the plaintiff appeals.

John P Rusk, of La Grande, for appellant. W. A. Robbins, of Portland (A. C. Spencer and Boyd & Hawkins, all of Portland, on the brief), for respondent.

BURNETT J. (after stating the facts as above).

It seems that the goods in question were part of a carload of the beverage received from a St. Louis concern by U. Lottes, of La Grande, and reshipped by him from there to the plaintiff at Joseph. There is evidence to the effect that the goods, as they arrived at La Grande, consisted of bottles of the drink packed in barrels, which, in turn, were stowed in an ordinary freight car in fresh horse manure. At the latter place the car was opened by the consignee, who took out 40 of the barrels containing the bottled beverage and tendered them in that shape to the plaintiff for shipment, as stated, and for that purpose carried them about 150 feet to the defendant's warehouse, where the employés of the latter put them into a refrigerator car, which the defendant transported to Joseph, where it arrived about 8:30 p. m. on January 12, 1916. It was opened the next morning, when it was found that the goods were frozen to a large extent, in which condition they were delivered to the plaintiff, not, however, without his protest. The straight bill of lading under which the shipment moved recites that the property described therein as "15 bbls. carbonated beverage nonalcoholic, 6 dozen large, and 25 bbls. carbonated beverage nonalcoholic, 10 dozen small," were received "in apparent good order, except as noted, contents and condition of contents of packages unknown." By the terms of this instrument it was made subject to the conditions printed on the back thereof, in which latter it is prescribed that:

"Except in case of negligence of the carrier or party in possession (and the burden to prove freedom from such negligence shall be on the carrier or party in possession) the carrier or party in possession shall not be liable for loss, damage or delay * * * resulting from a defect or vice in the property. * * *"

We proceed to a review of the assignments of error. The first two relate to the refusal of the court to receive certain telegrams passing between the local agent of the defendant and its principal claim agent in Portland, and the conversation between the plaintiff and the former, regarding them, and relative to the proposed settlement and adjustment of the plaintiff's loss. Although all this matter was excluded by the court, the bill of exceptions does not show that the plaintiff objected to the ruling in that respect. On the contrary, the bill has a notation that there was no exception. It is therefore eliminated from the case before us.

The other specifications, aside from objections to the giving and refusal of instructions, relate to the admission by the court over the plaintiff's objection of evidence on the part of the defendant purporting to show that the car used for the transportation of the merchandise was of the kind usually employed for the carriage of perishable freight in the winter time and that it was the best known vehicle for that purpose.

"Where the destruction of, or the injury to, the goods is due to their inherent nature and qualities, or to defects therein, the carrier is not liable, if its own negligence did not occasion or contribute to the inujry. * * * With respect to perishable goods, which themselves contain the elements of destruction governing their loss or deterioration, the carrier is not an insurer, and is no more liable for destruction or injury resulting solely from the inherent infirmity in the goods than for loss entailed solely by an act of God or of the public enemy, or by the carelessness of the shipper. * * * It may perhaps also be stated as a general proposition that the carrier is not liable for loss, happening from the operation of natural causes without negligence or fault of the carrier." 10 C.J., p. 121, § 148.

In Philadelphia, etc., R. R. Co. v. Diffendal, 109 Md. 494, 72 A. 193, 458, the property in question was a shipment of peaches, and the court stated the rule applicable in this language:

"The ordinary common-law liability of a common carrier, as to most commodities committed to its custody for transportation, is that of an insurer against all risks incident to the transportation, save such as result from the act of God or the public enemy, or the fault of the shipper; but with respect to perishable goods, which themselves contain the elements of destruction occasioning their own loss or deterioration, the carrier is not an insurer, but is required to exercise reasonable care and diligence to protect the goods from injury while in its custody, as well as to deliver them with dispatch to the consignee or connecting carrier."

Schwartz v. Erie R. R. Co., 128 Ky. 22, 106 S.W. 1188, 32 Ky. Law Rep. 777, 15 L. R. A. (N. S.) 801, was a case concerning a carload of apples, and the court held in substance that where the injury to the goods is due to their own inherent nature and from natural causes, such as freezing, without fault on the part of the carrier, he is not responsible. A shipment of potatoes which froze en route was considered in McGraw v. Baltimore, etc., Ry. Co., 18 W.Va. 361, 41 Am. Rep. 696, and it was there decided that, if the injury was due to the nature of the goods, the carrier was exempt from liability, if he showed that he was free from negligence. Liability for damages to a shipment of wine from New York to St. Louis, which froze after its arrival at destination, was made to depend upon the carrier's negligence in Wolf v. Am. Express...