New England Fruit & Produce Co. v. Hines

• Decision Date: 21 February 1922
• Parties: NEW ENGLAND FRUIT & PRODUCE CO. v. HINES, Director General of Railroads.
• Court: Connecticut Supreme Court

116 A. 243

97 Conn. 225

NEW ENGLAND FRUIT & PRODUCE CO. v. HINES, Director General of Railroads.

Supreme Court of Errors of Connecticut.

February 21, 1922

Appeal from Superior Court, Hartford County; James H. Webb, Judge.

Action by the New England Fruit & Produce Company against Walker D Hines, Director General of Railroads. Judgment for defendant and plaintiff appeals. Error. New trial ordered.

Jacob Schwolsky, of Hartford, for appellant.

James W. Carpenter, of New Haven, for appellee.

CURTIS, J.

This is an action to recover damages arising from the dead-ripe and decayed condition in which a shipment of a carload of green tomatoes arrived in Hartford on July 7, 1919, which shipment was delivered in good order to the carrier at Fruitlands Tenn., on June 28, 1919.

This was a shipment in interstate commerce.

Since the amendment of June 29, 1906, to the Interstate Commerce Act known as the Carmack Amendment (U. S. Comp. St. § § 8604a, 8604aa), the rights and liabilities of the parties in actions relating to interstate shipments in either the state or federal courts depend upon acts of Congress, the bill of lading, and the common-law rules as accepted and applied in federal tribunals. ^[1] Cincinnati, etc., Ry. Co. v. Rankin, 241 U.S. 319, 36 Sup.Ct. 555, 60 L.Ed. 1022, L.R.A. 1917A, 265.

The Carmack Amendment as construed by the federal courts was passed with the intent to bring interstate shipments and contracts of interstate shipments under one uniform rule of law, not subject to the various policies and legislation of particular states.

The statutes of the several states and the policies of the common law therein enforced by their courts in regard to interstate shipments are made subordinate to the Acts of Congress and to the common-law rules and policies accepted and applied by the Federal tribunals. Adams Express Co. v. Croninger, 226 U.S. 491, 33 Sup.Ct. 148, 57 L.Ed. 314, 44 L.R.A. (N. S.) 257.

The common law as to common carriers as accepted and applied in federal tribunals in harmony with the Carmack Amendment is still operative. Cincinnati, etc., Ry. Co. v. Rankin, 241 U.S. 319, 36 Sup.Ct. 555, 60 L.Ed. 1022, L.R.A. 1917A, 265; Galveston Ry. Co. v. Wallace, 223 U.S. 481, 32 Sup.Ct. 205, 56 L.Ed. 516; New York P. & N. Ry. Co. v. Penn. Exchg.. 240 U.S. 34, 36 Sup.Ct. 230, 60 L.Ed. 511, L.R.A. 1917A, 193; C., M. & St. P. Ry. Co. v. Solan, 169 U.S. 133, 18 Sup.Ct. 289, 42 L.Ed. 688; Chicago Ry. Co. v. Collins Co., 249 U.S. 186, 39 Sup.Ct. 189, 63 L.Ed. 552; Louisville Ry. Co. v. Warfield & Lee, 6 Ga.App. 550, 65 S.E. 308.

The Carmack Amendment does not oust the state courts of jurisdiction in cases of interstate shipments, but requires that the rights and liabilities of the parties, in actions in a state court for damages arising from an interstate shipment, shall be determined in accord with the federal statutes relating to interstate shipments and by the common-law rules as to common carriers' liability accepted and applied in the federal courts. Cincinnati, etc., Ry. Co. v. Rankin, 241 U.S. 319, 36 Sup.Ct. 555, 60 L.Ed. 1022, L.R.A. 1917A, 265; Galveston Ry. Co. v. Wallace, 223 U.S. 481, 32 Sup.Ct. 205, 56 L.Ed. 516.

There is " no doubt of the general principle that matters respecting the remedy-such as the form of the action, sufficiency of the pleadings, rules of evidence-*** depend upon the law of the place where the suit is brought. *** But matters of substance and procedure must not be confounded because they happen to have the same name." The burden of proof is often more than a matter of procedure. Central Vt. Ry. Co. v. White, 238 U.S. 507, 35 Sup.Ct. 865, 59 L.Ed. 1433, Ann.Cas. 1916B, 252; Barnet v. New York C. & H. R. Ry. Co., 222 N.Y. 198, 118 N.E. 625.

This action, based on an interstate shipment, may therefore be tried in our courts under our rules of pleading and evidence, but upon the trial our courts must be governed by the federal statutes relating to interstate shipments and by the common-law rules as to common carriers' liability accepted and applied in the federal courts.

The shipper in his complaint in this case alleges a delivery on June 28, 1919, in good order to the defendant, a common carrier, at Fruitlands, Tenn., of a car of green tomatoes for transportation to Hartford, Conn., and that the car of tomatoes was tendered for delivery at Hartford in a dead-ripe, decayed, and spoiled condition on July 7, 1919.

He alleges in effect as grounds of recovery that such condition of the tomatoes was caused as follows:

(1) By the failure of the defendant carrier to transport and deliver the tomatoes within a reasonable time.

(2) That the bill of lading provided that the defendant should keep the vents and plugs of the car open for ventilation during transportation, and that the defendant failed to do so.

(3) That the defendant negligently failed to ventilate the car sufficiently during transportation to protect the tomatoes from decay before delivery.

The first and second grounds of recovery are contractual. The first is based on the contract implied at common law to deliver the goods within a reasonable time, where there is no express agreement as to time of delivery.

" A carrier is not an insurer against delay in the transportation of goods." 10 Corpus Juris, 283.

The duty to deliver within a reasonable time is an implied contract ingrafted by the law upon the common-law duty of a carrier to carry safely. New York & N. Ry. Co. v. Penn. Exch., 240 U.S. 34, 36 Sup.Ct. 230, 60 L.Ed. 511, L.R.A. 1917A, 193; 10 Corpus Juris, 283; Hutchinson on Carriers (3d Ed.) vol. 2, § 651.

The second ground of recovery is based on an express contract, alleged as appearing in the bill of lading, that the carrier would keep the vents and plugs of the car open for ventilation during transportation.

As to these grounds of recovery based upon a breach of contract, the burden of proof is upon the plaintiff to establish the breaches claimed.

There was no error therefore in the charge of the court to that effect as to the contract to keep the vents and plugs open.

The fifth and twentieth assignments of error are therefore untenable.

The third ground of recovery as alleged in the complaint is in effect that the defendant neglected to ventilate the car sufficiently during transportation to protect the tomatoes from decay before delivery.

The shipment was of perishable goods with an inherent vice, namely, their tendency to ripen and decay. In the absence of a stipulation in the bill of lading as to the burden of proof, the burden of proof under the federal rule would seem to fall upon the shipper to prove that the negligence of the carrier was a proximate cause of the decay of the tomatoes before their delivery. Clark v. Barnwell, 12 How. 272, 13 L.Ed. 985; Transportation Co. v. Downer (1870) 11 Wall. 129, 20 L.Ed. 160; Railroad Co. v. Reeves, 10 Wall. 176, 19 L.Ed. 909; Barnet v. New York C. & H. Ry Co., 222 N.Y. 198, 118 N.E. 625.

Although the plaintiff did not base its action in its complaint upon the contract of affreightment (the bill of lading) exclusively or make it part of its complaint, nor did the defendant carrier refer to it in its answer, yet in the finding of the court as to what facts the parties offered evidence to prove and claimed to have proved it appears that the plaintiff offered the bill of lading in evidence and made it an exhibit in the case, and that the defendant offered evidence in regard to the issuance of the waybill.

In view of these facts we are of the opinion that the rule as to the burden of proof provided in the bill of lading should be deemed the rule applicable to this case.

Furthermore, there is law to the effect that since the Interstate Commerce Commission prescribed a uniform bill of lading, all shipments should be deemed to be under the rights and liabilities of the uniform bill of lading. Standard T. Co. v. Penn. Ry., 88 N.J.Law, 257, 95 A. 1002, L.R.A. 1916C, 606.

This, however, would not mean that if the carrier relied upon any stipulations in the bill of lading to exempt it from a common-law liability, it need not plead the same under our system of Code pleading. 10 Corpus Juris, 368.

The bill of lading in this case provides as follows, in part:

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

The court therefore properly charged the jury as follows:

" While carriers of perishable fruits and vegetables, as I have said, are not insurers in such cases against loss or damage arising from the well-known tendency of such products to decay, yet, as processes of decay may be retarded or hastened by the acts of the carrier, the burden is on the carrier to show that the damaged condition in which the claimed shipment of tomatoes were when they arrived in Hartford was not the result of its own negligence or lack of due and reasonable care under all of the circumstances surrounding this shipment as disclosed by the evidence."

No question is raised in this appeal as to the power of the parties, or of the Interstate Commerce Commission, in its uniform bill of lading, to take such a stipulation as to the law in regard to the burden of proof to be applied in a trial upon a case between a shipper and carrier. This has been questioned in Alaska S. S. Co. v. United States (D. C.) 259 F. 713, and 253 U.S. 113, 40 Sup.Ct. 448, 64 L.Ed. 808. See, also, Gaffney v. Royal N. of A.. 31 Idaho, 549, 174 P. 1014; Chicago, M. & St. P. Ry. v. McCaull-Dinsmore Co., 253 U.S. 97, 40 Sup.Ct. 504, 64 L.Ed. 801.

The plaintiff does not complain of the charge just...