Pacific Fruit & Produce Co. v. Northern P. Ry. Co.

• Decision Date: 15 January 1920
• Docket Number: 15538.
• Citation: 109 Wash. 481,186 P. 852
• Court: Washington Supreme Court
• Parties: PACIFIC FRUIT & PRODUCE CO. v. NORTHERN PAC. RY. CO.

186 P. 852

109 Wash. 481

PACIFIC FRUIT & PRODUCE CO. v. NORTHERN PAC. RY. CO.

No. 15538.

Supreme Court of Washington

January 15, 1920

Department 1.

Appeal from Superior Court, Yakima County; Harcourt M. Taylor Judge.

Action by the Pacific Fruit & Produce Company against the Northern Pacific Railway Company. Judgment for defendant and plaintiff appeals. Affirmed.

Sydney Livesay, of Yakima, for appellant.

Geo. T Reid, J. W. Quick, and L. B. Da Ponte, all of Tacoma, for respondent.

MITCHELL J.

This action was disposed of by the superior court in favor of the defendant upon the refusal of the plaintiff to further plead after the entry of an order overruling a general demurrer to affirmative defenses to the amended complaint. The plaintiff has appealed.

The amended complaint alleges in effect that appellant is a corporation engaged in the fruit and produce business at Yakima, Wash., and on December 4, 1916, delivered to the respondent, a common carrier, at Yakima, Wash., a carload of apples to be transported to Wichita, Kan.; that at the time of delivery respondent had in effect, governing such shipments, a tariff which provided for two kinds of service and for which different charges were made; that one kind of service was known as 'option 1,' and was upon condition that the shipper assume responsibility for loss or damage occasioned by frost, freezing, or overheating, and the other kind was known as 'option 2,' which provided that the carrier assumed the responsibility for loss or damage occasioned by frost, freezing, or overheating; that the charge for option 2 service was $24 in excess of the other kind, between the places mentioned; that at the time of delivering the carload of apples appellant demanded that it be permitted to enter into option 2 contract, which it was ready, willing, and able to perform, but that respondent refused to enter into such contract and refused to transport the shipment under any contract other than option 1, which appellant was compelled to, and did, accept; that respondent, disregarding its duty as a common carrier and knowing the perishability of the shipment, refused to furnish a suitable car for the service required, and that respondent knew the car provided was unsuitable for safely carrying the apples in the event there was severe cold weather and freezing temperature to which the apples would be subjected; that in the course of transportation the apples were frostbitten and frozen, causing the damages complained of in this action; that a claim for the amount of the damages was presented to the respondent, which refused to pay the same or any part thereof.

In the first affirmative defense--the only one we deem it necessary to consider--the respondent alleged, in effect, that it is a common carrier engaged in interstate commerce; that at the date of receiving the shipment in question, and at all times since November 8, 1915, it had in effect a tariff providing for two kinds of service for the transportation of perishable freight, one called option 1, and the other option 2; that under the terms of option 1 contract the shipper assumes liability for loss due to frost or freezing, but, if in the shipper's judgment it is necessary to use lining, false flooring, or to install stoves, he might do so at his own expense, provide fuel (being allowed a deduction from the weight of the car to offset the weight of such equipment), and a caretaker would be transported by the carrier to take care of the shipment, and the caretaker and stove would be returned free of charge; that under the terms of option 2 contract the carrier assumes liability for loss due to frost or freezing, but in such case there is a charge over the made for service under option 1 contract; that under its published tariff it could lawfully transport the apples only under one or the other of said two contracts; that where the shipper desired to ship under option 2, it was the duty of respondent to provide a refrigerator car, which was the only car constructed so that apples could be safely transported in transcontinental movement in the month of December, and the only kind of car in which apples could be moved, or ever have been moved, under option 2 contract--which fact was well known to both parties at all times--and that respondent never had undertaken the responsibility entailed by option 2 contract, except for shipments moving in refrigerator cars; that prior to December, 1916, it had made ample provision for moving the apple crop of the Yakima country, and at that time it owned enough refrigerator cars to answer all demands it could or did reasonably anticipate, and except for an unavoidable shortage of them would have been able to furnish one to appellant for its shipment; that in the month of September, 1916, there was a heavy east-bound movement of soft fruits and other perishable freight from Yakima, that required refrigerator cars furnished by respondent for the safe transportation of such fruit destined to points beyond its line; that it was unsafe and impracticable to transfer such freight to the cars of connecting carriers, and in addition respondent was a party to duly published through joint rates that necessitated its refrigerator cars going through to destination, and further that the connecting carriers did not have refrigerator cars into which the fruit could have been transferred; that in prior years its refrigerator cars had always been returned in ample time to remove the Yakima apple crop during the usual shipping...