Peninsula Produce Exch. v. American Ry. Express Co., Inc.

• Decision Date: 26 February 1925
• Docket Number: 85.
• Citation: 128 A. 403,147 Md. 424
• Parties: PENINSULA PRODUCE EXCHANGE v. AMERICAN RY. EXPRESS CO., INC.
• Court: Maryland Court of Appeals

128 A. 403

147 Md. 424

PENINSULA PRODUCE EXCHANGE v. AMERICAN RY. EXPRESS CO., INC.

No. 85.

Court of Appeals of Maryland

February 26, 1925

Appeal from Circuit Court, Wicomico County; Joseph L. Bailey and Robert F. Duer, Judges.

"To be officially reported."

Action by the Peninsula Produce Exchange against the American Railway Express Company, Inc. Judgment for defendant, and plaintiff appeals. Affirmed. Plaintiff appellant's granted prayers were as follows Plaintiff's First Prayer.

"The plaintiff prays the court to instruct the jury that, if they shall believe from the evidence that the Peninsula Produce Exchange, the plaintiff in this case delivered to the American Railway Express Company Incorporated, the defendant in this case, at Queponco, Md., on the 9th day of June, 1920, a carload consisting of 232 crates of strawberries, there being 32 quarts of strawberries in each of said crates, in good condition and contained in a refrigerator car containing a sufficient and adequate supply of ice for the proper refrigeration of said strawberries; that the defendant received said strawberries and agreed to carry the same to Carr Bros. Company at the city of Portland, state of Maine, and to keep the same fully iced to destination, and issued to the plaintiff the express receipt therefor offered in evidence; and shall further find that the said strawberries were by the defendant delivered to said Carr Bros. Company at the city of Portland aforesaid in a damaged condition, then the jury are instructed that the presumption of law is that said strawberries were damaged while in the possession and care of the defendant, and their verdict must be for the plaintiff, unless the jury shall find that such damage was not caused either by the failure of the defendant to use all reasonable care, diligence, and exertion to maintain continuous and adequate refrigeration in said car, or by its failure to take all reasonable precautions to protect said strawberries from damage; and the burden is on the defendant to show that the damaged condition of said strawberries was not caused by the failure of the defendant to use all reasonable care, diligence, and exertion to maintain continuous and adequate refrigeration in said car, or by its failure to take all reasonable precaution to protect said strawberries from damage."

Plaintiff's Second Prayer.

"The plaintiff prays the court to instruct the jury that if they shall believe from the evidence that the Peninsula Produce Exchange, the plaintiff in this case, delivered to the American Railway Express Company, Incorporated, the defendant in this case, at Queponco, Md., on the 9th day of June, 1920, a carload consisting of 232 crates of strawberries, there being 32 quarts of strawberries in each of said crates, in good condition and contained in a refrigerator car containing a sufficient and adequate supply of ice for the proper refrigeration of said strawberries; that the defendant received said strawberries and agreed to carry the same to Carr Bros. Company at the city of Portland, state of Maine, and to keep the same fully iced to destination, and issued to the plaintiff the express receipt therefor offered in evidence; then, if the jury shall so believe, they are instructed that it thereupon became the duty of the defendant to use all reasonable care, diligence, and exertion to carry and deliver the said strawberries to said Carr Bros. Company at Portland, aforesaid, in safety, to maintain continuous and adequate refrigeration of said car by keeping at all times, while in transit, an adequate quantity of ice in the bunkers thereof, and to care for and protect the said shipment at all times while in transit, and if the jury shall further find that the defendant did not use all reasonable care, diligence, and exertion to carry and deliver said strawberries as aforesaid in safety, to maintain continuous and adequate refrigeration of said car by keeping at all times, while in transit, an adequate quantity of ice in the bunkers thereof, and to care for and protect the said shipment at all times while in transit, according to its duty as above set forth and that by reason thereof the said strawberries decayed and deteriorated in quality, and were delivered to said Carr Bros. Company, at the city of Portland, aforesaid, in such damaged condition, and loss thereby resulted to the plaintiff, then, if the jury shall so find, their verdict must be for the plaintiff."

Plaintiff's Third Prayer.

"The plaintiff prays the court to instruct the jury that, if they find for the plaintiff, they shall allow the plaintiff a sum equal to the difference between the invoice price or sum at which the said strawberries were by the plaintiff sold to Carr Bros. Company, if they shall believe that the same were sold by the plaintiff as aforesaid, and when delivered to the defendant complied with all the conditions of the sale thereof with regard to kind and quality, and such sum as they shall find as received by said Carr Bros. Company for said strawberries, after deducting from said last-named sum the express and icing charges paid, if any, and they may, in their discretion, allow interest upon such damages as they shall find to be due to the plaintiff, if any."

Defendant appellee's granted prayers were as follows:

"The jury are instructed that there is no legally sufficient evidence in this case that the car of strawberries mentioned in the evidence was negligently delayed in transit by the defendant, and the plaintiff is, therefore, not entitled to recover under the first and third counts of its declaration in this case.

The court instructs the jury that the defendant corporation, under its contract with the plaintiff, as shown by the bill of lading offered in evidence, did not guarantee or insure that the said strawberries of the plaintiff would reach their destination at Portland, Me., in good condition, and was only bound to exercise reasonable care to protect the said strawberries from injury while they were in its custody, and, if the jury shall find from the evidence that the defendant did exercise such reasonable care to protect the said strawberries from injury while they were in its custody in transportation, then their verdict must be for the defendant under the second count of the plaintiff's declaration."

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE, and WALSH, JJ.

James M. Crockett, of Pocomoke City, and James E. Ellegood, of Salisbury (Ellegood, Freeny & Wailes, of Salisbury, on the brief), for appellant.

F. W. C. Webb, of Salisbury (Woodcock & Webb, of Salisbury, on the brief), for appellee.

DIGGES J.

This appeal is from a judgment for costs entered in the circuit court for Wicomico county on a verdict by the jury in favor of the appellee (defendant below).

The suit was instituted by the appellant (plaintiff), the Peninsula Produce Exchange, a corporation, against the appellee (defendant), the American Railway Express Company, Incorporated, to recover damages alleged to be occasioned by the negligence of the defendant in its failure to transport, without delay, and keep adequately iced during the period of transportation, a carload of strawberries consigned to Carr Bros., of Portland, Me. The substantial facts, as disclosed by the record, are that some time in the early part of June, 1920, the appellant sold and agreed to deliver to Carr Bros. in Portland, Me., a carload of strawberries containing 232 crates of 32 quarts each, at and for the price of $8.25 per crate, plus icing charges; that, in compliance with the terms of said sale, the appellant, on the afternoon of June 8 and the morning of June 9, 1920, loaded into a refrigerator car of the appellee, No. P. R. R. 2793, at Queponco, Worcester county, Md., the quantity of strawberries so sold to Carr Bros.; that after the loading was completed the car was fully iced, the doors sealed, and started on its way to destination at 1:00 p. m. on June 9. That at the time of the shipment the appellant took from the appellee the usual express receipt designated "Uniform Express Receipt," which contained the date of shipment, destination, consignee, weight, value of cargo and shipper, with instruction, "Keep fully iced to destination," "which the company agrees to carry upon the terms and conditions printed hereon to which the shipper agrees, and, as evidence thereof, accepts and signs this receipt." That among the terms and conditions printed on the receipt there was the following, which is the only provision necessary to refer to for the purposes of a decision in this case:

"4. Unless caused in whole or in part by its own negligence or that of its agents, the company shall not be liable for loss, damage, or delay caused by. * * *

* * * (b) The nature of the property, or defect or inherent vice therein."

That car P. R. R. 2793 was a type of refrigerator car generally known as "R-7," its icing capacity being 10,500 pounds, having a bunker at each end holding about 5,250 pounds each, the opening to the bunkers being located on the top of the car and being closed by plugs, and it being through these openings or plug holes that ice is supplied to the bunkers. That the car in question was inspected by the witness, Miller, an employee of the appellee whose duty it was to make such inspections; that the inspection of this car took place by the witness at the point of origin, and again some time between the time of its departure and its arrival at Harrington, Del.; that, as a result of said inspection the witness found the drips to the bunkers were open so as to allow the water from the melting ice to flow out, and the car iced to its full capacity. That it arrived at Springfield, Mass., on June 10, at 5:30 p. m., where it was then...