Pennsylvania R. Co. v. Naive

• Decision Date: 11 January 1904
• Parties: PENNSYLVANIA R. CO. v. NAIVE.
• Court: Tennessee Supreme Court

79 S.W. 124

112 Tenn. 239

PENNSYLVANIA R. CO. v. NAIVE.

Supreme Court of Tennessee.

January 11, 1904

Appeal from Circuit Court, Sumner County; B. D. Bell, Judge.

Action by J. J. Naive against the Pennsylvania Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff below was a dealer in eggs, poultry, and produce having places of business at Gallatin and Nashville, this state.

On Saturday, the 29th day of June, 1901, he consigned to Wm Soeder & Son, at Philadelphia, Pa., a shipment consisting of 25 1/2 barrels of dressed poultry. A reasonably prompt transportation of the goods would have put them into Philadelphia on Wednesday afternoon, which was July 3, 1901 and the consignment, if in good condition, and properly packed in ice, would have been in a sound and merchantable condition on its arrival in Philadelphia.

The shipment was sent over the Star Union Line, going from Nashville and Gallatin to Philadelphia over the Louisville & Nashville Railroad Company to Cincinnati, and from that point over the line of the defendant railroad company to Philadelphia.

The goods arrived in Philadelphia on Wednesday afternoon, July 3 about 5 o'clock. This was after business hours, just prior to the close of business, and too late to unload during business hours of that day, and too late to notify consignees and effect delivery.

The car containing the goods was put on the siding of the Quaker City Cold Storage & Warehouse Company about 11 o'clock p. m. of July 4th; this company being a terminal for the Pennsylvania Railroad Company's perishable freights, and acting as its agent in keeping, unloading, and delivering such freights. It is not, in terms, shown where the car was from 5 o'clock p. m. July 3d to 11 o'clock p. m. July 4th, but no other inference can be drawn than that it was in the yards of plaintiff in error, not in cold storage, but exposed to the hot weather.

On the morning of July 5th, Geo. Soeder, one of the consignees, called at the warehouse, and was informed by the delivery clerk that he knew nothing of the shipment as yet. Shortly after this the employés of the warehouse company seemed to have looked up the property, and delivery was made about one hour later--about 9 o'clock on the morning of July 5th. The weather at this time was extremely warm. While some of the witnesses say that the car was "good and cold," and had 2,100 pounds of ice in its ice bunkers, still, as otherwise shown, it requires at least three tons of ice to properly ice a car during such weather as prevailed on July 3d and 4th of 1901. At this time (that is, when delivery was made) the barrels containing the poultry were bare of ice. The ice had, the witnesses say, melted during the delay between the date of the arrival of the goods and their delivery to the consignees. In such weather as prevailed July 3 to July 5, 1901, dressed poultry bare of ice will spoil within a few hours.

When the poultry was unloaded and delivered to consignees, it was badly decayed. Some of it was thrown away, and the residue was immediately cleaned up, packed in finely crushed ice, and put upon the market, and within two hours thereafter was sold for the best price obtainable.

The testimony shows that the poultry was carefully and properly packed in barrels at Nashville and Gallatin, according to the best requirements of the business.

There is no direct evidence that the poultry was in good condition when it was packed, but we infer from certain statements in the testimony of the plaintiff below, Mr. Naive, that it was in good condition; that is, that it was fresh. He shows that he took special pains with the shipment, on account of the hot weather, and packed it according to the best method known to the business; and, describing the method of preparing dressed poultry for shipment, he says: "We dress it and cool it out, and then pack it in ice in barrels." We infer from the expression, "We dress it and cool it out," that the poultry involved in the present controversy had been freshly killed immediately before the shipment was made, and then properly cooled out and packed in the manner stated.

The record does not disclose any inquiry as to the shipment, either by plaintiff, Naive, or his agents, prior to July 5th; but it does show that Mr. Lindsey, agent of the Pennsylvania Road at Nashville, called up Mr.

Naive on July 4th, and informed him that the goods had arrived on July 3d.

It is admitted that the difference in the market price of the poultry in the condition in which it was when delivered to consignee and the condition in which it was when delivered to the carrier was $202.46.

The jury returned a verdict for this amount, with interest from July 5, 1901, amounting altogether to $229.48.

From this judgment the railroad company has appealed and assigned errors.

The errors assigned are as follows:

(1) That there was no evidence to support the verdict of the jury, in that there was no material evidence to show that the poultry was properly packed by defendant in error, and in that there was no material evidence to show that the poultry was in good condition when delivered to the carrier.

(2) That the court erred in permitting George and William Soeder to testify that nothing was omitted to be done towards the proper handling of the poultry after it was received by them. The ground of the objection was that the question called merely for the expression of an opinion on the part of the witnesses referred to.

(3) That the court erred in permitting George and Wm. Soeder to testify that the delay in the delivery of the poultry after it arrived in Philadelphia was not caused by anything that they did or failed to do towards procuring its prompt delivery. The ground of this objection made in the court below was the same as that stated under the preceding assignment.

(4) That the court erred in excluding the evidence as to the custom of suspending business on July 4th.

In respect of this matter, the defendant below offered to prove that July 4th was observed in Philadelphia by carriers and among business men of all classes by suspending business, and this custom of suspending business was an established one-- general, certain, and uniform--in the city of Philadelphia.

The defendant offered the depositions of witnesses showing that their answers would establish the points just indicated.

On objection of the plaintiff below, this testimony was ruled out by the circuit judge.

It was not proven that the plaintiff had any knowledge of this custom prevailing in Philadelphia when he made the shipment to that city.

(5) That the court erred in charging the law of common carriers as applicable to this case.

It is insisted that there was nothing in the case to show liability as a common carrier; on the contrary, that the liability, if any, of the plaintiff in error, was that of a warehouseman, and that the court should have charged the law regulating the liability of warehousemen.

(6) That the court erred in its charge in respect of the burden of proof. It is said that by the court's charge the burden of proof was thrown on the defendant to show that it was guilty of no negligence, whereas the court should have charged that the burden of proof was on the plaintiff to show negligence.

(7 to 15) It is insisted that the court erred in refusing to charge, or in failing to charge, as prepared, requests Nos. 1, 5, 6, 7, 10, 11, 12, 13, and 14 offered by the plaintiff in error in the court below.

The particulars of these requests will be stated in the body of the opinion, as far as may be deemed necessary.

Thos. H. Malone, Jr., for appellant.

Seay & Seay, for appellee.

NEIL, J. (after stating the facts).

The first assignment of error is not well taken, and must be overruled. We think the facts set forth in the statement are sufficient to show that there was some evidence from which the jury might reasonably infer that the goods were in good condition and properly packed when delivered by the consignor to the carrier for shipment. This meets the requirements of the rule of law applicable to the subject.

The second and third assignments may be considered together. While his honor, for the reasons set out in the objection made by counsel, committed a technical error in allowing the witnesses Geo. and Wm. Soeder to make the statement referred to, yet the error was innocuous, and there can be no reversal on such ground. The error was innocuous because it appears from the uncontroverted facts of the record that the persons referred to (the consignees) were in no wise responsible for the delay in delivering the goods, and that upon receiving them they exercised the utmost diligence in separating the spoiled poultry from that which was still merchantable, and also in cleaning up, preparing, and putting the latter on the market.

The fourth assignment and the fifth and thirteenth requests all relate to the same matter--the rights of the parties as affected by the intervention of the 4th of July. We need not specially refer to the requests, as they will be disposed of in determining the fourth assignment. The question to be decided, then, is whether his honor erred in excluding the testimony referred to in that assignment. Our conclusion is that he did commit error in this matter.

It is true that the custom of suspending business on the 4th of July in Philadelphia was not known to the plaintiff below (that is, he had no actual knowledge of it); but when he dealt in that market, as in the present instance, through his agents, Wm. Soeder & Son, or sent goods there to his agents at that point for sale, the law visited him with constructive knowledge of a custom so certain, well-established, and general as...