Rice v. Oregon Short Line Railroad Co.

• Decision Date: 22 March 1921
• Parties: L. A. RICE, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

198 P. 161

33 Idaho 565

L. A. RICE, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

Supreme Court of Idaho

March 22, 1921

CARRIERS-CARMACK AMENDMENT-INITIAL CARRIER-NEGLIGENCE-ACT OF GOD.

1. Under the Carmack Amendment, liability of a carrier for damages as initial carrier depends upon the reception of goods in one state for transportation to a point in another state or territory, rather than the intention which the shipper may have had at the time of loading the cars but which does not find expression in some form of contract; and where all the obligations of a previous contract of shipment are terminated, and there has been a delivery to the consignee prior to the making of the subsequent contract for shipment into another state, the carrier receiving the property under the subsequent contract of shipment is the initial carrier.

2. The distinguishing characteristic of an "act of God" is that it proceeds from the forces of nature alone, to the entire exclusion of human agency.

3. When an act of God is relied upon as a defense in an action for damages, it is not sufficiently accurate to instruct the jury that a natural event is an act of God if it be not reasonably anticipated, since the reasonableness of the anticipation in such cases is not to be tested by ordinary standards.

4. A carrier is liable for damages proximately caused by an act of God, in case its failure to use reasonable diligence to prevent or mitigate the damage contributes to the loss.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.

Action for damages. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent. Petition for rehearing denied.

H. B Thompson and John O. Moran, for Appellant.

Manifestations of nature, including weather conditions or snowstorms which are so unusual as not to be reasonably anticipated, fall within the definition of "act of God." (Willson v Boise City, 20 Idaho 133, 117 P. 115, 36 L. R. A., N. S., 1158.)

A common carrier which receives goods intended for shipment from a point in one state to a point in another state is the initial carrier, although it only switches the car in which they are loaded to the lines of another common carrier to be transported out of the state. (Barrett v. Northern P. R. Co., 29 Idaho 139, 157 P. 1016; United States v. Union Stock Yards & Transit Co., 226 U.S. 286, 33 S.Ct. 83, 57 L.Ed. 226, see, also, Rose's U.S. Notes.)

It is the essential character of the commerce, not the accident of local or through bills of lading, which determines federal or state control over it and the liability of the initial carrier. It takes character as interstate or foreign commerce when it is actually started in the course of transportation to another state or to a foreign country. (Railroad Commission of La. v. Texas & P. R. Co., 229 U.S. 336, 33 S.Ct. 837, 57 L.Ed. 1215; Texas & New Orleans R. Co. v. Sabine Tram Co., 227 U.S. 111, 33 S.Ct. 229, 57 L.Ed. 442; Southern P. Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310, see, also, Rose's U.S. Notes; Bracht v. San Antonio & A. P. R. Co., 254 U.S. 489, 41 S.Ct. 150, 65 L.Ed. .)

The initial carrier of a shipment in interstate commerce is liable for the default of all connecting carriers to destination, even while the goods are being transported under an exchange bill of lading issued without its knowledge or concurrence. (Atchison & Topeka & S. F. R. Co. v. Harold, 241 U.S. 371, 36 S.Ct. 665, 60 L.Ed. 1050, see, also, Rose's U.S. Notes.)

The intention of the shipper as to the ultimate destination at the time the freight starts is the test of its character, regardless of whether the voyage is temporarily broken, whether more than one carrier transports it, or whether it moves on through or local bills of lading. (United States v. Illinois Cent. R. Co., 230 F. 940.)

Hays, Martin, Cameron & Hays, for Respondent.

An initial carrier is not liable for damages to goods occurring on lines not its own and over which they were routed without notice to it. The obligation of such a carrier ceases when the goods reach the destination, in good condition, to which they were originally consigned. (Parker-Bell Lumber Co. v. Great Northern R. Co., 69 Wash. 123, 124 P. 389, 41 L. R. A., N. S., 1064; Barrett v. Northern P. Ry. Co., 29 Idaho 139, 157 P. 1016; Quillen v. Minneapolis & St. L. R. Co., 181 Iowa 536, 164 N.W. 779; Knapp v. Minneapolis, St. P. & S. S. M. Ry. Co., 33 N.D. 291, 156 N.W. 1019; Victor Produce Co. v. Western Transit Co., 135 Minn. 121, 160 N.W. 248.)

Whether the Boise & Interurban Electric Railway received plaintiff's sheep "for transportation from a point in one state to a point in another state," or whether the defendant Oregon Short Line Railroad was the first to receive plaintiff's sheep "for transportation from a point in one state to a point in another state," and thus became the so-called "initial carrier" or the carrier meant to be held liable under the Carmack Amendment, was a question of fact for the jury. (Produce Trading Co. v. Norfolk So. R. Co., 178 N.C. 175, 100 S.E. 316; Southern P. Co. v. Arizona, 249 U.S. 472, 39 S.Ct. 313, 63 L.Ed. 713.)

The mere intention of respondent Rice, if such existed, to ultimately continue his journey beyond the state did not convert the intrastate shipment from Linder to Caldwell into one that was interstate. (Southern P. Co. v. Arizona, supra; Gulf, C. & S. F. R. Co. v. Texas, 204 U.S. 403, 27 S.Ct. 360, 51 L.Ed. 540, see, also, Rose's U.S. notes; Settle v. Baltimore & O. S.W. R. Co., 249 F. 913, 162 C. C. A. 111.)

The fact that the sheep were not unloaded at Caldwell but were reshipped to Chicago in the same cars does not render the transportation from Linder to Caldwell interstate commerce nor does it prevent the appellant from being the first carrier to receive the sheep "for transportation from a point in one state to a point in another state" under the contract here sued on. (Chicago M. & St. P. Ry. Co. v. Iowa 233 U.S. 334, 34 S.Ct. 592, 58 L.Ed. 988, see, also, Rose's U.S. Notes; Houston E. & W. T. Ry. Co. v. Houston Packing Co. (Tex. Civ.), 221 S.W. 316; Bracht v. San Antonio & A. P. Ry. Co., 254 U.S. 489, 41 S.Ct. 150, 65 L.Ed. ; Chesapeake & O. Ry. Co. v. National Bank of Commerce of Norfolk, 122 Va. 471, 95 S.E. 454; Louisville & N. R. Co. v. Johnson, 182 Ky. 418, 206 S.W. 638; Pere Marquette Ry. Co. v. J. F. French & Co., 254 U.S. 538, 41 S.Ct. 195, 65 L.Ed. .)

RICE, C. J. Budge, Dunn and Lee, JJ., concur. McCarthy, J., did not sit at the argument nor take part in the opinion.

OPINION

RICE, C. J.

This action was commenced against appellant as the initial carrier under the Carmack Amendment (U.S. Comp. Stats. 1916, secs. 8604a, 8604aa) for damages alleged to have been suffered on account of negligent handling of four cars of sheep. At the trial, respondent introduced no evidence of negligence on the part of appellant for damages resulting from any act or omission on its part. The negligence for which respondent claimed damages was that of the Union Pacific Ry. Co., a connecting carrier. Appellant, therefore, cannot be held liable in this case unless it is the initial carrier under the Carmack Amendment.

It appears that the sheep were loaded on the cars at Linder, a station on the Boise and Interurban Railway, on February 17, 1914. There being no station agent at Linder, a bill of lading was issued by the conductor of the train which carried the sheep. The bill of lading showed the destination of the shipment to be Caldwell, a station also on the line of the Boise and Interurban Railway Co., the sheep being consigned to the shipper, respondent herein. The line of the interurban company is wholly within the state of Idaho. On arrival at Caldwell, a transfer of the cars containing the sheep was made from the line of the interurban railroad to that of appellant. Respondent paid the freight charges to the agent of the interurban company at Caldwell, signed a receipt and surrendered the bill of lading, and thereafter entered into the contract of shipment with appellant which is made the basis of this action.

It was shown by the evidence that the Boise and Interurban Railway Co. had not filed with the Interstate Commerce Commission any tariffs or schedule of rates previous to the time of this shipment; also that its policy was at the time of this shipment, and had previously been, not to make contracts to ship property from points on its line to points outside the state.

According to the bill of lading issued by appellant, the sheep were consigned to Rosenbaum Bros., a corporation, at Chicago, Ill., and were routed over the line of appellant, U. P. Ry., and Chic. Mil. & St. P. Ry. They were thereafter diverted to So. Omaha, Nebr.

When the sheep were loaded at Linder, respondent expected to send them to an eastern market in case he did not sell them en route. The general freight agent of the Boise and Interurban Railway Co. testified that he knew when he provided the cars that the prospect was the sheep would move outside of the state of Idaho.

In the case of Barrett v. Northern Pacific Ry. Co., 29 Idaho 139, 157 P. 1016, this court said:

"The agreement between appellant and respondents, prior to the arrival of the goods in Spokane whereby they were to be transmitted from that city to Rupert constituted a new contract entirely separate and independent of that entered into with the Chicago, Burlington & Quincy Railroad Company and one to which that company was not a party. An initial carrier is not liable for damage to goods occurring on lines not its own and over which they were routed without notice to it. The...