Rothchild Bros. v. Northern P. Ry. Co.

• Decision Date: 24 May 1912
• Court: Washington Supreme Court
• Parties: ROTHCHILD BROS. v. NORTHERN PAC. RY. CO.

123 P. 1011

68 Wash. 527

ROTHCHILD BROS. v. NORTHERN PAC. RY. CO.

Supreme Court of Washington

May 24, 1912

Department 1. Appeal from Superior Court, King County; John F. Main Judge.

Action by Rothchild Bros. against the Northern Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

C. H Winders, of Seattle, for appellant.

Preston & Thorgrimson, of Seattle, for respondent.

FULLERTON J.

The plaintiff, Rothchild Bros., a corporation, brought this action against the defendant, the Northern Pacific Railway Company, to recover the value of a car load of high proof spirits which were shipped by distillers at Peoria, Ill., to the plaintiff at Portland, Or., and destroyed at the last-named place by fire on June 27, 1907. Judgment went for the plaintiff in the court below for the value of the spirits at the rate of $.50 per proof gallon, being the value to which they were released, as the court found, in the contract of shipment. In its complaint the plaintiff claimed the full market value of the spirits, namely, $1.28 per proof gallon plus the cost of transportation from the distillery to the place of delivery. Both parties appeal from the judgment entered; the plaintiff from the refusal of the court to render a judgment in its favor for the full value of the property destroyed, and the defendant from the general judgment holding it liable for the destruction of the property.

The facts material to be considered in determining the controversy are in the main undisputed. The spirits were billed by the distillery company to Portland, Or., and routed over the Chicago, Rock Island & Pacific Railway Company. They were carried by the last-named company to Minneapolis, Minn., in one of its own cars. As the company did not allow its cars to be sent west of Minneapolis, it became necessary to transfer the spirits to another railway whose cars did run west of that point, and the car was turned over to the Minnesota Transfer Company to make the transfer. This company transferred the property to a car of the defendant. While doing so, it discovered that one of the barrels in which the spirits were contained was in bad order; that a stave had broken leaving an opening in the barrel out of which something more than one-half of the original contents of the barrel had escaped. The barrel was loaded into the car in its broken condition, the car delivered to the defendant company and transported by it to its destination at Portland, Or. The car reached Portland some time on the day of June 24, 1907. On that day or the next it was entered and inspected by an agent of the defendant, who discovered, if the company did not then already know, the broken condition of the barrel. After looking over the contents of the car and noting the condition in which the spirits had arrived, he caused the car to be resealed without taking any steps to recooper the broken barrel or otherwise make more secure its contents.

The plaintiff had employed the Holman Transfer Company to receive the spirits from the railway company and haul them to its warehouse, and had delivered to the transfer company the bill of lading representing the property. As was his custom, a representative of the transfer company called at the railroad yard on the morning of the 25th of June to ascertain what freight had arrived and was told of the arrival of the car load of spirits, and told further that the car would be spotted on the team or delivery tracks ready for unloading by the next morning. The agent of the transfer company then produced and delivered up the original bill of lading representing the shipment which his company had received from the plaintiff. On the next morning, June 26th, the representative of the transfer company again appeared and was told that the car had been spotted the night before and was ready to be unloaded. He then stated that he would send his teams for the spirits on the next morning. Either on this morning or the day before he was told of the broken condition of the barrel and of the fact that some of its contents had escaped. On the morning of June 27th, the transfer company sent teams in charge of three of its men to receive the contents of the car and haul them to the plaintiff's warehouse; it also informed the man put in charge of the work of the broken condition of the barrel. The men with the teams reached the car at about the hour of 7 o'clock in the morning. The seal on the door was immediately broken, and one of the men entered the car, and another got as far as the door, when the spirits in the broken barrel burst into flame. The flame soon communicated itself to the other barrels, and the entire car load was consumed.

The trial judge among other findings of fact made the following 'That within a proper and reasonable time after the arrival of the car at Portland, Or., the defendant gave notice of its arrival to the transfer company at Portland, which transfer company was employed as an independent contractor by the plaintiff to haul all goods shipped by rail to the plaintiff at Portland, Or., from the railroad tracks to plaintiff's place of business in Portland, Or. Thereafter, within a proper and reasonable time, said Portland Transfer Company sent its men and teams to the railroad yards for the purpose of loading onto their wagons and hauling to plaintiff's place of business the contents of said car. Those men entered the car for that purpose, and almost immediately following such entry the contents of the car burst into flames and were entirely destroyed by fire. Such spirits were well known to be and were in fact highly...