Simmons Hardware Co. v. Southern Ry. Co.

• Decision Date: 08 March 1922
• Docket Number: 5951.
• Citation: 279 F. 929
• Parties: SIMMONS HARDWARE CO. v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

279 F. 929

SIMMONS HARDWARE CO. v. SOUTHERN RY. CO.

No. 5951.

United States Court of Appeals, Eighth Circuit.

March 8, 1922

Rehearing Denied June 9, 1922.

Shepard Barclay, of St. Louis, Mo. (Leonard, Sibley & McRoberts, of St. Louis, Mo., on the brief), for plaintiff in error.

Bruce A. Campbell, of East St. Louis, Ill. (Edward C. Kramer and Rudolph J. Kramer, both of East St. Louis, Ill., Samuel B McPheeters, of St. Louis, Mo., and Edward P. Humphrey, of Louisville, Ky., on the brief), for defendant in error.

Before LEWIS, Circuit Judge, and TRIEBER and POLLOCK, District Judges.

TRIEBER District Judge.

This is an action by the plaintiff in error to recover the value of certain goods of the plaintiff and its assignors, delivered to the defendant and accepted by it as a connecting common carrier, to be transported to St. Louis, Mo., which by reason of its negligence were never delivered.

The answer, in addition to a general denial, pleaded that the shipments set out in the complaint were delivered to the initial carrier under and subject to the terms and conditions of the uniform bill of lading, in the form prescribed by the provisions of the Interstate Commerce Acts (Comp. St. Sec 8604a et seq.), which were delivered to the shippers at the time the shipments were made, which bills of lading provided that the carrier or party in possession of the property received should not be liable for any loss or damage occasioned by or resulting from strikes or riots, and that the goods involved were destroyed by fire caused by a riot in the city of East St. Louis, Ill., and therefore defendant is not liable.

The reply denies that the fire which destroyed the goods resulted from any riot; that the provision in the bills of lading exempting the carrier from loss by riot was unlawful and therefore void; and charges that the destruction of the goods was by reason of defendant's negligence.

There was a trial to a jury and a verdict for the defendant. It is undisputed that, at the time and the place where the cars containing the goods were standing, there was a serious riot that the rioters set fire to houses at a number of places, some near the cars, from which latter place the fire spread to the cars and destroyed them and the contents, including the goods sued for in this action. The cause was tried on a stipulation as to some of the facts and oral evidence as to others. It is unnecessary to set out the agreed facts introduced by the plaintiff, as they only tended to prove some of the allegations, not controverted, although put in issue by the general denial in the answer. The material parts of the agreed facts introduced on behalf of the defendant are:

That the shipments were interstate, and were destroyed by fire while in the cars in the Sixth Street yards of the defendant in East St. Louis, Ill., on the evening of July 2, 1917; that the fire was communicated to the cars and goods therein contained from a fire or fires in buildings in the vicinity of the Sixth Street yards, and near the tracks and places on the tracks where the cars were located, from which said buildings the fire spread to the said cars and goods; that the said fire or fires in the buildings in the vicinity of the Sixth Street yards were set or started by rioters, then and there engaged in a riot in the city of East St. Louis, Ill., and that the defendant was not in any way responsible for the said riot, or for its inception, or for its continuance; that all the terms and conditions of the bills of lading were duly performed by plaintiff and defendant.

That the bills of lading contained the following clause: 'Except in cases of negligence of the carrier or party in possession (and the burden to prove freedom from such negligence shall be on the carrier or party in possession) the carrier or party in possession shall not be liable for loss, damage or delay occurring while the property is stopped and held in transit upon request of the shipper, owner, or party entitled to make such request; or resulting from a defect or vice in the property or from riots or strikes.'

'That the bill of lading in each shipment was the standard or uniform bill of lading of the initial carrier in each shipment, and that each and every one of said forms or bills of lading had been expressly approved by the Interstate Commerce Commission of the United States prior to January 1, 1917, and that each and every one of the same were in full force and effect during all of the times involved herein, and that said approval had not been withdrawn at the time of the destruction of plaintiff's property; that each and all of the said bills of lading were set forth and contained in the tariffs and schedules of rates legally and lawfully filed with the Interstate Commerce Commission prior to January 1, 1917; that said tariffs were filed, published, posted, and kept open for inspection in the manner required by law, and were lawfully in effect prior to and at the time of each shipment involved herein, and during all of the times thereafter until after the destruction of said property; that the shipper in each case was given by the carrier, under and by virtue of the provisions of said tariffs and schedules of rates, an essential choice of rates whereby the shipper was given a choice of a higher rate if the goods were shipped under unlimited carrier's liability bill of lading, instead of under the said uniform or standard bill of lading under which they were shipped.'

The assignments of errors, in so far as they are properly before us, and as they require consideration, are:

The refusal of the court to give the following special request of the plaintiff:

'The court charges the jury that in this case the burden of proof is on defendant to prove freedom from negligence while said goods were in possession of defendant, and that unless defendant has established, by a preponderance of the evidence, that defendant, in the care of said goods and in taking measures for their protection, prior to their being reached by the fire which destroyed them, exercised the care which a person of reasonable prudence and caution would have taken for the protection of said goods, then your verdict should be for the plaintiff on each count of the petition.'

And the following exception to the charge:

'We except to your honor's limitation of time for the exercise of care. We think that care is to be exercised at all times. The question of whether the fire was at a particular hour or not we regard as a question for the jury. We except to any limitation of the time within which the defendant was required to exercise care, and therefore to that part of your charge which appears to have a limitation of time as to that duty.'

In the assignment of errors other parts of the court's charge are assigned as error; but as this court, on writ of error, can only examine such as had been called to the attention of the trial judge by proper exceptions, it will serve no useful purpose to quote or refer to them in this opinion.

The assignment that the court erred in overruling plaintiff's motion for a new trial is not subject to review in an appellate court of the United States, as it is addressed solely to the discretion of the trial court. This is too well settled to require a citation of authorities, although eminent counsel still frequently incumber the record with such an assignment.

Another proper assignment is the refusal of the court to permit plaintiff to introduce in evidence and read to the jury articles which appeared in the Globe-Democrat of May 30, 1917, and July 2, 1917, a newspaper published in the city of St. Louis, Mo., giving accounts of the riots in East St. Louis, of the beating of negroes and burning of houses.

Counsel for plaintiff earnestly insisted that the provision in the bills of lading, exempting the carrier from liability for loss resulting from riots, except in cases of negligence of the carrier, with the further provision, 'except in cases of its negligence, and the burden of proof to prove freedom...