Singer v. American Exp. Company

• Decision Date: 26 January 1920
• Citation: 219 S.W. 662,203 Mo.App. 158
• Parties: LOUIS SINGER, Respondent, v. AMERICAN EXPRESS COMPANY, Appellant
• Court: Kansas Court of Appeals

219 S.W. 662

203 Mo.App. 158

LOUIS SINGER, Respondent, v. AMERICAN EXPRESS COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

January 26, 1920

Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.

REVERSED.

Judgment reversed.

Hal R Lebrecht, J. R. Kaspar and Lloyd E. Barber for respondent.

Lathrop Morrow, Fox & Moore, Geo. J. Mersereau and Geo. H. Muckley for appellant.

OPINION

ELLISON, P. J.

This action was instituted to recover damages alleged to have been sustained by plaintiff to a carload of strawberries which were shipped from Hammond, Louisiana, to Kansas City, Missouri, on the 15th of April, 1918. The judgment in the trial court was for the plaintiff.

The action is avowedly based solely on a carrier's common-law liability as an insurer. Nothing was shown by plaintiff save that the berries were shipped from Hammond in good condition and that they arrived in Kansas City in bad condition and the amount of damages. There is no pretense of liability by reason of any negligence, or want of care in transit.

When plaintiff made proof of shipment in good condition and arrival at destination in bad condition, together with the damage to the berries, he closed his case and defendant offered a demurrer to the testimony which the trial court overruled. Whereupon defendant introduced evidence tending to show a regular bill of lading for the shipment and that there was no negligence. In keeping with his position that defendant was an absolute insurer, plaintiff did not offer any evidence in rebuttal and defendant again offered an instruction directing a verdict for it. So we are brought to the sole question whether a carrier is an insurer at common law against damage to freight which is perishable by its own inherent nature. We decided at this term in a case involving the freezing of potatoes in transit (Clemons Produce Co. v. Railroad) that he was not, and we stated the same rule in Kolkmeyer v. Railroad, 192 Mo.App. 188, 195; Cudahy Co. v. Railroad, 193 Mo.App. 572 and Collins v. Railroad, 181 Mo.App. 213, and this is established law; Brennisen v. Railroad, 100 Minn. 102, 105; Daniels v. Railroad, 88 Ore. 421, 427, 429; Michellod v. Railroad, 86 Ore. 329, 335-338.

The foregoing cases, while denying that a carrier is an insurer at common law of perishable fruit or commodities inherently subject to decay or loss, yet hold that where he engages to carry such articles (with no exemption) it is implied that he will not be negligent, that he will exercise such care and diligence as will be reasonably necessary for the safe carriage of that character of freight. [Brennisen v. Railroad, supra; Taft Co. v. Express Co., 133 Iowa 522, 110 N.W. 897; cases involving agreement to ice berries in refrigerator cars.]

But so far as concerns the case before us, it must be kept in mind that the shipment in question was interstate, and that the rule governing defendant's liability must be sought in the "Acts of Congress" and the "common law as accepted and applied in the federal tribunals." [Cincinnati & Tex. Pac. Ry. v. Rankin, 241 U.S. 319, 327, 36 S.Ct. 555.]

Before the Carmack amendment to the interstate commerce law, it was said in Adams Express Co. v. Croninger, 226 U.S 491, 504, 57 L.Ed. 314, 33 S.Ct. 148, that "the rule of a carrier's liability, for an interstate shipment of property, as enforced in both Federal and State courts, was either that of the general common law as declared by this court and enforced in the Federal courts throughout the United States, or that determined by the supposed public policy of a particular State, or that prescribed by statute law of a particular State, neither uniformity of obligation nor of liability was possible until Congress should deal with the subject." That State of affairs led to the adoption of the amendment which, the court said, (p. 505) superseded "all the regulations and policies of a particular State on the same subject . . ." The court then asked, (p. 506) what is this liability thus imposed upon the carrier? and answered the question in these words: "It is a liability to any holder of the bill of lading which the primary carrier is required to issue 'for any loss, damage or injury to such property caused by it,' or by any connecting carrier to whom the goods are delivered. The suggestion that an absolute liability exists for every loss, damage or injury, from any and every cause, would...