Smith v. Gulf, Colorado & Santa Fe Railway Company

• Citation: 164 S.W. 132,177 Mo.App. 269
• Parties: W. R. SMITH and CORD C. SMITH, Co-partners as W. R. SMITH & SON, Respondents, v. GULF, COLORADO & SANTA FE RAILWAY COMPANY and THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellants
• Decision Date: 02 February 1914
• Court: Court of Appeals of Kansas

164 S.W. 132

177 Mo.App. 269

W. R. SMITH and CORD C. SMITH, Co-partners as W. R. SMITH & SON, Respondents, v. GULF, COLORADO & SANTA FE RAILWAY COMPANY and THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellants

Court of Appeals of Missouri, Kansas City

February 2, 1914

Appeal from Jackson Circuit Court.--Hon. Kimbrough Stone, Judge.

REVERSED.

Judgment reversed.

Lathrop Morrow, Fox & Moore for appellants.

Glen R Donaldson for respondents.

OPINION

JOHNSON, J.

Plaintiffs, who are partners doing business in Topeka, Kansas, sued to recover damages they allege they sustained in consequence of negligence of defendants in the transportation of a carload of fresh oysters from Fort Worth, Texas, to Topeka.

Plaintiffs' vendor shipped the oysters from Fort Worth to Kansas City, December 11, 1910, under standard form bill of lading issued by defendant Gulf, Colorado & Santa Fe Railway Company. On arrival of the car at Kansas City the broker through whom plaintiff purchased the oysters received it and reconsigned it to plaintiffs at Topeka, under a standard form bill of lading issued by the defendant The Atchison, Topeka & Santa Fe Railway Company. There was no delay in either transportation but on receiving the car at Topeka plaintiffs found the oysters were spoiled and worthless. This suit was filed against both carriers and the gist of the pleaded cause is that there was a through shipment of the merchandise from Fort Worth to Topeka and that the damages resulted from negligence in transporting such highly perishable freight in a defective car. The allegation of negligence is that "defendants knew that said shipment consisted of fresh oysters and knew or by the exercise of ordinary could have known that said oysters must be kept in a tightly closed car, free from contact with the outer air, and that contact with such outer air would spoil and depreciate said oysters but that the defendants wholly neglecting their duty to properly protect said oysters during shipment placed said oysters in a defective car whereby and by reason of which negligence the said 1220 gallons of oysters above mentioned were spoiled and rendered totally unfit and of no value."

In separate answers defendants pleaded special defenses based on allegations that the transportation from Fort Worth to Topeka was accomplished through the agency of successive but independent transactions between plaintiffs and defendants and that plaintiffs failed to comply with a provision in each bill of lading requiring notice of loss to be given in a specified time. The reply pleaded a waiver of such notice. A trial resulted in a verdict and judgment for plaintiffs against both defendants.

It appears from the evidence that the transportation of fresh oysters a long distance requires careful packing and handling to keep them from spoiling. There is no complaint of any dereliction of defendants in the performance of the duties imposed on them as carriers and by the terms of the shipping contract, except in one particular. The initial carrier furnished a refrigerator car, properly filled its bunkers with ice and the shipper loaded the oysters (which were contained in vessels designed to be made air-tight after being filled) into the car and packed these vessels in ice. The shipper whose deposition was introduced by plaintiffs testified: "The oysters that we shipped W. R. Smith & Son of Topeka, in this car, were fresh and each package was iced heavily so that they would carry through to destination beyond a doubt, without spoilage, even if the bunkers of the refrigerator car that we placed them in were not iced, but we saw that these bunkers were iced before placing the packages into the car." The Topeka witnesses introduced by plaintiffs testified to conditions which tend to show that the car was properly iced and the containers were properly packed in ice but there is room in their testimony for a reasonable inference that the containers in some instances were not carefully sealed and, therefore, were not air-tight. They say that the ice bunkers still were sufficiently filled but the packing had melted away from the containers and, thereby, the temperature of their contents was raised to a point that set processes of decay to work.

The witnesses attribute this condition to a defect they discovered in the doors on one side of the car which prevented them from being tightly closed. As with a kitchen refrigerator it is necessary to exclude the outer air which if admitted would melt the ice too rapidly and the doors of refrigerator cars are made to fit so closely that when closed the car practically becomes air-tight.

The doors in question, so plaintiffs say, had warped or bulged in a way to prevent their proper union and to leave open cracks at their top and bottom through which the outer air gained access to the car and melted the ice packed around the containers. Employees of the Atchison road at Topeka who inspected the car deny the existence of such defect and all the witnesses at Fort Worth say that the car was in perfect order when it started on its journey. The shipper testified:

"The car was in first-class condition as far as I could see. I saw the doors closed on it and it was sealed in my presence. Q. Was there any complaint made to you about the carload of oysters shipped from Fort Worth to W. R. Smith & Son about December 11, 1910, other than that they were short, which claim you say you would not allow? A. No. There was no complaint made to us of any character whatever, except the claim that the packages were short measure, which claim we would not allow and did not allow. Q. Was there any complaint made to you, or to the Texas Fish & Oyster Distributing Company, of which you were the General Manager, about the quality or condition of the oysters. A. No. No complaint whatever. Q. In the suit filed by W. R. Smith & Son against the defendant Railway Companies, they set up the claim that the oysters arrived in bad condition. Do you know anything about that? Was there any report ever made to you by W. R. Smith & Son? A. The oysters could not have arrived in bad condition, for I had him to return one of the packages, when he claimed short measure, and this package I reshipped to a point in Texas, and they arrived at their destination in good condition, and we received our pay for same."

The employee of plaintiffs who unloaded the car testified: "Q. How much ice was there around these containers? A. Do you mean the packages they was shipped in? Q. Yes, sir, boxes and barrels. A. They was anywhere from nothing to half full. Q. I will ask you whether or not that would have anything to do with the oysters remaining in good condition during shipment. A. Yes, sir. Q. What? A. They won't keep without ice."

As to the condition the containers were in one of plaintiffs testified: "Q. I wish you would explain to the...