Stoddard Lumber Co. v. Oregon-Washington R. & Nav. Co.

• Decision Date: 29 May 1917
• Parties: STODDARD LUMBER CO. v. OREGON-WASHINGTON R. & NAV. CO.
• Court: Oregon Supreme Court

165 P. 363

84 Or. 399

STODDARD LUMBER CO. v. OREGON-WASHINGTON R. & NAV. CO.

Supreme Court of Oregon

May 29, 1917

In Banc.

Appeal from Circuit Court, Baker County; Gustav Anderson, Judge.

Action by the Stoddard Lumber Company against the Oregon-Washington Railroad & Navigation Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action brought to recover damages sustained by plaintiff's assignors, Stoddard Lumber Company, a Utah corporation, and Shockley & McMurren Lumber Company, by reason of the alleged failure of a connecting carrier of the defendant to notify plaintiff's assignors of the nondelivery of shipments of box shooks, carried over the lines of defendant and its connecting carriers, in the year 1912. The complaint sets up five causes of action. It appears that plaintiff's assignors had received orders from Pierce & Maternes, of Hotchkiss, Colo., for the shooks in question, and that pursuant to these orders the first carload was shipped from Baker, Or., July 29, 1912, reaching Hotchkiss on August 12th. The car mentioned in the second count of the complaint left Baker August 2d, and reached Hotchkiss August 14th; that mentioned in the third count left Baker August 17th, arriving at Hotchkiss September 7th; that in the fourth count left Baker August 19th, and reached Hotchkiss September 4th; that mentioned in the fifth count being the car sold by Shockley & McMurren Lumber Company left Baker August 10th, and reached Hotchkiss August 23d. The shipments were in each case consigned to the order of the shipper, and a direction was written on the bill of lading requiring the carrier to notify Pierce & Maternes. The bill of lading in each case was handed by plaintiff's assignors to the Baker Loan & Trust Company, by which course it was transmitted to the Bank of North Fork at Hotchkiss Colo. A draft for the purchase price accompanied the bill of lading, and the instructions given to the Hotchkiss bank required it to insist upon payment of the draft before surrender of the bill of lading.

The goods in each case reached Hotchkiss over the lines of the Denver & Rio Grande Railroad Company. It is conceded that this carrier notified Pierce & Maternes, and that Pierce &amp Maternes failed to take up the bills of lading. The defendant alleges in its answer that these purchasers promised from day to day that they would secure the bills of lading and accept delivery of the goods, but no evidence was offered in support of this allegation. No notice was given plaintiff's assignors of the nondelivery of the goods, and on September 26th they applied to the defendant at Baker to send a tracer after the shipments. On the following day, September 27th they were notified that the box shooks were still undelivered at Hotchkiss. The shooks were suitable for the making of peach boxes and for no other purpose. At the time when they reached Hotchkiss, the evidence satisfactorily shows an active market for peach boxes, justifying the conclusion that, if plaintiff's assignors had been promptly notified, they could have disposed of the goods. About September 15th the peach crop in that part of Colorado was destroyed by frost, and thereafter the box shooks were unsalable. By the time plaintiff's assignors were notified of the nondelivery of the goods, considerable charges had accumulated against them for freight and demurrage. Plaintiff's assignors refused to pay these charges. The railroad company thereupon stored the goods in the vicinity and sold them during the following season, accounting to plaintiff's assignors for the net proceeds, which were received under a stipulation that plaintiff should not be prejudiced thereby in this litigation.

Plaintiff claims the right to charge the defendant with the dereliction of its connecting carrier, under the Carmack Amendment to the Interstate Commerce Law. The jury found for plaintiff in the invoice value of the shipments, less the sums which had been paid plaintiff's assignors on the sale of the box shooks in 1913. The defendant appeals.

William D. Riter, of Salt Lake City, Utah (James H. Nichols, of Baker, on the brief), for appellant. John L. Rand, of Baker, for respondent.

McCAMANT, J. (after stating the facts as above).

Plaintiff's right of action in this case is based wholly on its contention that, where goods cannot be delivered by a terminal carrier in accordance with the contract of transportation, the duty devolves on such carrier to notify the owner of the goods, whether he be consignor or consignee. This principle is challenged by counsel for defendant. The liability of an initial carrier under the Carmack Amendment is only that imposed by the common law on its connecting carrier. Adams Express Co. v. Croninger, 226 U.S. 491, 511, 33 S.Ct. 148, 57 L.Ed. 314, 44 L. R. A. (N. S.) 257. Judson on Interstate Commerce (2d Ed.) § 46. The common law was evolved before the days of mail and telegraphs. We cannot, therefore, expect to find in the common law anything more than a statement in general terms of the duties devolving on a common carrier when it becomes impossible for the carrier to deliver shipments in accordance with the contract of carriage.

The common-law principle is that in such case the carrier is charged with the duty of ordinary care and diligence for the protection of the property of the owner. 4 Elliott on Railroads (2d Ed.) § 1463; 2 Hutchinson on Carriers (3d Ed.) § 714. What, then, is the duty which ordinary care and diligence, as applied to the conditions under which we live, impose upon a terminal carrier when it is unable to deliver a shipment at the point of destination? The shipments so carried by interstate carriers are of great variety; some of them are perishable, many of them fluctuate in value, many of them are valuable only in limited territories and for short seasons, and their marketing often requires special skill and instruction. It is not to be expected that the terminal agents of the carrier will be advised in all cases of the value of the shipments, or of the proper method of caring for them and protecting their owners from loss. The Interstate Commerce Commission, in the case of Kehoe v. Nashville Co., 14 Interst. Com. Com'n, 555, 556, said:

"It is in the interest of the public that the consignor should be promptly notified when the shipment is not delivered."

We think the interests of the carrier are subserved by a rule which requires notice to the consignor within a reasonable time after the refusal or failure of the consignee to accept delivery. A rule which requires such prompt notification will be of value in releasing the rolling stock of the carrier and making it available for future business. Ordinarily, a post card notification would be sufficient.

There is a conflict of authority on the question as noted by this court in Normile v. Oregon Co., 41 Or. 177, 182, 69 P. 928. We think the weight of authority sustains the principle that in such case the carrier must exercise due diligence to notify within a reasonable time. 5 Thompson on Negligence, § 6622; 12 A. & E. Enc. of L. (2d Ed.) 557; Nashville Co. v. Dreyfuss Co., 150 Ky. 333, 150 S.W. 321; American Co. v. McGhee, 96 Ga. 27, 21 S.E. 383; Alabama Co. v. McKenzie, 139 Ga. 410, 77 S.E. 647, 45 L. R. A. (N. S.) 18; Michigan Co. v. Harville, 136 Ill.App. 243, 253; Carrizzo v. New York Co., 66 Misc. 243, 123 N.Y.S. 173; Fine v. Barrett, 81 Misc. 234, 142 N.Y.S. 533; Sauer v. Lehigh Valley Co., 150 N.Y.S. 977. This court is partially committed to the doctrine of these authorities. McGregor v. Oregon Co., 50 Or. 527, 536-537, 93 P. 465, 14 L. R. A. (N. S.) 668. As applied to interstate shipments, the question is one of federal law, and the federal Supreme Court is the final arbiter. Its decisions trend in the direction of the above rule. The Thames, 14 Wall. 98, 107, 20 L.Ed. 804; North Penn. Co. v. Commercial Bank, 123 U.S. 727, 734, 8 S.Ct. 266, 31 L.Ed. 287.

Circumstances will doubtless arise from time to time which will relieve the carrier from this duty, as, for example, when the owner of the goods has no place of abode. Butler v. East Tennessee Co., 8 Lea (Tenn.) 32, 34. The burden of showing such a state of facts devolves on the carrier. The authorities cited by the defendant state no consistent rule. Some of them hold that the duty of carriers is a variable duty, dependent upon the circumstances. Steamboat Keystone v. Moies, 28 Mo. 243, 246; Manhattan Co. v. Chicago Co., 9 A.D. 172, 41 N.Y.S. 83, 85; Kremer v. Southern Express Co., 6 Cold. (Tenn.) 356. Some of the authorities relied on by defendant involve no question of notice. Fisk v. Newton, 1 Denio (N. Y.) 45, 43 Am. Dec. 649; Ginnochio v. Missouri Co., 153 Mo.App. 598, 134 S.W. 1028. Others of the authorities cited sustain defendant's contentions. Hudson v. Baxendale, 2 Hurlstone & N. 575; Weed v. Barney, 45 N.Y. 344, 6 Am. Rep. 96. These cases are out of harmony with the weight of American authority, and, in our judgment, are not sustained by sound reasoning.

The lower court charged the jury in the case at bar that the terminal carrier was chargeable with the duty of due diligence in the protection of the property of plaintiff's assignors, and that, if the jury found that reasonable care of the property required notice to plaintiff's assignors, then the jury should find for plaintiff on this issue. We think the charge of the court was more favorable to the defendant than was warranted by the law.

The defendant contends that the above principle is inapplicable to this case, because the goods were consigned by the shipper to its own order, with directions to notify Pierce &amp Maternes; that by this method of shipment the shipper made Pierce & Maternes its agents for the purpose of receiving notice;...