Thomas Foods, Inc. v. Pennsylvania R. Co.

• Citation: 168 N.E.2d 612,112 Ohio App. 76
• Parties: , 16 O.O.2d 18 THOMAS FOODS, INC., Plaintiff-Appellee, v. PENNSYLVANIA RAILROAD COMPANY, Defendant-Appellant.
• Decision Date: 28 March 1960
• Court: United States Court of Appeals (Ohio)

Page 76

112 Ohio App. 76

168 N.E.2d 612, 16 O.O.2d 18

THOMAS FOODS, INC., Plaintiff-Appellee, v. PENNSYLVANIA RAILROAD COMPANY, Defendant-Appellant.

Court of Appeals of Ohio, First District, Hamilton County.

March 28, 1960.

Alton E. Purcell, Cincinnati, for plaintiff-appellee.

Taft, Stettinius & Hollister, John W. Hudson, Cincinnati, for defendant-appellant.

O'CONNELL, Judge.

On April 14, 1954, California Frozen Foods, Inc. shipped from California to the Plaintiff-Appellee Car No. PFE 200670, partially loaded with frozen spinach. The car was routed through Arlington, Washington to complete loading with frozen peas. The car then moved to Norwood, Ohio, where it was delivered to the plaintiff-appellee, which claimed that some of the frozen food was thawed. The said plaintiff-appellee then filed a claim with the carrier, which claim was rejected. Thereupon, it filed this action in which it claimed damages.

The case was tried in the lower court without a jury. And many of the facts were stipulated by the parties. These stipulations are as follows:

'1. Plaintiff is a corporation organized and existing under the laws of the State of Ohio. Defendant is a corporation organized and existing under the laws of the State of Pennsylvania, and is engaged in business as a common carrier of goods and passengers by rail and owns and operates a system of rails part of which traverse the State of Ohio.

'2. On or about the first part of April, 1954, plaintiff purchased from California Frozen Foods, Inc., at Modesto, California, 1,379 cases of leaf spinach and from Twin City Foods, Inc., at Arlington, Washington, 1134 cases of peas. Attached hereto and made part hereof are copies of Certificates of Quality and Condition for Processed Fruits and Vegetables of the United States Department of Agriculture with reference to a portion of said spinach. Attached to plaintiff's deposition of James Peterson and Harold Lien, and marked as Exhibit 2 thereof, is a copy of Certificate of Quality and Condition for Processed Fruits and Vegetables of the United States Department of Agriculture with reference to said peas.

'3. California Frozen Foods, Inc., ordered from Southern Pacific Company a refrigerator car for the purpose of shipping to plaintiff the 1,379 cases of frozen leaf spinach. The car, numbered PFE 200670, was placed for loading on April 13, 1954, at 6 p. m., and the loading was begun about 11 a. m. and completed about 3 p. m. on April 14, 1954 by the shipper, California Frozen Foods, Inc.

'4. The records of the Southern Pacific Co. show: that said car was inspected by its inspector on April 6, 1954, at Roseville, California; that he reported no defects in said car; that the car was not used before it was placed at California Frozen Foods, Inc., place of business for loading on April 13, 1954; and that no repairs of any kind were made on it in transit from Modesto, California, to Norwood, Ohio.

'5. The 1,379 cases of frozen spinach were loaded in the refrigerator car by the employees of California Frozen Foods, Inc., from end to end and from side to side of the car and covered the entire floor of the car.

'6. After the spinach was loaded the car was picked up about 5 p. m. on April 14, 1954, by the Southern Pacific Company at the place of loading and was consigned to plaintiff at Norwood, Ohio, first stop to complete loading at Glacier Cold Storage Company at Arlington, Washington. It arrived at Auburn, Washington, at 5:35 a. m., Sunday, April 18, 1954, and left Auburn for Arlington, Washington, at 6:35 a. m., Monday, April 19, 1954, where it arrived and was placed at the warehouse of Glacier Cold Storage, Inc., for completion of loading on April 19, 1954, at 11:45 a. m. according to the records of the Glacier Cold Storage Company.

'7. After the car was placed at its warehouse, the Glacier Cold Storage Company loaded into the car 1,134 cases of peas which had been placed in its warehouse by Twin City Foods, Inc. The car left Arlington at 8:10 p. m. the same day and arrived at Auburn, Washington, at 12:50 a. m., April 20, 1954. It arrived at Norwood, Ohio, on April 27, 1954, and was placed for unloading at 10:00 a. m. on that day.

'8. The shipments loaded in the car were covered by a uniform straight bill of lading, a correct copy of which is attached hereto and made part hereof. The bill of lading provided for 'Standard Refrigeration' which term is defined in Perishable Protective Tariff No. 16, Local Joint and Proportional Charges and Rules and Regulations covering the handling of perishable freight at, from and to points in the United States under which Tariff this shipment moved. This Tariff was properly filed and in effect at the time the shipment moved.

'9. Rules numbered 80, 130 and 135 of said Tariff are as follows:

"Rule No. 80

"(A) On carload shipments, shippers must declare in writing on shipping order and/or bill of lading, at loading station, the protective service desired as authorized by this tariff.

"(B) Upon receipt of shipping order and/or bill of lading agents must enter on regular weigh bill the full name of the shipper and notation for protective service in accordance with the class of protective service selected by shipper as authorized by this tariff.

"(C) Blanket instructions relating to protective service will not be accepted. Instructions as authorized in the rule governing the service selected must be filed covering each individual shipment.

"Rule No. 130

"Carriers furnishing protective service as provided herein do not undertake to overcome the inherent tendency of perishable goods to deteriorate or decay, but merely to retard such deterioration or decay insofar as may be accomplished by reasonable protective service, of the kind and extent requested by the shipper, performed without negligence.

"Rule No. 135

"Property accepted for shipment under the terms and conditions of this tariff will be received and transported subject to such directions, only, and to such election by the shipper respecting the character and incidents of the protective service as are provided for herein. The duty of the carriers is to furnish without negligence reasonable protective service of the kind and extent so directed or elected by the shipper, and carriers are not liable for any loss or damage that may occur because the directions of the shipper were incomplete, inadequate or ill-conceived.'

"Standard Refrigeration,' as defined in Item 25920 of said Tariff and as referred to in said bill of lading, means protective service against heat by use of ice placed in the tanks or bunkers of refrigerator cars. Rule 201 of said Tariff provides that the shipper must declare in writing on the shipping order and/or bill of lading at loading station the service desired as authorized by this Rule using one of the shipping instructions set forth in the Rule. One of these instructions is 'Standard Refrigeration Service with Salt.' The rule then provides that the Shipper must indicate the amount of salt under the provisions of Rule 203 of said Tariff. The shipper, in compliance with these rules, placed the following instructions on the bill of lading: 'Standard Refrigeration--coarse ice--39% salt.' Rule 203 then provides that the Freight Agent for the carrier must enter on the waybill covering the shipment the following instruction: 'Re-ice the capacity at all regular icing stations with coarse ice and 30% salt.' This notation was placed on the waybill covering the shipment in question in this action.

'11. The record of the railroad companies show: (1) that the following are all of the regular 'icing stations,' as defined by the tariff, between the origin and destination of said shipment over the route provided for in the bill of lading: (2) that ice and salt were supplied at these icing stations as listed below, to-wit:

                                                             Ice            Salt
                Station               Date     Hour     Supplied lbs.  Furnished lbs
                -------               ----     ----     -------------  --------------
                Modesto, Cal.         4/12     11 A.M.     14,100          4,230
                Modesto, Cal.         4/12      3 P.M.      2,700            810
                Modesto, Cal.         4/14      7 P.M.      3,600          1,080
                Roseville, Cal.       4/16      4 A.M.      2,800            840
                Klamath Falls, Ore.   4/16      9 P.M.      1,600            480
                Brooklyn, Ore.        4/17      3 P.M.      1,400            420
                Auburn, Wash.         4/18   5:35 A.M.      2,560            768
                Auburn, Wash.         4/20      3 P.M.      3,620          1,086
                Spokane, Wash.        4/21   2:05 P.M.      2,436            731
                Laurel, Mont.         4/22  10:15 P.M.      2,520            756
                Dilworth, Minn.       4/23  11:45 P.M.      5,130          1,539
                Dayton Bluffs, Minn.  4/25   5:20 A.M.      2,100            630
                Bluee Island, Ill.    4/26   2:30 A.M.      1,000            300
                Cincinnati, Ohio      4/27   6:15 P.M.      4,500          1,350
                

(3) that the amount of ice and salt listed above filled the car to capacity at each icing, and (4) that vents were closed and plugs in on arrival at each icing station.

'12. On April 28, 1954, the car and its contents were inspected by the Railroad Perishable Inspection Agency, and a correct copy of the report of this inspection is attached hereto and made a part hereof.

'13. Plaintiff paid all freight charges due on the car and filed a claim with the defendant within the statutory period. The claim was rejected by defendant, and this suit was filed within the statutory period after such rejection. If plaintiff is entitled to recover judgment from defendant, which defendant denies, the amount thereof should be $4,742.83 plus interest from April 27, 1954, and costs.

'The temperature at Modesto, California, on April 14, 1954, was: maximum--81~, minimum--53~. The temperature at Arlington, Washington, on April 19, 1954, was: maximum--55~, minimum--37~>. The temperature at Auburn, Washington, on ...