Tri-State Fruit Growers' Ass'n v. St. Louis-San Francisco Ry. Co.

• Decision Date: 02 July 1924
• Docket Number: No. 3541.,3541.
• Citation: 264 S.W. 445
• Parties: TRI-STATE FRUIT GROWERS' ASS'N v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

264 S.W. 445

TRI-STATE FRUIT GROWERS' ASS'N v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 3541.

Springfield Court of Appeals. Missouri.

July 2, 1924.

Appeal from Circuit Court, McDonald County; Charles L. Henson, Judge.

Action by the Tri-State Fruit Growers' Association against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. F. Evans, of St. Louis, and Mann & Mann and W. B. Skinner, all of Springfield, for appellant.

J. A. Sturges, of Pineville, for respondent.

BRADLEY, J.

This is an action to recover damages for the deterioration of a car of strawberries shipped interstate. Plaintiff recovered a judgment for 81,172.11, and defendant appealed.

As grounds for recovery plaintiff alleged: (1) Failure to furnish a car in condition to keep and preserve the necessary amount of ice; (2) failure in the first instance to supply the car with sufficient ice; (3) failure to re-ice at icing stations; and (4) the failure to keep the hatches closed. The answer is a general denial, and a plea to the effect that plaintiff attempted to re-ice and neglected to do so sufficiently to maintain refrigeration, and thereby caused its own injury.

Defendant assigns error: (1) On the refusal of its instruction in the nature of a demurrer; (2) on the instructions given and refused; and (3) on the admission of evidence.

On the morning of May 24, 1921, plaintiff placed with defendant's agent at Southwest City, Mo., its order for a refrigerator car to be placed ready for loading by 7 o'clock next morning. Pursuant to this order defendant iced the car at Rogers, Ark., the nearest icing station, and forwarded same to Southwest City on the afternoon of the 24th. Plaintiff commenced loading about noon the 25th, but did not finish until late in the afternoon of the 26th. The car was not billed out until the morning of the 27th, and reached Rogers, Ark., at 2 p. m. on that day. The car was consigned to the Ozark Fruit Growers' Association, Kansas City, Mo., subject to diversion by the consignee. The consignee diverted, and directed delivery to W. R. Cady, Chicago. When delivered in Chicago, the shipment was damaged because of insufficient refrigeration.

The cause went to the jury on the first and second grounds, to wit: (1) ?allure to furnish a car properly equipped to preserve the ice; and (2) the failure to properly ice the car when furnished. These grounds were submitted in the alternative.

Where a carrier agrees to transport goods in a refrigerator car, it impliedly undertakes to exercise such care and diligence as that class of goods requires, although the care and diligence required is greater than that required in the transportation of ordinary commodities. 4 Elliott on Railroads (3d Ed.) § 2224; Chicago & Alton Railroad Co. v. Davis, 159 Ill. 53, 42 N. E. 382, 50 Am. St. Rep. 143; Gibson v. Railroad, 93 Ark. 439, 124 S. W. 1033; Philadelphia, B. & W. R. Co. v. Diffendal, 109 Md. 494, 72 Atl. 193, 458; 10 C. J. p. 93, § 101. As a general rule, a carrier as to most commodities delivered to it for transportation is an insurer against all results incident to the transportation, except injuries resulting from the act of God, the public enemy, and the fault of the shipper, but it is only liable for deterioration in perishable goods in case of negligence. Philadelphia, B. & W. It. Co. v. Diffendal, supra. A failure to ice a car for the protection and preservation of the goods to be shipped is a breach of duty and an act of negligence. 10 C. J. p. 92, § 101, note; Brennisen v. Railroad, 100 Minn. 102, 110 N. W. 362, 10 Ann. Cas. 169, and note; C. C. Taft Co. v. American Express Co., 133 Iowa, 522, 110 N. W. 897.

There was evidence that this car was leaking more than the ordinary car should. A witness of experience testified that, if the car had been properly equipped to preserve ice, the original icing, if to capacity, and the additional 2,000 pounds added at loading station, should have been sufficient to maintain refrigeration until the car reached Rogers, the first icing station after loading was finished. This evidence tended to establish plaintiff's charge that the car furnished was not in condition to properly keep and preserve the ice.

Was there any evidence that the car was not properly iced when furnished? More of plaintiff's evidence was directed to the point that the car was defective so far as appertained to equipment for ice preservation than to the point that the car was not sufficiently iced in the first instance. There was evidence, however, tending to show that the car was not sufficiently iced. George Horton, who assisted in loading the car, testified that in the afternoon on the day loading was finished his attention was attracted to the car, because water had ceased flowing, and that he looked in the bunkers and that the ice was two feet below the berries; that all the ice had settled to the bottom, and that there was no piece larger than 50 pounds. Also defendant's evidence was to the effect that the car as to refrigerator equipment was not defective. If the car was not defective, and it was iced to capacity it should have, with the additional 2,000 pounds, maintained refrigeration until it reached Rogers, according to plaintiff's evidence. There is...