United States v. Savage Truck Line

• Decision Date: 21 December 1953
• Docket Number: No. 6648-6651.,6648-6651.
• Citation: 209 F.2d 442
• Parties: UNITED STATES v. SAVAGE TRUCK LINE, Inc. et al. (four cases).
• Court: U.S. Court of Appeals — Fourth Circuit

209 F.2d 442 (1953)

UNITED STATES v. SAVAGE TRUCK LINE, Inc. et al. (four cases).

Nos. 6648-6651.

United States Court of Appeals, Fourth Circuit.

Argued October 22, 1953.

Decided December 21, 1953.

Cornelius J. Peck, Atty., Department of Justice, Washington D. C. (Warren E. Burger, Asst. Atty. Gen., L. S. Parsons, Jr., U. S. Atty., James R. Moore, Asst. U. S. Atty., and Samuel D. Slade, Atty., Department of Justice, Washington D. C., on the brief), for United States.

F. Elmore Butler, Richmond, Va. (John S. Davenport, III, and Denny, Valentine & Davenport, Richmond, Va., on the brief), for Savage Truck Line, Inc.

James M. Minor, John G. May, Jr., and Ernest G. Garrett, Jr., Richmond, Va., on the brief for Frances E. Harris, Executrix.

Before PARKER, Chief Judge, SOPER, Circuit Judge, and WILKIN, District Judge.

SOPER, Circuit Judge.

These suits grow out of a collision on a four-lane highway of U. S. Route 1 in Hanover County, Virginia, at about 5 A.M. in the morning of March 29, 1951 between a truck owned by Brooks Transportation Company, Inc. and driven by Bernard R. Harris, its employee, and a truck owned by Savage Truck Line, Inc. and driven by its employee Z. F. Payne.

Savage was a common carrier and as such was engaged under a contract with the United States in transporting in its truck from Norfolk, Virginia, to Quonset Point, Rhode Island, a cargo of six airplane engines encased in cylindrical containers. Immediately before the accident the truck was proceeding northwardly in its right hand northbound lane of the highway and was rounding a curve from southeast to northeast when one or more of the cylinders shifted to the left causing the vehicle to cross over the double center line into the southbound passing lane. At this moment the Brooks truck was proceeding southerly in its right hand southbound lane and as the two trucks passed one another, one of the cylinders fell off the Savage truck upon the Brooks truck and killed its driver instantly.

The cylinders weighed 5,000 pounds each. They were 5' 5" in diameter; and five of them were 9' 3" and one of them 7' 7" in height. They were loaded upon the trucks by agents of the United States and placed in an upright position extending above the 7' sides of the uncovered vehicle. They were fastened to the floor of the truck but not sufficiently to stand the strain as the truck sped around the bend in the road, and consequently they came loose causing the truck to swerve across the road, and one of them crashed through the left rear end of the truck and came into collision with the passing vehicle and its driver. The Savage truck continued across the road and turned over on its right side while the Brooks truck turned over on its right side, both on the western shoulder of the highway.

Four separate suits were filed against Savage and the United States. Frances E. Harris, executrix of the deceased driver of the Brooks truck, sued Savage and the United States in separate suits for damages for his death. Brooks filed separate suits, one against Savage and one against the United States for damages to its truck. The United States, as defendant in two of the suits, filed a third party complaint against Savage seeking recovery for the damage to the engines and also indemnity for any liability that might be established against the United States in favor of the primary plaintiffs. Savage, as defendant in two of the suits, filed a third party complaint against the United States claiming indemnity for any liability that might be established against it in favor of the primary plaintiffs. Savage also filed a counterclaim for damages to its truck in the third party proceeding instituted by the United States in the suit of Brooks v. United States.

The four cases were consolidated for trial; and simultaneously the two suits against Savage were tried before a jury, while the two suits against the United States under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., were tried before the District Judge. The jury found a verdict against Savage for $15,000 in favor of the executrix for the death of Harris, and a verdict for $5844.83 in favor of Brooks for the stipulated damages to the truck. The judge held that the agents of the United States were guilty of negligence in failing to fasten the cylinders securely upon the truck, and that Savage was guilty of negligence in accepting the cargo for transportation and in operating the truck with knowledge of this condition. Accordingly he entered judgment against the United States in favor of the primary plaintiffs in the same amounts as were found by the jury in the cases against Savage.

The judge further held that if either the United States or Savage paid the judgments against it in favor of the primary plaintiffs, it was entitled to contribution from the other; but that the United States was not entitled to recover from Savage under its third party complaint for damages to the cylinders, and that Savage was not entitled to recover from the United States under its counterclaim for damages to its truck. By these holdings the judge also denied the claim of the United States against Savage and the claim of Savage against the United States for indemnity.

On this appeal the United States does not challenge the judgments against it in favor of the primary plaintiffs, but agrees that the adverse findings of the judge cannot be said to be clearly erroneous. It does claim, despite the finding of negligence on its part in loading the truck, (1) that it is entitled to recover from Savage the damages to the engines because of the liability of a common carrier to a shipper; and (2) that it is entitled to indemnity for its liability to the primary plaintiffs, because the driver of the Savage truck knew of the unsafe condition of the cargo, and because it was within his power to avert the accident by driving with the care required by the circumstances.

Savage does not challenge its liability to the primary plaintiffs, but denies any liability to the United States for damages to its engines or for indemnity against the claims of the primary plaintiffs; and Savage has filed a cross-appeal in which it claims the right to recover from the United States for the damages to its truck, because of the negligence of the United States in loading the engines thereon.

The decision of the questions raised by these appeals as to the respective liabilities of the United States and of Savage for the damages occasioned by each to the property of the other turns on the rights and liabilities inherent in the carrier-shipper relationship between them in the interstate transaction upon which they were engaged. These rights and liabilities are fixed by the Acts of Congress, the terms of the contract contained in the bill of lading, and the rules of the common law which are recognized by the federal courts. The bill of lading in this case throws no added light on the issue since it declared that it was issued subject to the rules and conditions which govern commercial shipments generally. The common law liability of a common carrier is that of an insurer for loss or damage of goods in transit with certain well defined exceptions. The federal statutes and decisions are in accord. It is provided by 49 U.S.C.A. § 20(11) which is made applicable to carriers by motor vehicle by 49 U.S.C.A. § 319 that common carriers shall issue a bill of lading for property received for transportation in interstate commerce and shall be liable to the holder for any loss, damage or injury to the property caused by the carrier; and that no contract shall exempt the carrier from the liability imposed. See Cincinnati N. O. & Tex. Pac. Ry. v. Rankin, 241 U.S. 319, 326-327, 36 S.Ct. 555, 60 L.Ed. 1022; Chicago & E. I. R. R. Co. v. Collins Produce Co., 249 U.S. 186, 192, 39 S.Ct. 189, 63 L.Ed. 552; Louisiana Southern Ry. Co. v. Anderson, 5 Cir., 191 F.2d 784; Commodity Credit Corp. v. Norton, 3 Cir., 167 F.2d 161.

The exceptions to the rule of absolute liability are those which relate to losses arising from acts of God, acts of the public enemy, the inherent nature of the goods, and acts of the shipper. It is contended in this case that the carrier falls within the last mentioned exception because of the negligence of the United States in loading the engines and fastening them insecurely to the floor of the truck. The evidence in the case and the findings of the District Judge sustain this charge factually; but it does not follow that the carrier was thereby exempted from its ordinary responsibility for the safe carriage of the goods. It has been held in sweeping terms that the duty rests upon the carrier to see that the packing of goods received by it for transportation is such as to secure their safety. Hannibal & St. J. R. R. Co. v. Swift, 12 Wall. 262, 273, 20 L. Ed. 423. Moreover, it is provided by 49 U.S.C.A. § 316(b) that it shall be the duty of every common carrier by motor vehicle to furnish adequate facilities for the transportation of property and to establish and enforce just and reasonable regulations and practices relating to the manner of packing and delivering goods for transportation; and it is also provided by regulations of the Interstate...