Van Lierop v. Chesapeake & O. Ry. Co.

Decision Date10 March 1953
Docket NumberNo. 48,48
Citation335 Mich. 702,57 N.W.2d 431
PartiesVAN LIEROP v. CHESAPEAKE & O. RY CO.
CourtMichigan Supreme Court

Anderson & Anderson, Paw Paw, Norman F. Crawford and John J. Holden, Detroit (William R. Althans, Detroit, of counsel), for defendant and appellant.

Jackson, Fitzgerald & Dalm and Ivan M. Wheeler, Kalamazoo, for plaintiff and appellee.

Before the Entire Bench.

SHARPE, Justice.

This is an action for damages for failure to properly transport 3 carloads of gladiolus bulbs from Grants Pass, Oregon, to Hartford, Michigan.

The following are admitted facts: In September, 1946, plaintiff, J. C. Van Lierop, a gladiolus bulb grower and dealer, of Hartford, Michigan, arranged at Grants Pass, Oregon, for the purchase and later shipment of gladiolus bulbs. The bulbs were loaded on cars and shipped in January and February, 1947. One car was loaded January 3, 1947, and released to the Southern Pacific Railway Company. Another car was loaded on January 6 and 7, 1947, and released to the Southern Pacific Railway Company. The third car was loaded February 11, 1947, and released to the Southern Pacific Railway Company. The first and second cars arrived in Hartford, Michigan, on January 16 and 17, 1947. The third car arrived in Hartford, Michigan, February 24, 1947. The bill of lading for the first car described '310 Bags, Gladiolus Bulbs', bore the notations 'SL&C', 'Standard Ventilation', 'Carriers' Protective Service within Heater Territory', 'Shippers' Specified Service, Rule 514 beyond'. The bill of lading designated the Union Pacific Railroad Company and the Chicago and North Western Railway Company as intermediate carriers and the Chesapeake and Ohio Railway Company as terminating carrier.

The carriers participating in the movement of the second car were the same as those participating in the first and third cars, with the exception of the movement of the cars in Chicago. The Uniform Straight Bill of Lading covering the second car differs from those covering the first and third cars in that no reference is made on the bill of lading with respect to standard ventilation.

The bulbs were packaged in burlap bags and the bags were loaded in the cars in a manner to provide air channels between the bags for the purpose of providing ventilation. From the time the bulbs were shipped from Grants Pass, Oregon, until they reached Chicago, the bulbs were under so called Carriers' Protective Service and from Chicago, Illinois, to Hartford, Michigan, the bulbs were carried under Shippers' Specified Service. When the bulbs arrived in Hartford, Michigan, some of them were in a damaged condition. On February 1, 1947, plaintiff wrote the Michigan State Department of Agriculture's Bureau of Plant Industry for an annual inspection.

About one month after the first and second cars arrived, an inspection was made by the state inspectors. The state inspectors took two or three bushels of bulbs to Dr. Ray Nelson, Research Plant Pathologist, at Michigan State College, for further examination. On July 10, 1947, plaintiff requested an inspection of all bulbs shipped. The state inspector, after an examination, condemned all the bulbs for disease: 'Bulbs, 90% are very rotten; penicillium, fusarium, and so forth'. The cause came on for trial, and at the close of plaintiff's testimony, defendant made a motion for a verdict of no cause of action, for the reason that there was no competent evidence showing arrival of the bulbs in an improper condition, and no evidence form which the jury could arrive at a verdict as to the amount, other than by pure guess and speculation.

The trial court denied defendant's motion. The jury was requested to answer the following special questions: 'Do you find that the bulbs in question were damaged by freezing or frost in transit?'; 'Do you find that the bulbs in question were damaged by artificial overheating in transit?'; 'Do you find that the bulbs in question were diseased when shipped?'; 'Do you find that the bulbs in question were damaged by lack of ventilation in transit by reason of the negligence of the carrier?'. The jury returned a verdict for plaintiff, in the amount of $41,797.46 and answered 'no' to the first three questions and 'yes' to the fourth question. Defendant appeals. We shall first discuss the correctness of the trial court's ruling on defendant's motion for a directed verdict. In doing so it will be necessary to summarize the evidence offered by plaintiff at the time the motion was made, as well as the theory upon which the case was brought.

In the case at bar, the transportation of the bulbs from Oregon to Micigan is interstate commerce, and is governed by the provisions of the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq. The following section of the act reads as follows:

'Any common carrier, railroad, or transportation company subject to the provisions of this chapter receiving property for transportation trom a point in one State * * * to a point in another State, * * * shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass * * * when transported on a through bill of lading * * *; and any such * * * railroad * * * so receiving property for transportation from a pint in one State * * * to a point in another State * * * railroad * * * delivering said property so received and transported shall be liable to the lawful holder of said receipt or bill of lading or to any party entitled to recover thereon, whether such receipt or bill of lading has been issued or not, for the full actual loss, damage, or injury to such property caused by it or by any such * * * railroad * * * to which such property may be delivered or over whose line or lines such property may pass within the United States * * * when transported on a through bill of lading * * *.' 49 U.S.C.A. § 20(11).

By virtue of the above act, the receiving carrier of an interstate shipment of goods for transportation issues a through bill of lading, although the place of destination is on the line of another carrier. Such a bill of lading is both a receipt and contract of carriage and delivery. See Fosgate Co. v. Atlantic Coastline R. Co., 263 Mass. 192, 160 N.E. 783. In the case at bar, the bill of lading carried the instructions 'Carriers' Protective Service.' This service is compulsory within heater territory on shipments originating in heater territory from November 16 to March 1.

Carriers' Protective Service was contracted for between Oregon and Chicago and is defined as follows:

'Carriers' Protective Service means that the carrier will protect the shipment within the heater territory (see rule 500) against frost, freezing or artificial overheating, furnishing, if necessary, artificial heat, or such other protective service as may be necessary to obtain that result.'

Shippers' Specified Service was contracted for between Chicago, Illinois and Hartford, Michigan and is defined as follows:

'Shippers' Specified Service means that protection against frost, freezing, or artificial overheating will be supplied by use of heaters furnished, installed, and serviced by carriers as directed by shipper, in accordance with the provisions and charges published in rules 513, 514, 516, 519, 526 or 527.'

Under Carriers' Protective Service, no instructions could be given the carrier as to manner of handling the cars while in heater territory. The cars were completely in the control of the Carriers' Protective Service. It was the duty of the carrier to set a standard of care necessary for the transportation of perishable commodities. When a shipment passed beyond heater territory, it was handled under standard ventilation, unless the shipper, owner or consignee filed specific instructions to the contrary.

At the conclusion of plaintiff's case, there was evidence that the bulbs were in good and proper condition for shipment when received by the initial carrier at Grants Pass, Oregon. This evidence was supplied by some of the growers of the bulbs, the Oregon State Inspector, and by a person who loaded the cars. There was evidence that the bulbs were loaded in the cars in burlap bags, a customary container for shipment, and were loaded in the cars in a manner to provide air channels between the bags, a customary practice in the loading of refrigerator cars in shipment of gladiolus bulbs; that the bags of bulbs were all labeled with tags showing the shippers name, the variety of bulbs, the grade or size of bulbs and the number of bulbs in each sack. There also was evidence that when the bulbs arrived in Hartford, Michigan, they were not in good condition and not fit for sale or planting, by reason of the fact that some of the bulbs were rooting, some were sprouting, were matted together and the bags wet; that upon arrival at Hartford, Michigan, the temperature inside the cars was 90 to 100 degrees; that steam rolled out of the cars when they were opened; the inside walls and ceiling of the cars were dripping wet, and that bulbs will break their dormancy when there is moisture present at a temperature of 40 to 45 degrees.

It is the general rule that in actions brought...

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  • Marks Manufacturing Co. v. New York Central R. Co.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • August 31, 1971
    ...to the initial carrier in good condition and received at its destination in a damaged condition." Van Lierop v. Chesapeake & Ohio Railway Co., 335 Mich. 702, 710, 57 N.W.2d 431, 435 (1953). See, Home Insurance Co. v. New York Central Railroad Co., 372 Mich. 62, 124 N.W.2d 911, 915, 917 (196......
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    ...of the trial court. Deffenbaugh v. Inter-State Motor Freight Corporation, 254 Mich. 180, 183, 235 N.W. 896; Van Lierop v. Chesapeake & Ohio Ry. Co., 335 Mich. 702, 57 N.W.2d 431; Murchie v. Standard Oil Co., 355 Mich. 550, 94 N.W.2d Under the record in the instant case it may not be said th......
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    ...the review of cases on the ground that the verdict is against the great weight of the evidence. In Van Lierop v. Chesapeake & O. Railway Co., 335 Mich. 702, 713, 57 N.W.2d 431, 436, Justice Sharpe 'It is the general rule that the granting of a new trial rests on the sound discretion of the ......
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    ...296 Mich. 270 (296 N.W. 253) (1941), Edgecomb v. Traverse City Sch. Dist., 341 Mich. 106 (67 N.W.2d 87) (1954), Van Lierop v. C. & O.R. Co., 335 Mich. 702 (57 N.W.2d 431) (1953), Januska v. Mullins, 329 Mich. 606 (46 N.W.2d 398) (1951). See also 22 Am.Jur.2d, Damages, § 33, p. 'Whether Schr......
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