Opinion
No. 21727.
October 5, 1953.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, THOMAS R. HUNT, J.
Alvin C. Randall, Hogsett, Truppe, Depping, Houts James, Kansas City, for appellant.
Warren S. Earhart, Kansas City, for respondent.
The plaintiff, who is respondent here, sued the Chicago, Milwaukee, St. Paul and Pacific Railroad Company (hereinafter referred to as the Milwaukee), and the Chicago, Rock Island and Pacific Railroad Company (hereinafter referred to as the Rock Island), for damages in transit to a carload of tomatoes. The court sustained the motion of the Milwaukee for a directed verdict, and the verdict of the jury was for the plaintiff and against the defendant Rock Island for $1,250. The Rock Island has appealed.
The shipment originated in the Republic of Mexico, for delivery on a through bill of lading to Minneapolis, Minnesota, via Kansas City, Missouri. The Rock Island became the intermediate carrier in New Mexico at 9:40 p. m. January 19, 1948, and delivered the car in question in Kansas City, Missouri at 1:20 p. m. Wednesday, January 21. Plaintiff was immediately notified of the car's arrival at Kansas City, Missouri, and an agent of the plaintiff made a thorough examination of its contents. He found the tomatoes in satisfactory condition and by 5:25 the same afternoon ordered the Rock Island to divert the car to the Milwaukee for transportation to Minneapolis, to be delivered to D. L. Piazza Company, plaintiff's sales agent there. At the time of the order of diversion the car was located in the Missouri Produce Terminal in the Kansas City yards, and plaintiff's agent, a man experienced in such matters, testified it usually required about fifteen minutes to switch a car from that location to another track for diversion, for which purpose a switching engine is kept available at all hours. However, the Rock Island did not deliver the car to the Milwaukee until Friday, January 23, at 4:00 a. m. Defendant admits the period between the order of diversion and the delivery to the Milwaukee was 34 hours and 20 minutes. The Milwaukee had a daily schedule of departure from Kansas City, Missouri to Minneapolis for freight of a perishable nature, one train leaving at 5:30 a. m., arriving at Minneapolis at 7:00 p. m. on the next night, and a train leaving Kansas City at 5:20 p. m., arriving at St. Paul at 10:30 the next night. Plaintiff contends that if the car had left on either Milwaukee train on January 22, it would have arrived in time for the market of January 24. Both railroad companies had knowledge of the nature of the car's contents while handling it. The car of tomatoes left Kansas City via the Milwaukee at 8:55 a. m. Friday, January 23, and arrived in Minneapolis at 5:00 a. m. Monday, January 26. The Piazza Company was so notified at 9:00 a. m. that day, but the car was not available at the railroad fruit house until that afternoon, January 26.
Upon inspection of the shipment by Piazza at Minneapolis on the afternoon of Monday, January 26, it was found that many of the tomatoes were decayed, overripe, diseased, discolored and shrunken. The inspector testified that if the tomatoes had arrived in Minneapolis in good shape on Friday, January 23, the market value would have been $4,800; that there was a decline in the market for tomatoes between Friday, January 23 and Tuesday, January 27; that the market value of tomatoes when they arrive at Minneapolis available for unloading was $2,380, which, in fact, was the price for which they were sold.
Defendant's evidence was that there was a decline in the tomato market in Minneapolis of 37 cents per lug between Friday, January 23, and Monday, January 26; that there were no government market quotations published on Saturday; that the Saturday market was usually that quoted for Friday; that the shipment arriving Friday afternoon, would be too late for the Friday market; that there was no market at all on Sunday.
Defendant first contends that plaintiff failed to make a submissible case because, having the burden to prove negligent delay and damages as a direct result thereof, it failed to prove the delay or negligence on defendant's part. In this connection defendant asserts that the section of the Interstate Commerce Act, 49 U.S.C.A. § 20 (11), giving certain rights of action for damages to a shipper against certain carriers of his shipment, has no application. That section, known as the Carmack Amendment to the Interstate Commerce Act, gives a right of action for damages against a receiving or delivering carrier for damages for delay caused by any such carrier, or by any other carrier over whose lines the shipment has passed, in cases where the shipment was transported from a point in one state to a point in another state, or from a point in one state to a point in an adjacent foreign country. Defendant points out that it was neither the receiving nor the delivering carrier in the present case, and that the shipment originated, but did not terminate, in the adjacent foreign country. Defendant further urges that Section 387.180, RSMo 1949, V.A.M.S., has no application here. That section declares a liability on a common carrier for damages by delay to a shipment while in transit, and due to its negligence, and places the burden on the carrier to prove that any such delay was not due to its negligence. Defendant argues that this section applies only to intrastate shipments.
The significance of the defendant's position as to the above statutes is that if defendant's construction of the same be correct, it argues that plaintiff has no cause of action against defendant Rock Island for the wrongful acts of other carriers and even so, that plaintiff would not be relieved of the burden to prove the delay was due to the negligent conduct on the part of the defendant Rock Island. It is also the defendant's position that there was no evidence of any negligence on its part.
Plaintiff, too, asserts that 49 U.S.C.A. § 20(11) does not apply to this case since the origin of the shipment was in a foreign state. It does, however, insist that Section 387.180 RSMo 1949, V.A.M.S. applies since the negligence complained of took place in Missouri, and since the Interstate Commerce Act does not apply to the cause of action. Plaintiff further strenuously maintains that even under the Interstate Commerce Act it was the duty of the defendant to transport the shipment with reasonable dispatch and that plaintiff's proof to the contrary, under the circumstances shown, unrebutted by defendant, made out a prima facie case of negligent delay.
Clearly the shipment in question was not intrastate. The transportation did not take place wholly within the limits of Missouri. 11 Am.Jur. page 64, Section 68. That being true, Section 387.180 has no application to this case. Speaking of that section this court said in Fairley v. Chicago, Rock Island and Pacific Ry. Co., Mo.App., 32 S.W.2d 109, 111: "This statute applies only to intrastate shipments". This point is well settled. See, also, Smothers v. Chicago, Rock Island and Pacific Ry. Co., Mo.App., 15 S.W.2d 884.
As to international shipments, Section 20(11) of the Interstate Commerce Act, 49 U.S.C.A. § 20(11), is not confined to such shipments as terminate in an adjacent foreign country. It may apply whether that foreign point be the origin or the final destination of the shipment. The words of the section "to a point" in an adjacent foreign country have been construed to mean "to or from" such point. Galveston H. S. A. Ry. Co. v. Woodbury, 254 U.S. 357, 41 S.Ct. 114, 115, 65 L.Ed. 301. That particular section of the Interstate Commerce Act does not, however, purport to create any cause of action in the shipper against connecting carriers for damages in transit through negligence, but permits suit therefor against the initial or delivering carrier. This does not mean that no other provisions of the Interstate Commerce Act, not here involved, would apply in such an action against a connecting carrier for its own negligence.
Whether or not 49 U.S.C.A. § 20 (11) has any application to the circumstances of this case, we think that plaintiff pleaded a case of liability against the Rock Island. That section itself provides that: "Nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under the existing law". Nor does that section abolish any action against intermediate carriers. Georgia, Florida Alabama Ry. Co. v. Blish Milling Co., 241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948. Plaintiff's petition avers acquisition of the bill of lading, the perishable nature of the shipment, good condition thereof on date of shipment, the value if shipped in reasonable time, the arrival at Minneapolis on January 26, in a damaged condition due to delay by defendant, the consequent loss by decline of the market; that the liability of the Rock Island arose under the common law of Missouri and the other states through which the shipment passed; that it was the duty of the defendant, as a common carrier, to transport the shipment with reasonable dispatch, and under its duty under the common law and contract defendant became an insurer of said freight and undertook to transport the cargo without damage and with reasonable dispatch.
The fact that a shipment may be interstate and that the federal law may apply does not change or diminish the common law liability of a carrier for its own negligent delay. State ex rel. St. Louis, B. M. R. Co. v. Taylor, 298 Mo. 474, 251 S.W. 383, 385; Johnson v. Missouri Pacific R. Co., 211 Mo.App. 564, 570, 249 S.W. 658. In the latter case, 211 Mo.App. on page 571, 249 S.W. on page 660, the court quotes with approval as follows: "In other words the law requires of common carriers due diligence, this being as much a part of their contract as the obligation to deliver the property transported in good condition, and if any unreasonable and unnecessary delay occurs, either in the transportation thereof or its delivery after arrival at the terminus of the route, for the immediate and proximate damages resulting from such neglect of duty the carrier is liable.'" This applies to connecting carriers as well as others. 13 C.J.S., Carriers, § 424, pages 923, 924.
Whether under the common law or under the Interstate Commerce Act it was the plaintiff's burden to prove the delay was due to defendant's negligence. Berry v. Chicago A. R. Co., Mo.App., 208 S.W. 622, 623; Chesapeake Ohio Ry. Co. v. Thompson Mfg. Co., 270 U.S. 416, 46 S.Ct. 318, 320, 70 L.Ed. 654.
The question arises whether the plaintiff made a submissible case of negligent delay against the Rock Island. It has been said that proof of mere delay is not sufficient to show liability against a carrier for loss or damage in transit. Smothers v. Chicago, Rock Island and Pacific Ry. Co., supra; Crowell v. St. Louis-San Francisco Ry. Co., Mo.App., 11 S.W.2d 1055, 1056. Because of the peculiar knowledge of the carrier as to the cause of the delay, only slight evidence is required of the shipper to prove negligent delay in transit. Crowell v. St. Louis-San Francisco Ry. Co., supra. In the case at bar defendant knew of the perishable nature of the car's contents. It was shown that there was available to defendant at all hours a switch engine used at the Missouri Produce Terminal for the purpose of switching cars for diversion to other railroads; that the usual time necessary to "spot" such a car was fifteen minutes; that after the inspection of the contents by the agent on Wednesday, January 21, one Milwaukee freight train for Minneapolis was scheduled to depart from Kansas City at 5:30 a. m. Thursday, January 22, arriving at Minneapolis on Friday at 7:00 p. m. in time for the market on Saturday, January 24; that another Minneapolis freight was available which left Kansas City at 5:20 p. m. on Thursday, January 22, which would arrive in Minneapolis at 10:30 p. m. on Friday, January 23. Under these circumstances, for reasons unexplained, defendant did not deliver the car to the forwarding carrier at Kansas City until Friday, January 23, at 4:00 a. m., over 34 hours after receiving the order of diversion. Thus the arrival of the car in Minneapolis was too late for the market on Saturday, January 24. All these elements are to be considered on the question of negligent delay in the transportation of perishable merchandise. 13 C.J.S., Carriers, § 194b, page 396.
No arbitrary ruling is fixed by law as to what would constitute unreasonable delay in such a case. Johnson v. Missouri Pacific R. R. Co., supra; 9 Am.Jur. page 724, Section 502. In Berry v. Chicago A. R. Co., supra, a delay of two hours of a car of livestock was held not unreasonable or negligent. In Mount Arbor Nurseries v. New York, Chicago St. Louis R. R. Co., 217 Mo.App. 31, 273 S.W. 410, a carload of perishable nursery stock was delayed in transit during freezing weather. Six days was the usual time for the shipment, but seventeen days were consumed. Defendant railroad failed to explain the cause of the delay. The court held that in view of the known perishable nature of the freight under the circumstances in evidence, the the diligence on the part of the railroad was imperative; that the freezing hazard should have been foreseen and eleven days' delay was unwarranted and negligent. The court said, 217 Mo.App. at page 50, 273 S.W. at page 415: "The unwarranted and unreasonable delay at the season of the year the nursery stock was then being carried constituted evidence of negligence on defendant's part. The facts show more than delay". In Johnson v. Missouri Pacific R. Co., supra, a delay of perishable goods for seven days was held evidence of negligence where there was proof that two days was the usual time required for the shipment.
We conclude that there was some substantial evidence of negligent delay in plaintiff's shipment while it was in the charge and control of defendant Rock Island.
Defendant's next point is that there was no evidence of damages sustained due to its negligence. It calls attention to the fact that plaintiff submitted only damages caused by a decline of the market between January 24 and 26, and abandoned any claim for damages for deterioration. It asserts that the proof is speculative as to how much, if any, the Rock Island is responsible for the loss by a decline of market; that the Milwaukee took 68 hours and 5 minutes to transport the car from Kansas City to the position available to plaintiff in Minneapolis. On this basis, it argues that if the Rock Island had promptly delivered the car to the Milwaukee on January 21, the Milwaukee would have consumed 68 hours and 5 minutes to deliver the car at Minneapolis, which would be 1:45 p. m. Saturday, January 24, too late for that day's market; that Sunday, intervening, the car would then not have been available to plaintiff until Monday, January 26, on which day it did arrive and some of the tomatoes were sold. There was no evidence that because the Milwaukee freight leaving Kansas City with the car at 8:55 Friday morning January 23, consumed over 68 hours to make the trip, it would have again varied from its scheduled time and consumed 68 hours for its train leaving on the morning or evening of the 22nd. There was evidence that had such diversion been made in time for either Milwaukee train on January 22, the car would have reached Minneapolis in time for the market on Saturday, January 24. Plaintiff submitted no claim for the deterioration between the time the shipment would have arrived after prompt diversion and the actual arrival at Minneapolis.
Defendant claims the verdict was excessive and was not supported by the evidence. In view of the necessity for a retrial of this case, as hereinafter pointed out, it is not necessary for us to discuss that point.
Defendant next urges that the petition does not state a cause of action. What we have heretofore said disposes of that point in favor of the sufficiency of the petition.
Defendant complains of plaintiff's Instruction I because it submits negligent delay on defendant's part. This point has been fully considered hereinbefore and we find it has no merit. It is also contended that the instruction is erroneous for failure to hypothesize facts from which negligence may be found. The instruction submits the ownership of the bill of lading and the shipment, the date of arrival at Kansas City, the condition of the cargo, the facilities for prompt diversion, the delayed diversion, proximate cause by reason of decline in market pending the delay, and the measure of damages. We do not find the instruction erroneous for want of hypothesis of facts.
Lastly, complaint is made of plaintiff's Instruction 2. It reads as follows:
"The Court instructs the jury that delay alone is not sufficient to entitle plaintiff to recover against defendant, but the burden is upon plaintiff to prove to the reasonable satisfaction of the jury by a preponderance, that is, the greater weight of the credible evidence in the case that the delay, if any, was caused by negligence of the defendant. In that regard you are instructed that in the event you find and believe from the evidence that defendant repeatedly delayed delivering said car to the Chicago, Milwaukee, St. Paul Pacific Railroad Company, if so, unexplained by defendant, if so, you may infer that such delays were negligent, or if you find and believe from the evidence that there was an unwarranted and unreasonable delay by defendant in delivering said car containing perishable property to the Chicago, Milwaukee, St. Paul Pacific Railroad Company, if so, unexplained by defendant, if so, you may infer that the delay was negligent."
The first point made is that Instruction 2 authorized a finding of negligence when no evidence of negligence was produced. We have already found that there was some substantial evidence of negligence, considering the perishable nature of the car's contents, defendant's knowledge thereof, the season and the facilities for diversion, etc.
Next it is asserted that the instruction was erroneous in authorizing the jury to find negligence from "unwarranted and unreasonable delay", without defining "unwarranted". Defendant cannot complain if plaintiff required the jury to find defendant's delay not only unreasonable but also unwarranted.
The last point made as to Instruction 2 is that it authorized the jury, in the disjunctive, to infer negligence if it found defendant "repeatedly delayed" delivery of the car to the Milwaukee, and without explanation of such delays. In the first place we find no evidence of "repeated" delays. Evidence that only 15 minutes was all that was required to "spot" the car for diversion, is not proof of 136 separate delays or "repeated delays" as urged by defendant. The more serious objection is that the instruction tells the jury that from the "repeated delays" unexplained, it could infer negligence. Here, again, plaintiff was mistakenly applying Section 387.180 RSMo 1949, V.A.M.S., which, as we have held, has no application to the shipment in question, which was not intrastate. Mere delay of delivery of the car, unexplained, was not sufficient from which the jury could infer negligence in this case. In that respect Instruction 2 was prejudicially erroneous.
The cause is reversed and remanded for retrial.
All concur.