Powell v. Jerome ( 1945 )

1. The petition set out a cause of action, and the court did not err in overruling the defendants' general demurrer.

2. The verdict was authorized under the law and the evidence, and the court did not err in overruling the defendants' motion for new trial.

DECIDED DECEMBER 5, 1945. J. D. Jerome brought a suit for damages against L. R. Powell Jr., and Henry W. Anderson, as receivers of the Seaboard Air Line Railway Company, alleged to have been sustained by him on account of the loss of a carload of green corn, shipped by him over the company's railroad to Philadelphia, Pennsylvania. The petition, as amended, set forth: (3) that the plaintiff was engaged in farming near Manassas, Georgia, and was producing perishable vegetables and crops for shipment to eastern cities; that in 1943 he grew a large amount of green corn, and that the defendants knew of the business of petitioner; (4) that about noon on June 9, 1943, he was ready to ship corn to market, and learning that the market price was high at Philadelphia, he approached the agent of the defendants at Manassas, requesting that he be furnished a standard refrigerator car, and on account of the extremely hot weather he would require five tons of loose ice for topicing; that the local agent, before agreeing to furnish a car with additional ice, called his superior officer on the telephone in Savannah, explaining the plaintiff's requirements; that the local agent of the defendants assured him that the refrigerator car with extra ice would be furnished, and that the car would arrive late in the afternoon on that day, with the understanding that the plaintiff would pay for the ice; that then the plaintiff at the agent's request filed with the agent a written requisition for a refrigerator car with the extra ice; (5) that relying upon the promises of the company's agent to furnish the refrigerator car so furnished and equipped and that it would arrive that night, the plaintiff gathered, sacked, and had ready for loading 800 sacks of green corn; (6) that when the refrigerator car arrived after nightfall, it contained no loose ice, and the defendant breached its agreement to obtain and furnish the extra ice; that the plaintiff, being in the position of having his perishable corn gathered and on the ground with no ice nearer than Savannah, in order to avoid a total loss, conferred with the company's agent, who assured the plaintiff that he would ask and insist that the defendant company place the five tons of ice on the corn when the car reached Savannah; that the plaintiff then proceeded to load the car with the 800 bags of corn without the top-icing, and received the company's bill of lading therefor; (7) that the corn was in good marketable condition, and could have been so delivered in Philadelphia had it been top-iced as agreed by the defendants; (8) that the value of the corn, f. o. b. Manassas, was $1732.90, but when it reached Philadelphia, it was spoiled, soured and decayed, and practically worthless, and the plaintiff received therefor only the sum of $349, and was required to pay $361 freight charges; that the loss was caused solely by the defendant's breach of contract; that $1732.90 was the net value of the corn at the place of destination, after deducting from the selling price the usual freight charges and other expenses; (9) that the breach of the agreement by the defendants was the sole cause of the plaintiff's loss, and that he was free from fault; that the defendants knew that the shipment of corn could not be safely transported to its destination without top-icing, although the plaintiff was able and willing to pay for the extra ice, and the defendants contracted to furnish it, but carelessly, negligently, and wilfully refused to carry out their agreement to safely deliver the shipment at Philadelphia, and did not furnish to the plaintiff a car with sufficient refrigeration to prevent his corn from spoiling and to insure its reaching the destination in good condition; (10) that the plaintiff filed a demand for payment for his loss, and that the same was refused; (11) that the plaintiff relied on the contract of the defendants to carry his corn safely to Philadelphia, including the necessary icing, and the breach of it by the defendants was the cause of the plaintiff's loss; (12) that the defendants are indebted to him in the sum of $1732.90, plus interest at 7 percent from July 1, 1943, for which he prayed judgment.

The defendants filed a general demurrer to the petition, on the ground that its allegations were not sufficient in law to entitle the plaintiff to maintain his action. In addition thereto, the defendants filed their answer, denying all the material allegations of the petition, and set up the following: (a) that the transportation of the shipment from Manassas to Philadelphia was interstate transportation, and that the rights and obligations of the parties thereto are controlled by the provisions of the interstate commerce commission act and by the rules and regulations of the Interstate Commerce Commission; (b) that sec. 6, par. 7 of the interstate commerce act (Title 49, U.S.C.A. ) prohibits carriers from engaging in the transportation of property unless the rates are published and filed with the commission, and further that carriers shall not extend to any shipper or person privileges or facilities in the transportation of property except as are specified in such tariffs; (c) that the tariff in effect on the date of the shipment in question was perishable protective except on the date of the Quinn's I. C. C., No. 19, rule 130, which provides that the condition of perishable goods is not guaranteed by carriers; and rule 135 provides that property accepted for shipment under the terms and conditions of this tariff is received and transported subject to such terms and conditions only; (d) that rule 200 of the tariff sets forth the general application and refers to various applicable rules; that the tariff makes no requirement for the service of top-icing, nor the furnishing of ice for that purpose, and that no agreement by the carrier's agent with the shipper can make any deviation from the tariff provisions and purpose, and that no the carrier in this respect; that the car in question was a standard refrigerator car; that it moved on schedule time to Philadelphia and was iced and iced and reiced strictly in accordance with the terms of the tariff, and that no legal liability rested upon the defendants.

The court overruled the general demurrer and the defendants excepted pendente lite.

The case proceeded to trial. The plaintiff introduced oral testimony to the effect that he had been in the business of shipping farm products to markets for thirty years, and that in the summer of 1943 he had about seven acres of Golden Cross Bantam corn for shipment. Relative to the top-icing, the plaintiff introduced oral testimony as follows: "The custom in the past in shipping corn for 300 miles or more — you order a standard refrigerator car, which means, ice in the bunkers, plus plenty of top-ice inside the car. Ordinarily we attend to the top-icing ourselves, and at this time we tried through Claxton, . . Reidsville, and Savannah to get five tons of loose ice for the top-icing . . there was an ice famine throughout the country at that time; and I went to Mr. Beecher, agent of the Seaboard, and told him the situation, that I wanted a standard refrigerator car, plus five tons of ice in the bottom of the car for top-icing; he said he did not know whether he could get a car, but he would try, and he telephoned someone in Savannah to equip a car with five tons of ice in the bottom for top-icing, whoever he was talking to; he made it plain absolutely why he wanted this car — we to pay for the icing. After that conversation, he told us that it was o. k. — ice would be in the car, to go ahead and break the corn. . . I then went in the field breaking corn. . . I was there when the train brought the car that night. . . There was not a bit of loose ice in the car. I called it to Mr. Beecher's attention; he did not know why in the world they did not send the ice like they said they would do. . . I could have waited several days before breaking [the corn]. The weather was awfully hot, and we were all upset and did not know what to do with the corn, except to load it and take a chance on top-icing in Savannah; I talked with Mr. Beecher about the predicament, and he said he would talk to Savannah; he was positive they would top-ice it in Savannah; we all thought they understood it; so we loaded the corn in that car. . . After I got the way-bill, Mr. Camak [of the Seaboard Air Line Railway Company] came around next day; he knew that the corn had gone off without top-icing; he said he had called Savannah two or three times that day, trying to get top-icing; he indicated that the car was still in Savannah; he said he had called them. . . I do not know whether or not Mr. Beecher had any authority to make a contract for top-icing, but he called up Savannah; afterwards he said they would furnish five tons of ice in the car for top-icing; and I told him I did not want the car without that ice. . . There was ice in the bunkers of this car where it came from. I accepted the bill of lading not mentioning the ice, upon their promise to top-ice in Savannah. This was on the agreement with Mr. Beecher of the Seaboard Air Line. . . As to whether I understood Mr. Beecher was authorized to do anything except to make shipments according to the bill of lading furnished me by the company, I don't know about that; I just asked him why they did not furnish the car with loose ice; he said he did not know; he goes to the telephone and calls up, and that was the answer we got from Mr. Beecher, that the car would have the five tons put in it in Savannah; that was after we accepted the bill of lading."

The oral testimony of the commission merchant in Philadelphia to whom the corn was consigned, and others familiar with the market price of green corn at the time, was that the net value of the corn there at the time it was received by the consignee was $1732.90, after deducting commissions, inspection charges, drayage, and freight; while the "entire car" of corn in its damaged condition "sold for $349," which "lacked $81.53" of bringing enough to pay the freight charges of "$361.21." Documentary evidence introduced by the plaintiff consisted of: a copy of the requisition for the car requesting five tons of top-icing; the bill of lading; copy of the waybill, which stated: "This car to be top-iced with not less than five tons of ice at Savannah, Ga. Car to move under standard refrigeration to destination;" and a copy of the claim filed with the defendants and a receipt for the claim.

The defendants introduced no evidence. The jury returned a verdict for $1732.90, the amount sued for, with $235.90 interest. The defendants filed a motion for new trial, which the court overruled, and the defendants excepted to the overruling of the motion and also to the overruling of the general demurrer. 1. The petition set out a cause of action, and the court did not err in overruling the general demurrer to the petition.

2. The Code, § 18-314, provides: "It shall be the duty of the railroad companies of this State to furnish to any grower of peaches . . or other perishable products, suitable icing and refrigerator cars, or other suitable car for the transportation of such products." It is contended by counsel for the plaintiffs in error that, regardless of whether the local agent made an agreement with the plaintiff to furnish top-icing, it would not be binding on the company for the reason that it appears from the evidence that it is not customary for carriers to furnish top-icing service; and that, if there was an agreement for the carrier to furnish top-icing, it would be contrary to custom and to the rules and regulations of the Interstate Commerce Commission. In this connection, it was said in Atchison, T. S. F. R. Co. v. United States, 232 U.S. 199, 215 (34 Sup. Ct. 291,58 L. ed. 569): "When, however, ice is actually needed and is actually used, the question arises as to whether icing is a part of preparation which can be done by the shipper, or a part of refrigeration (transportation) which, by statute, the carrier has the exclusive right to furnish. To this question no answer can be given that will apply in all cases. For in the shipment of fruit, as in that of other articles, it is impossible to lay down a rule which definitely fixes what loading includes and by whom it must be done. Nor is there any consistent practice on this subject, since from reported cases it appears that the claims of the parties are based rather on interest than on some definite principle."

In Wilson v. Atlanta Charlotte Ry. Co., 82 Ga. 386 (9 S.E. 1076). Chief Justice Bleckley said: "The great and controlling question in the case was, as to whether the wood was delivered to the company and accepted by it for shipment. The court charged the jury, in substance, that delivery is complete when, actually or in legal effect, the possession is surrendered to the carrier, and the owner abandons all control over the goods until the carriage is complete, and that not until this has been done does the responsibility of the carrier commence, either for loss or detention." In that case the court ruled that the instructions of the lower court were correct. The court further said: "We think it clearly appears that, under the system which both parties had in contemplation, it was expected that, before delivery was consummated, the owner would either load the cars himself, or have it done by the company at his expense after special request. Delivery on board the cars, according to that system, would terminate the plaintiff's possession and be the inception of possession by the carrier." See cases and principles of law therein cited.

Michie on Carriers (Vol. 1. 288. § 402), lays down this principle of law: "The liability of a railroad company as a common carrier, for goods destroyed while in its possession depends on whether or not it has accepted them for transportation, and not whether all has been done that ought to be done to precede such acceptance, and if it takes control of goods and puts its agents to preparing them for shipment, it has accepted them." See also Central ofGeorgia Ry. Co. v. Griner, 33 Ga. App. 705 (7) (127 S.E. 878).

In the present case, the agent of the company accepted the shipment of corn and agreed to depart from the custom on the part of the shipper to furnish top-icing service. The case ofSouthern Ry. Co. v. Williams, 139 Ga. 357 (5) (77 S.E. 153), is in point and controlling here. It was there ruled: "Although the plaintiff observed the condition of the car at the time of the loading of the fruit therein, with reference to the insufficient refrigeration, still if he called the attention of the agent of the company at the shipping point to the condition of the car, and the agent of the company directed him to go ahead and load the fruit, assuring him that the railway company would furnish the ice, and the plaintiff, relying on that promise, loaded the car, and the company failed to furnish the ice and on that account the fruit was damaged, the company would be liable." "Although the duty [to exercise care and diligence in providing necessary refrigeration] has been said to be a contractual one, it is in no way dependent on an express contract imposing it, and the carrier's liability is not affected by the fact that the bill of lading is silent on the subject. In accordance with these rules, unless such duty is voluntarily assumed by the shipper, if the class of goods shipped requires refrigeration for their preservation, it is the duty of the carrier to provide a supply of ice sufficient for the purpose, and it will be liable for damages resulting from non-performance. . . Such ice must be furnished not only at the point of shipment, but at such places along its line as will reasonably insure a safe transit to the point of destination. . . Carrier accepting supply of ice transportation under contract to re-ice car to full capacity at certain point assumed duty of providing a sufficient supply of ice at such point and was liable for damages for failure to re-ice car." 13 C. J. S., 106, § 61. "The law implies an undertaking on the part of the carrier to exercise the diligence that the character of the goods requires. Nor is the carrier's liability for injuries caused by insufficient icing affected by the fact that the shipper discovered that the cars were insufficiently iced before their departure, if they had no opportunity to remedy the situation, and they believed that the goods would reach their destination without injury, or if the shipper called the attention of the carrier's agent to the fact that the cars were insufficiently iced and was assured that sufficient ice would be furnished." 10 C. J., 92, § 101.

The requisition for the car, which was in writing, called for five tons of top-icing, and the copy of the waybill stated: "This car to be top-iced with not less than five tons of ice at Savannah, Ga. Car to move under standard refrigeration to destination."

In the present case, there was an affirmative act by the authorized agent of the company directing the loading of the car by the shipper which amounted to an acceptance of the car by the defendant company. See Seaboard Air Line R. Co. v. Friedman,128 Ga. 316, 318 (57 S.E. 778). The oral agreement of the company's local agent to have the car re-iced at Savannah was binding on the company. The proposition seems to be thoroughly established that an oral agreement by a duly authorized agent of the carrier to furnish cars constitutes a contract which is valid and binding on both parties. Chattanooga Southern R. Co. v.Thompson, 133 Ga. 127, 128 (65 S.E. 285). The plaintiff had the right to rely upon the statement of the company's agent relative to the company's reicing the car. See Chicago, R. I. P. R. Co. v. Stallings, 132 Ark. 446 (201 S.W. 294); St. Louis S. F. R. Co. v. Vaughan, 88 Ark. 138 (113 S.W. 1035). In the present case, the question of rates and tariffs was not involved, but the action was based on the ground that the company through its agent contracted and agreed to furnish the ice for the shipment of corn, at the shipper's expense, in order to protect the corn until it reached its destination.

The verdict was authorized by the evidence, and the court did not err in overruling the defendants' motion for a new trial.

Judgment affirmed. Felton and Parker, JJ., concur.