Gary Bros. & Gaffke Co. v. Chicago, M. & P. S. Ry. Co. , 49 Mont. 524 ( 1914 )

MR. JUSTICE SANNER

delivered the opinion of the court.

The respondent, a corporation, complained that on the 21st and 23d days of October, 1911, it delivered to the appellant, a common carrier, at Patterson, Gallatin county, Montana, two ears of potatoes in good condition, of the value of $932.42, to be safely carried to Butte and there delivered to F. C. Downing upon payment of the freight charges thereon; that the appellant “did not safely carry and deliver said potatoes, which were goods of a perishable nature, but on the contrary so negligently conducted and so misbehaved in regard to the same as such carrier that the same were not delivered in good condition to said F. C. Downing but were injured and rendered worthless and wholly lost” to the respondent, to his damage, etc. The answer admits the delivery by respondent to the appellant of the potatoes in good condition for carriage as stated, denies the neglect of duty imputed to it, and alleges that if the potatoes were injured or rendered worthless, it was caused by the negligence of respondent or its consignee Downing, in this: that Downing was notified by appellant’s agent of the arrival of the potatoes on the morning of October 26, 1911; that he thereupon came to appellant’s office and requested appellant’s agents to set the cars out upon its delivery track, which was done; that he then and there inspected the potatoes and accepted and took charge of the same; that the potatoes remained in the cars on the delivery track during the afternoon and night of October 26 without any request having been made by Downing or anyone else that appellant should take any precautions to prevent the potatoes from freezing or exercise any care or supervision over them; that on October 27 Downing informed appellant’s agent the potatoes were frozen; that if the potatoes were frozen or in any way injured by cold, it occurred after Downing had taken the custody of and responsibility for the same. The effect of the reply is to deny that Downing accepted or took charge of the potatoes or that they had been delivered to him at the time they were frozen.

The trial was to the court sitting without a jury. There was no dispute but that the potatoes arrived in Butte on the morning of October 26 in good condition; that they were frozen sometime during the night of the 26th or on the morning of the 27th, and that by such freezing they were rendered practically worthless. “The question litigated was whether, in the light of the facts, there was a delivery of the potatoes on the 26th; if so, it is contended the appellant was not liable; if not, it was liable.” The court found the issues for the respondent and judgment went accordingly. Appellant moved for a new trial, and this was by order of the court denied. The cause is before us on appeal from that judgment and from that order.

The evidence upon the question at issue is not seriously conflicting. The potatoes arrived at Butte on the morning of October 26 and were placed upon the team track on the appellant’s own motion; this is the track customarily employed for the deposit of cars the contents of which were to be unloaded by teams. The consignee, however, did not "always unload from this track, but as between him and the appellant it was the custom for the latter to place cars upon the B. A. & P. track if .the consignee so requested. Notice of the arrival of the cars was given to the consignee by telephone about noon, and in the afternoon he appeared at appellant’s office, ascertained the numbers of the cars and where they were, went to them, entered them and examined the potatoes. Finding the potatoes in good condition, he went up town, met a Mr. Babbitt, who wished to buy some potatoes, and the two returned to the cars, examined the potatoes, and Babbitt agreed to take one of the ears. These parties went back up town and the consignee» made arrangements with a teamster for unloading to begin the following day. The cars were left upon the team track and on that night were frozen.

As we understand the appellant’s contention, it is that the foregoing facts suffice to relieve it from all liability (1) under the statutes of this state, (2) at common law, and (3) under the contract between the parties.

1. The Revised Codes of this state provide that the liability of a railway carrier, as such, continues from the time it accepts the property until it is relieved (sec. 5353) in one of the following ways: (a) By delivering the property to the consignee at the place to which it is addressed, in the manner usual at that place (sec. 5309), or, if there is no usage to the contrary, delivery may be had at the station nearest the place to which the property is addressed (see. 5310); (b) if the property is not delivered to the consignee or his agent personally, notice of its arrival must be given to him, and the carrier paust, upon its responsibility as a warehouseman, keep the property until the consignee has had a reasonable time to remove it (see. 5311), or, if the consignee does not accept and remove the property after the carrier has fulfilled, or duly offered to fulfill, its obligation to deliver, the carrier may exonerate itself from further liability by placing the freight in a suitable warehouse on storage, etc. (sec. 5312). Concerning the application of these sections, it is sufficient to say that no attempt was made to follow the provisions of section 5312; that section 5310 does not define the acts which may constitute delivery in the absence of custom; that section 5311 does not apply if a personal delivery is claimed, and if a personal delivery is not claimed and section 5311 does apply, its effect is not to relieve from all liability, but to change the liability from that of carrier to that of warehouseman. We are thus left to section 5309, which likewise is not meant for cases of actual, manual delivery, because these need no aid from statute or custom, but to those eases where, by following custom, a delivery may be accomplished short of the actual, manual transfer of the goods. So considered, section 5309 is not brought to bear for two reasons, viz., the terms of the contract of carriage and the fact that while the evidence shows the placing of cars upon the team track to be a part of the usual manner of delivering freight in carload lots, at Butte, it is not established that, in the absence of contract, delivery is customarily accomplished at Butte by that act or by all the circumstances narrated above.

2. Whether or not a delivery was accomplished on October 26 sufficient to absolve the appellant at the common law is not, in our judgment, of great importance in view of the contract between the parties. It may be said in passing, however, that the rule invoked which relieves the carrier as such from [1] liability upon placing the cars where they can be conveniently unloaded by the consignee cannot aid the appellant, for it does not relieve from all liability, but, like section 3511, Revised Codes above, merely changes the liability from that of carrier to that of warehouseman. (2 Hutchinson on Carriers, sec. 711; 6 Cyc. 457, par. III; MacVeagh & Co. v. Atchison, T. & S. F. Ry. Co., 3 N. M. 205, 5 Pac. 457; Gregg v. Illinois Central Ry. Co., 147 Ill. 550, 37 Am. St. Rep. 238, 35 N. E. 343; note to East Tennessee, V. & G. Ry. Co. v. Kelly, 17 L. R. A. 691 et seq.)

3. The contract of carriage indorsed upon the bill of lading contains the following provisions: “The carrier * * * of [2] the property described shall be liable for any loss thereof or damage thereto, except as hereinafter provided. * * * For loss, damage or delay caused by fire occurring after forty-eight hours after notice of the arrival of the property at destination has been duly sent or given, the carrier’s liability shall be that of warehouseman only. * * * Property not removed by the party entitled to receive it within forty-eight hours after notice of its arrival has been duly sent or given, may be kept in car, depot or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage and to carrier’s responsibility as warehouseman only,” etc. The meaning of this language cannot be mistaken, and the distinguished counsel for appellant does not mistake it. He says: It “evidently refers to and is controlling over all shipments which arrive at the point of destination. When they so arrive notice must be given of their arrival. After such notice is given, the party notified has forty-eight hours within which to remove the same, and if he does not remove it within forty-eight hours, it may then be held by the carrier subject to its liability as warehouseman only. Until the end of the forty-eight hours, the carrier holds it subject to its liability as carrier. But it goes without saying, of course, that that refers only to .property that has not been delivered.” The implications of this admirable analysis are apparently not foreseen. They are, that' the protection afforded by section 5311, Revised Codes, under which the liability of the carrier becomes changed to that of warehouseman immediately upon giving notice, is waived; that the effect of the Massachusetts rule under which the liability of the carrier becomes changed to that of warehouseman when the cars are placed'conveniently for unloading is dispensed with; and that the only thing which will exonerate the carrier, as such, within forty-eight hours is the removal of the property. In other words the contract itself not only fixes the liability of the carrier, but defines the character of the delivery which will suffice to avoid it. Confessedly, the proof shows no such delivery on October ?S. Whatever, in the absence of the contract, might have been the effect of the circumstances disclosed by the evidence, there was no removal of the potatoes before they were frozen. The appellant having undertaken to answer for their safety under its liability as carrier until they were removed within forty-eight hours, cannot now invoke the aid of any other rule.

The judgment and order appealed from are affirmed.

Affirmed.

Mr. Chief Justice Brantly concurs. Mr. Justice Holloway, being absent, takes no part in the foregoing decision.