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Mirski v. Chesapeake & O. Ry. Co.

OCTOBER 7, 1963.

TED MIRSKI, APPELLEE AND CROSS-APPELLANT,

v.

THE CHESAPEAKE AND OHIO RAILWAY COMPANY, A CORPORATION, APPELLANT AND CROSS-APPELLEE.



Appeal from the Municipal Court of Chicago; the Hon. LOUIS W. KIZAS, Judge, presiding. Judgment affirmed and cross-appeal denied.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Rehearing denied October 31, 1963.

Plaintiff sues for damages allegedly sustained by reason of the deterioration of a carload of cherries enroute from Yakima, Washington, to Cincinnnati, Ohio. after a non-jury trial, the court entered judgment against defendant for $3250. Defendant appeals, and plaintiff cross-appeals on the sufficiency of damages awarded.

In July, 1957, plaintiff and George Joseph, who later assigned his interest to plaintiff, purchased a carload of cherries from Stubbs-Lamb Fruit Co. of Yakima, Washington. The initial carrier, Union Pacific Railroad, delivered refrigerator car No. PFE-10128, built in 1957, to the shipper's warehouse early on the morning of July 5, 1957. The car was loaded and released that day to Union Pacific for shipment. The car arrived in Chicago on schedule on Thursday, July 11, 1957. Plaintiff then signed a diversion order, consigning the car to his agent in Cincinnati, Ohio. Defendant was the carrier of the car from Chicago to Cincinnati, where it arrived on schedule at 9:40 p.m. on Friday, July 12, 1957. It was placed on a private track at the United Fruit Auction in Cincinnati by the Southern Railway Company at 9:30 a.m. on Saturday, July 13, 1957. On Monday, July 15, 1957, at 4:20 a.m., the car was opened. This was the first market day at the auction subsequent to the car's arrival in Cincinnati, and the contents were sold at auction on July 15 and July 17, 1957. Plaintiff contends that the contents of the car — 1715 boxes of Bing and Lambert cherries — arrived at destination in a deteriorated and decayed condition.

Plaintiff sues defendant as "delivering carrier" of an interstate shipment of property, under the terms of the Carmack Amendment to the Interstate Commerce Act, 24 Stat 379, as amended, 49 USCA § 1 et seq. In pertinent part, the Carmack Amendment provides that:

". . . any common carrier, railroad, or transportation company delivering [property received for transportation from a point in one State to a point in another State] shall be liable to the lawful holder of [the bill of lading issued by the initial carrier] . . . for the full actual loss, damage, or injury to such property caused by it or by any such 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 provided further, That for the purposes of this paragraph . . . the delivering carrier shall be construed to be the carrier performing the line-haul service nearest to the point of destination and not a carrier performing merely a switching service at the point of destination: And provided further, That the liability imposed by this paragraph shall also apply in the case of property reconsigned or diverted in accordance with the applicable tariffs filed as in this chapter provided." (34 Stat 593, as amended 44 Stat 835 and 44 Stat 1448, as amended, 49 USCA § 20(11).)

[1-4] By virtue of the Carmack Amendment, the liability of an initial or delivering carrier for damage to an interstate shipment of property is governed exclusively by Federal law (Adams Express Co. v. Croninger, 226 U.S. 491, 505 (1913); Boston & Maine Rd. v. Hooker, 233 U.S. 97, 110 (1914)), and decisions of the Federal courts are controlling. (Gamble-Robinson Commission Co. v. Union Pac. R. Co., 262 Ill. 400, 104 N.E. 666 (1914).) "The purpose of the Carmack Amendment was to relieve shippers of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods" (Reider v. Thompson, 339 U.S. 113, 119 (1950)), and this purpose is achieved by making the initial and delivering carriers liable for any loss or damage caused by a connecting carrier in the chain of transportation. In other respects, however, liability remains unchanged, and the Amendment is said to codify the common law rule "making a carrier liable, without proof of negligence, for all damage to the goods transported by it, unless it affirmatively shows that the damage was occasioned by the shipper, acts of God, the public enemy, public authority, or the inherent vice or nature of the commodity." Secretary of Agriculture v. United States, 350 U.S. 162, 165 (1956); Chesapeake & O. Ry. Co. v. Thompson Mfg. Co., 270 U.S. 416, 421 (1926).

[5-7] In order to make a prima facie case, all that a claimant need do is show delivery of the shipment to the carrier in good condition and delivery by the carrier to the consignee in bad condition (Thompson v. James G. McCarrick Co., 205 F.2d 897, 900 (5th Cir 1953); Armour Research Foundation v. Chicago, R.I. & P.R. Co., 297 F.2d 176 (7th Cir 1961), 311 F.2d 493 (7th Cir 1963); Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 313 F.2d 864 (7th Cir 1963)). Such a showing having been made, the carrier is liable as an insurer, without proof of negligence, unless the carrier prove one of the exceptions to absolute liability listed above, such as damage due to acts of God, the nature of the goods, etc. (United States v. Savage Truck Line, Inc., 209 F.2d 442 (4th Cir 1953), cert den 347 U.S. 952 (1954); United States Exp. Co. v. Hutchins, 67 Ill. 348 (1873); Secretary of Agriculture v. United States, 350 U.S. 162 (1956).) The liability imposed does not rest upon negligence, and the prima facie case thus made is not based upon a presumption, "since it cannot be rebutted; . . . [it is a] rule of substantive law that a carrier is liable for a failure to transport safely goods entrusted to its care, unless the loss or damage was due to one of the specified causes." Chesapeake & O. Ry. Co. v. Thompson Mfg. Co., 270 U.S. 416, 422 (1926).

However, this rule is not applied with full rigor when the commodity shipped is perishable, and when the carrier's defense is that the loss occurred due to the inherent nature of the goods. Given the natural propensity of perishable goods to deteriorate with the passage of time, most courts have recognized that a quantum of evidence different from that requisite in a case involving inanimate, non-perishable goods is appropriate when the commodity shipped is perishable. As stated in Southern Pac. Co. v. Itule, 51 Ariz. 25, 74 P.2d 38, 41-42 (1937):

". . . in cases of the shipment of perishable fruits and vegetables, when the carrier shows affirmatively that it handled them in the method requested by the shipper, and that it exercised reasonable care to prevent any damage from any cause not necessarily involved in the method of transportation so chosen, [we think] that it has satisfied the requirements of the law in regard to the quantum of proof required to establish a defense to the action, [without the necessity of proving the specific reason for the damage.]"

This qualification of the strict common law rule — which imposes absolute liability absent a carrier's specific proof of damage due to one of the excepted causes — has been followed in most of the recent cases, and has been applied in Illinois. Palmer v. Gillarde, 312 Ill. App. 230, 241, 38 N.E.2d 352 (1941); 9 Am Jur Carriers § 844 (1963 Supp, p 132); Annotation, 115 ALR 1274 (1938).

Defendant contends that plaintiff failed to prove the first requisite of his prima facie case — that the cherries were delivered to the initial carrier in good condition. In the case of a shipment of perishable produce, defendant argues that proof of good condition requires proof that the shipment was delivered "in a condition suitable to withstand the contemplated transportation." Principal reliance in support of this contention is placed on the case of Reuther's Seafood Co. v. Railway Exp. Agency, 71 So.2d 419 (La Ct App 1954). Defendant's view would require plaintiff to prove the date (or dates) on which the cherries were picked plus the time they might reasonably be expected to keep, given their condition upon receipt by the initial carrier, the length of time the transportation would consume, and the type of protective service requested by the shipper. Absent proof as to when the cherries were picked, defendant argues that plaintiff has failed to make out a prima facie case.

We agree with plaintiff's contention that proof of delivery in good condition to the initial carrier is made by showing the grade and quality of the perishable fruit at the time of receipt by the carrier. Defendant's version would compel a claimant to disprove, ab initio, what is in reality a carrier's affirmative defense — that damage to a perishable shipment occurred solely as a consequence of the perishable nature of the commodity. The Reuther's Seafood case cited by defendant does not compel a different conclusion. The case involved a claim for delivery to the consignee of frozen crabmeat which was "in a bad, strong-smelling, slimy and nonedible condition." The court stated that counsel on both sides were agreed that plaintiff was required to prove delivery of the shipment "to the carrier in condition suitable to withstand the contemplated transportation." (71 So.2d at 420.) Counsel being agreed, the court proceeded to apply the rule suggested. There was testimony by Reuther's president that a trade custom precluded shipment of crabmeat more than three days old, but there was no evidence adduced by Reuther to prove that the shipment in question conformed to the trade usage. The court, therefore, held that proof of good condition at delivery to the carrier had not been established. The only case cited by the Louisiana court in support of its rule as to good condition was Arwady v. Texas & N.O.R. Co., 18 So.2d 339 (La Ct App 1944), which held only that reliance upon a bill of lading acknowledging receipt by the carrier of packed crates "in apparent good order," with no knowledge of the contents, was insufficient to prove delivery to the carrier in good condition.

We conclude that the Reuther's Seafood case is insufficient authority upon which to adopt a rule at variance with the general view, and we hold that plaintiff was not required to show when the cherries in the instant ...


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