Appeal from the Circuit Court of Cook County; the Hon. JOHN A.
OUSKA, Judge, presiding. Judgment adverse to defendant reversed.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT. This action was brought for alleged damage to a carload of produce during shipment from McClintock, Colorado, to Birmingham, Alabama. The case was tried by a magistrate without a jury. The magistrate found the issues for the plaintiff and entered judgment in favor of the plaintiff in the sum of $1,048.53.
The facts as to the movement of the shipment are not in dispute. On July 30, 1960, the Southern San Luis Valley Railroad Company received a carload of lettuce and spinach from Mizokami Bros. Produce at McClintock, Colorado, consigned to J. Weingarten, Inc., at Houston, Texas. The routing as shown in the bill of lading was "SSLV-DRGW-C&S-FWD." On August 4, 1960, Mizokami Bros. Produce sent a diversion order to the Fort Worth & Denver Railroad Company at Houston, Texas, which read in part
ART 32523 lettuce out McClintock, Colo., July 30th, now consigned J. Weingarten, Inc., Houston, Texas routed SSLV-DRGW-C Std. Refrigeration 3% salt based on amount ice supplied.
Divert to: DEKLE BROKERAGE CO., Birmingham, Ala., routed: SSLV-DRGW-C&S-FWD-Houston-MOPAC-New Orleans-SOU; Change service to Standard Refrigeration, 5% salt at each regular icing station based on amount ice supplied, protect thru rate.
MIZOKAMI BROS /a/ Dick Winn
Accordingly, the shipment moved from Houston to New Orleans by Missouri Pacific; from there it was moved by the New Orleans and Northeastern Railroad Company to Meridian, Mississippi, then by the Alabama Great Southern Railroad Company into Birmingham, Alabama, its final designation.
The New Orleans and Northeastern Railroad Company is a Louisiana corporation; the Alabama Great Southern Railroad Company is an Alabama corporation; the Southern Railway Company is a Virginia corporation; all of them are members of the Southern Railway System. Southern Railway System is not a legal entity. The Southern Railway Company does not have any line of railroad between New Orleans, Louisiana and Birmingham, Alabama. It does, however, have extensive lines of railroad in Birmingham, and the warehouse of Dekle Brokerage Company (the consignee in the diversion order) was served by spur tracks jointly by the Southern Railway Company and the Alabama Great Southern Railroad Company. It appears from the record that the Southern Railway Company did not handle the shipment herein involved. It is uncontradicted that the defendant did not receive any of the freight charges, nor did it pay any of the costs of handling the shipment. The freight bill was issued on a printed form of the Alabama Great Southern Railroad Company; superimposed on the top of the printed form was the stamp of the Southern Railway Company. The freight bill is stamped paid, and this stamp bears the name, Southern Railway Company; underneath the name are the initials A.G.R.R. The shipper, Mizokami Bros. Produce, assigned its claim to plaintiff, R.D. Meyer, for a recited consideration of One Dollar.
The lettuce and spinach were in good condition when received by the initial carrier, SSLV Railroad Company; when delivered at destination they were in a decayed condition, with approximately 60 percent bacterial soft rot.
[1-3] On January 6, 1965, the trial court entered judgment on its findings in favor of the plaintiff, R.D. Meyer, and against the defendant, Southern Railway Company, in the sum of $1,048.53. From that judgment the defendant took an appeal. At the time the judgment was entered the court made the following oral statement in open court:
"I was very much concerned with the Carmack Amendment, . . . and the common law liability, if there is no conflict, could impute liability on the defendant railroad company, here, who, it is agreed upon, was not the delivering carrier rather, the delivering carrier was the Alabama, Great Southern Railroad Company."
". . . it didn't take the Court long to determine that the defendant, Southern Railway Company, was probably responsible as a corporation involved, rather than the Southern Railway System, in my opinion, and that is one of the findings I make.
"One [issue of fact] that concerned me most was whether or not in 63 Mont. 1588 whether we could determine that the Southern Railway Company is responsible, even though we all agree that the Alabama, Great Southern Railway Company delivered car . . .
"The Court feels that in that capacity, they acted as agents of the Southern Railway Company, and therefore the Southern Railway Company is liable, if the specific negligent acts were created, in fact, by the Alabama, Great Southern Railway Company, so that there ...