Denny v. Wolff

HARRIS, J. The pleadings may be summarized thus: The execution of the note is admitted. The plaintiffs aver that the note has not been paid and that they are entitled to judgment for the amount of the note. The defendant says that he delivered to the plaintiffs fruit worth $3,780, over and above the expense of packing, shipping and marketing, but that [259] because of tbe negligence of tbe plaintiffs he received only $941.46 for tbe fruit; and that therefore be is entitled to recover from tbe plaintiffs tbe sum of $2,173.08, tbe alleged balance remaining after deducting from the sum of $3,780, which is tbe alleged net value of tbe fruit, a credit of $655.46, tbe amount of tbe note, and a credit of $941.46, tbe amount of the “returns” on tbe fruit. Tbe plaintiffs concede that there was evidence sufficient to sustain a verdict finding them guilty of negligence in permitting tbe fruit to remain on tbe platform in tbe rear of tbe warehouse in Medford; but tbe plaintiffs contend that there was no evidence at all to support tbe charge that tbe fruit was frozen en route as a result of their negligence. In 1917 tbe Southern Pacific Company, tbe carrier, offered to shippers two forms of contract: Under one form tbe shipper paid tbe freight charges, and, as we understand tbe record, tbe shipper assumed tbe risk of loss by freezing; but under tbe other form, known as Option No. 2, tbe shipper paid tbe regular freight charges and an additional charge of about $27 per car in consideration of which tbe carrier undertook to protect tbe fruit from damage by freezing while in transit and agreed to assume tbe risk of damage by frost and to reimburse tbe shipper for any loss caused by freezing. All tbe fruit shipped by tbe plaintiffs was shipped under Option No. 2; and therefore tbe plaintiffs insist that they did all that tbe law required of them. Tbe defendant says that tbe plaintiffs ought to have installed false floors and lined the cars with paper, and that the failure of tbe plaintiffs so to do was negligence. Tbe only question for decision [260] is whether the failure of the plaintiffs to install false floors and line the cars with paper constituted actionable negligence. 1, 2. The law imposed upon the plaintiffs the duty of exercising reasonable care when shipping the fruit. If the plaintiffs exercised the same degree of care which an ordinarily prudent man would have employed then the plaintiffs cannot be held liable for the freezing of the fruit: Mechem on Agency (2 ed.), §§ 2523, 2535; 11 R. C. L. 765; 19 Cyc. 118. It must be remembered that the fruit was loaded into regular express cars “ * * regular refrigerator-cars. ” These cars are designed to protect the fruit from heat and from cold. For each car of fruit shipped the plaintiffs paid to the carrier $27 in order to secure the agreement of the carrier to assume the risk of loss by freezing. The shipper delivered the fruit to a responsible carrier, and under the terms of Option No. 2, the carrier agreed to protect the fruit against loss by frost: See 2 C. J. 731; Brown v. Denison, 2 Wend. (N. Y.) 593. What more could the shipper have done? The defendant says that the plaintiffs should have placed false floors in the cars and should have lined the cars with paper. The money which was paid to the carrier for its agreement to protect the fruit and assume the risk of loss was chargeable to the defendant and in the final analysis was the defendant’s money. If the plaintiffs had expended money on false floors and paper lining, that money would have been expended for the very protection which the carrier had agreed to furnish and was paid to furnish; and if the plaintiffs had expended money on false floors and paper lining after having paid the carrier for its agreement to assume the risk of loss it is quite likely that the defendant [261] would have objected to being charged for the expense of false floors and paper lining. The plaintiffs performed their full duty when they shipped under Option No. 2; and it was error to permit the jury to include in their verdict, as they did, damages for loss caused by freezing. The plaintiffs filed claims with the carrier, and the carrier acknowledged its liability by paying $9 a few days before the trial and the further sum of approximately $245 the day before the trial; and at the time of the trial the remaining claims were still in process of adjustment. 3. It is argued that Ralph Bardwell testified that even when shipping under Option No. 2, it was customary for shippers in that locality to line the cars with paper and to install false floors. Although the plaintiffs insist that the testimony of Bardwell is not fairly susceptible of the construction placed upon it by the defendant, and although there was testimony in behalf of the plaintiffs to the effect that there was no such custom or usage, it may be assumed for the purposes of this discussion that Bardwell unequivocally testified that it was customary to install false floors and to line the cars with paper; and even then it must be held that there was insufficient evidence to prove a custom or usage, for only one witness testified to the existence of the custom, while our statute requires two witnesses: Section 801, Or. L.; Prement v. Wells, 65 Or. 336, 342 (133 Pac. 647). It was prejudicial error to permit the jury to assess damages against the plaintiffs for loss caused by freezing. The judgment is reversed and the cause is remanded for a new trial. Reversed and Remanded. Burnett, O. J., and McBride and Bean, JJ., concur.