R. E. Funsten Dried Fruit & Nut Co. v. Toledo, St. Louis & Western Railroad

NORTONI, J. This is a suit for damages accrued to plaintiff on account of the negligence of defendant and its associates, who are engaged in the prosecution of the calling of a common carrier under the name of the Traders’ Dispatch. Plaintiff recovered and defendant prosecutes the appeal. It appears the Lehigh Valley Railroad Company, the Chicago & Alton Railroad Company, the New York, Chicago & St. Louis Railway Company and defendant, Toledo, St. Louis & Western Railroad Company and the Terminal Railroad Ass’n of St. Louis are associated together as a common carrier in the name of the Traders’ Dispatch, which is an unincorporated association. These several roads contract with shippers, .in the name of the Traders’ Dispatch, and transport goods, from New York to St. Louis by means of through, fast freight shipment. The shipment involved here is a carload of edible nuts, which by its written bill of lading the Traders ’ Dispatch un — 433 — dertook to transport from New York to St. Lonis and deliver to plaintiff, a dealer there. In respect of the instant shipment, the initial line of the association, known as the Traders’ Dispatch, is the Lehigh Valley Railroad Company, and the final, or last, carrier, which delivered the goods in St. Louis, is the Terminal' Railroad Ass’n, operating between East St. Louis, Illinois, and St. Louis, Missouri, while the present defendant, Toledo, St. Louis & Western Railroad Company, is but an intermediate carrier, connecting with the Terminal Railroad Ass’n at East St. Louis, Illinois. The suit proceeds against the Toledo, St. Louis & Western Railroad Company alone, as a member of the association, Traders ’ Dispatch, and because of this it is argued the judgment should be reversed, for the reason it does not appear defendant was guilty of any negligence with respect to the shipment. It is said that, though some of the connecting carriers constituting the association, known as the Traders’ Dispatch, were negligent and thus occasioned plaintiff’s loss, defendant may not be charged therewith, for unless the evidence shows to the contrary, the presumption of law is to the effect that the goods were delivered in due time and good order to the final carrier, the Terminal Railroad Ass’n. This argument is of no avail as it misconceives the theory of the case entirely, for the suit does not proceed against defendant as a connecting carrier in the sense of that term, but, instead, on the theory that it is liable as a member of the association known as the Traders’ Dispatch. There can be no doubt that where several carriers associate themselves together as partners and prosecute the calling of common carrier for hire, accepting one 'sum as the freight charge from the shipper, and participate together in the profits and losses of the undertaking as an ordinary partnership between indi — 434 — victuals does, the several roads are jointly and severally liable to the shipper for the torts of the partnership in respect of that business; that is, for the negligent breach of the carrier’s duty, and this is true whether they operate under a trade name as a partnership or not, provided the essential elements constituting the partnership are present. [See Crockett v. St. Louis & H. R. Co., 147 Mo. App. 347, 126 S. W. 243.] It is true, too, that, where two or more railroad companies form an association, as in this case, for the transportation of property, under a distinct trade or partnership name, and in the name of such association contract with a shipper to carry his goods from the point of reception to destination for one sum and divide the freight charge by an arrangement between ' themselves, they are treated as partners, though it does not appear affirmatively they divide both the profits and losses of the business, for in such case the contract is a through one with a distinct entity, the association, representing all of the roads associated through the implied agency of each. Such association of the several roads form that which, to the shipper, is a continuous line, dealing with him as an entity, through one contract, for one sum, concerning the transportation of his goods over all of the roads to the point of destination as a through shipment. In such circumstances, the several roads so associated together and dealing with the shipper in one name are both jointly and severally liable to him for a breach of the obligation .which the law annexes to the calling of a common carrier as if they were partners both in law and fact. [See Wyman v. Chicago & A. R. Co., 4 Mo. App. 35; Rice v. Indianapolis & St. L. R. Co., 3 Mo. App. 27; Block v. Fitchburg R. R. Co., 139 Mass. 308; see also Shewalter v. Mo. Pac. R. Co., 84 Mo. App. 589; White Live Stock Com. Co. v. Chicago, M. etc. R. Co., 87 Mo. App. 330; Crockett v. St. Louis & H. R. Co., 147 Mo. App. 347, 126 S. W. 243.] — 435 — The evidence is conclusive here. Indeed, it is -conceded that the. several railroads above mentioned are associated together and engaged in the transportation of through freight from New York to St. Louis under the name of the Traders’ Dispatch. In this name, the Trader's’ Dispatch, the contract of shipment was made for the transportation of a carload of edible nuts to plaintiff. The bill of lading in evidence reveals the fact beyond question, and it is not denied. As a member of the Traders’ Dispatch, defendant is severally liable to respond to plaintiff for the negligent breach of duty of any one. of the carriers operating under that name with respect to the shipment, if it entailed loss upon plaintiff, and this is true though it be a mere intermediate carrier and the proof fails to show that it was personally culpable. By entering into the association and participating as a member thereof, defendant assumed the obligation to answer for each and all of its associates, and the presumption cast by the law against the final carrier, which, in some cases, operates to exculpate all prior carriers when nothing more appears than that the goods were damaged in transit, through the negligence of some of them, does not obtain. - But it is argued, though such be true, the court should have directed a verdict for defendant because the record is devoid of evidence of negligence, not only on the part of defendant, but of all of its associates as well. The theory of the ease is, that the carload of shelled nuts was injured because of unreasonable delays in transit through'being exposed to excessive heat, considering the character of the goods. In one clause of the bill of lading issued by the Traders’ Dispatch, it is stipulated that it and all of the carriers, constituting the association, shall be exempted for loss or damage occasioned through change of weather or heat. Of course, this stipulation is without force if the damage resulted from the negli — 436 — gence of the carrier or any of the constituent lines, for a common carrier may not exculpate itself from the obligation to respond for its own negligence, though the contract expressly so provides. In this view, the petition declares upon the negligence of the carrier, and no one can doubt that the onus is on plaintiff to prove the charge as laid, for negligence is a positive wrong and will not be presumed, though it may be inferred from collateral facts and circumstances. [Witting v. St. L. & S. F. Co., 101 Mo. 631, 640, 14 S. W. 743.] The shipment consisted of shelled English walnuts, grown in Prance and imported to New York, from whence they were consigned to plaintiff. The nuts had been in cold storage in New York for about three months before being loaded on the car of the Traders’ Dispatch. The evidence is abundant that the nuts were sound and in good order when placed in the car in New York, but upon arriving at St. Louis they wete found to be wormy and most of them contained moths and fine web. To diminish the loss as much as possible, plaintiff assorted and “picked over” the nuts and a considerable percentage thereof was thrown away as spoiled, while others were placed in cold storage and marketed as merchantable. The evidence is, and, indeed, it is conceded as a fact, that the usual time for the transportation and delivery of freight between New York and St. Louis by the Traders’ Dispatch is from three to five days and the particular shipment involved here was fourteen days in transit. The nuts 'were in boxes and stored in a closed box car which seems to have been delayed, from some causes not shown, at different points along the route. The car containing the nuts left New York on October 1st and was delivered in St. Louis on Octo-, her 14th. It is shown that the weather was warm, for the thermometer at different points along the route ranged from sixty-two to seventy-five degrees at the — 437 — United States weather stations. It is shown in evidence that worms, moths and webs in the shelled nnts criginate from a germ or egg deposited in the bloom before the nnts are formed and that this egg or' germ of animal life lays dormant throughout and comes to naught unless an exposure to excessive heat is had. If the nuts are kept in cold storage, as is the practice by dealers, the worms and moths never appear, but if exposed for some time to a degree of heat above seventy, animal life is generated therein. The president of plaintiff company testified that if the nuts were .subjected to a degree of temperature over seventy-five, the eggs or germ of animal life deposited therein would ultimately hatch or give forth the worm. The same witness said at seventy degrees of heat it would take several months for the eggs to hatch and at eighty degrees, from three to six weeks; at seventy-five degrees, it would require about thirty days to develop animal life from the germ. Because of this, it is argued the damage to the nuts obviously resulted from an infirmity inherent in the goods themselves, for which the carrier is not liable to respond. No one can doubt that the carrier is not liable for such damages as may result solely from an inherent infirmity in the ■goods in his care no more than is he liable for loss entailed solely by the act of God,, the public enemy or the carelessness of the shipper. [See Hutchinson on Carriers (2 Ed.), sec. 216a; Libby v. St. L. I. M., etc. R. Co., 137 Mo. App. 276, 117 S. W. 659.] But though such be true, it is true as well that the carrier is liable to respond for the results of his own negligence, and if it appears that his negligent conduct conduced to set the inherent infirmity in the goods in motion, to the damage of the owner, it will suffice; in other words, the exemption on account of the infirmity of the goods obtains only where the loss is solely attributable to such infirmity, for if the carrier’s negligence commingles with the infirmity and — 438 — contributes in part to the damage, liability is entailed therefor against the carrier for its tortious conduct. [See Gratiot St. Warehouse Co. v. M. K. & T. R. Co., 124 Mo. App. 541, 102 S. W. 11.] There is evidence in the record suggesting that though the germ of animal life slumbered in the nuts, it would not have resulted in damage to plaintiff but for the fault of defendant in unduly withholding them from cold storage in a closed car for- a considerable number of days during the heated season. This being true, the question as to whether or not the loss occurred solely from the inherent infirmity in the goods or was induced by defendant’s carelessness as a contributing cause was one for the jury. It is earnestly argued that, though an unusual delay of eight or nine days occurred in this shipment, the record is devoid of evidence tending to prove negligence on the part of the carrier, for the reason the particular cause of such delays is not pointed out in the proof. An officer of the Traders’ Dispatch testified for plaintiff that thé delay occurred and that, though he had investigated the cause thereof, he did not remember what it was. However, it is shown by the overwhelming evidence that, though the freight was perishable and so known to be by the Traders'’ Dispatch, if not by this defendant, the car was permitted to stand over twenty-four hours at Sayre, Pennsylvania, and forty hours in Buffalo, New York, while the regular time from New York to St. Louis was from seventy-two to one hundred and twenty hours and other trains containing freight, in charge of the Traders’ Dispatch, were running out of New York to St. Louis daily, passing this particular car on the line. The shipment consumed four days from Cleveland, Ohio, to East St. Louis and was delayed by the Terminal Railroad Assn., a member of the Traders’ Dispatch, at East St. Louis, three days, within four or five miles of its final destination. While — 439 — it is true that mere delay standing alone is not evidence-of negligence, such, unusual and extraordinary delays at different points along the route, when it appears, other shipments in possession of the same carrier are passing along, are circumstances sufficient to afford a strong inference that defendant neglected its obligation in respect of exercising diligence, to the end of transporting the freight within a reasonable time;, for when the relation and situation of the carrier and shipper are considered, but slight evidence in respect of such matters will suffice, as the parties are in no. sense on equal footing. It would be difficult, indeed, for the shipper to point out the precise cause of delay and that it was a negligent one, and the law reckons, with this by casting the burden of proof on the carrier-who is possessed of all the facts which may explain its otherwise seeming default when the shipper has. shown collateral facts and circumstances sufficient to. suggest a reasonable inference of neglect on the part of the carrier. There is an abundance here to support the charge of negligence touching the carrier’s obligation to transport the goods, within a reasonable time,, as will appear by reference to the following authorities which are apropos to the question. [Gilbert v. Chicago, R. I., etc. R. Co., 132 Mo. App. 697, 112 S. W. 1002; Libby v. St. L. I. M., etc. Ry. Co., 137 Mo. App. 276, 117 S. W. 659; Bushnell v. Wabash R. Co., 118 Mo. App. 618, 94 S. W. 1001; Anderson v. Atchison, T. & S. F. R. Co., 93 Mo. App. 677, 67 S. W. 707; Hamilton v. Wabash R. Co., 80 Mo. App. 597, 599, 600.]: But the mere fact that negligence is shown with respect to the obligation to transport within a reasonable time will not of itself authorize a recovery for plaintiff unless it appears, too, that such negligence was tile-proximate, or operated as a direct, cause to induce the generation of animal life in the nuts and thus en-' tailed the damage complained of. On this feature of the case the record is not replete with evidence, but we440 believe there is sufficient in the facts and circumstances to authorize a reasonable inference that the worms in the nuts were occasioned through their being retained in a closed box car for a number of days in railroad yards along the route during a heated spell. It appears that shelled English walnuts are kept by the dealers in cold storage in order to prevent the hatching of the germ which inhabits them. The identical nuts involved here were in cold storage for a period of three months in New York before the shipment and it is to be inferred that had they reached St. Louis within.three to five days and been deposited in cold storage again, the worms would not have appeared. It is true the president of plaintiff company said that at eighty degrees it would require from three to six weeks to hatch the eggs.' The proof is clear, however, that at from seventy to seventy-five degrees the germs will hatch and give forth worms-. At different places along the route the thermometer at the government weather stations is shown to -have registered from sixty-eight to seventy-five degrees. But the thermometer readings were had at the weather stations and not inside of a closed box car laden with boxes of shelled nuts. There is evidence in the record from which it may be inferred that the condition of temperature would be considerably higher than eighty degrees within an inclosed box car laden with shelled nuts while the car was standing at different places in the railroad yards throughout the country during the days the thermometer ranged from seventy to seventy-five at the nearby weather stations. In view of all of the facts and circumstances, and the inferences which they afford, we believe this question, too, was one for the jury. Ordinarily the'measure of damages in cases such as this one is the difference between the market value of the goods if sound and the market value thereof . after the injury at the point of destination, with in — 441 — terest from the time the goods should have been delivered, less the amount of freight charges due for their transportation. But in this case the bill of lading expressly stipulates that the amount of any loss or damages for which the carrier may be required to' respond shall be computed at the value of the property at the place and time of shipment. According to this, the parties expressly agreed that the damage should be ascertained by reference to the value of the property at New York on October first, for such was the date of shipment. It is competent for the partiés to so contract and the courts sustain and enforce their stipulation in that behalf in accordance with the standard of cost or value which they have thus fixed. [See Gratiot St. Warehouse Co. v. M., K. & T. R. Co., 124 Mo. App. 545, 566, 567, 102 S. W. 11; Caples v. Louisville, etc. R. Co., 17 Mo. App. 14; Rogan v. Wabash R. Co., 51 Mo. App. 665; Dean v. Toledo, St. L., etc. R. Co., 148 Mo. App. 428, 448, 128 S. W. 10.] There is no^ evidence as to the value of the nuts at New York at the time of shipment. The evidence touching this matter relates to their value in St. Louis and the amount of loss and depreciation; that is, by showing the percentage of nuts which were destroyed and thrown away and the percentage of the remainder which were damaged at so much per pound. On this evidence the instruction for plaintiff touching the measure of damages authorized the jury to award as damages the difference between the value of the nuts in question as they were delivered to plaintiff and the value of the nuts had they been delivered to it without an unreasonable negligent delay in the transportation, etc. This instruction treated with the value of the nuts at St. Louis and the difference therein before and after their depreciation as the standard by which the damage should be measured when under the express contract it should have set up instead their value at New York on October first and the difference before and after injury in — 442 — such values. Under the stipulation contained in the hill of lading, this .was an erroneous direction for which the judgment must be reversed. The judgment will, therefore, be reversed and the cause remanded. It is so ordered. Reynolds, P. J., and Caulfield, J., •concur.