219 S.W. 660 | Mo. Ct. App. | 1920
About the middle of January, 1917, plaintiff shipped a carload of potatoes over defendants railroad from Chocra, Colorado, to Pueblo, in the same State. The car arrived in Pueblo, but was allowed to remain there by plaintiff more than two days when it was diverted by his order over other roads to Kansas City, Missouri, and then again diverted to Solomon, Kansas, where it was found a large part of the potatoes were frozen; whereupon plaintiff brought this action for damages. The judgment in the trial court was for defendant.
The case was heard by the court on an agreed statement of facts without the aid of a jury. It appears that the weather was very cold and that defendant furnished plaintiff with a refrigerator car "well papered and heavily strawed" and that plaintiff placed a stove therein during the three days of loading (January 11th, 12th and 13th) which he (plaintiff) kept fired, but removed immediately after the loading was completed and bill of lading signed. No instructions were given defendant as to the care to be taken of the shipment except those contained in the bill of lading.
At the time of this shipment tariff rates were filed with the Interstate Commerce Commission, known to plaintiff, in which no provision is made for heating the car, but on the contrary containing provisions or rules by which it appeared that "rating provided for freight in carloads do not obligate the carrier to furnish heated cars, nor to maintain heat in cars, for freight requiring such protection, except under conditions which the carrier's tariffs provide." *102
"Stoves, used in cars, and the fittings and fuel therefor, must be furnished by shipper, and the fuel must consist of coal, coke or charcoal, unless otherwise permitted by regulations of individual carriers." The bill of lading incorporated the tariff as a part of its provisions.
It was agreed that the potatoes would not have frozen had a stove been kept in the car heated during transportation. It was further agreed that there was no negligence on the part of either of the carriers during the transportation, "the plaintiff contending and the defendant denying that the defendant is an insurer to such an extent as makes it liable for the freezing of the potatoes during transit, notwithstanding absence of negligence."
Since defendants posted and published tariff rates made no provision for heating the car, it would have been a violation of the law for it to have agreed to such special services; it would have been furnishing special and discriminatory service to plaintiff in the face of the federal statute. [Railroads v. Kirby,
But in avoidance of the foregoing considerations plaintiff cites a change in the Interstate Commerce statute known as the Cummins Amendment adopted 1915, since the foregoing cases were decided (Sec. 8604a, 8 U.S. Compiled Stat. 1916) wherein it is declared that an interstate carrier shall be liable to the lawful holder of the bill of lading "for the full actual loss, damage or injury to such property caused by it," or other carrier *103 to whom it may be delivered, "not withstanding any limitation of liability, or limitation of the amount recovered or representation or agreement as to value" contained in the bill of lading, contract rule regulation, or in any tariff filed with the Interstate Commerce Commission; "and any such limitation, without respect to the manner or form in which it is sought to be made, is hereby declared to be unlawful and void."
It will be observed by comparison of the statute before and after amendment, that there was no change made in the requirement that the loss shall have been caused by the carrier. So that notwithstanding the full loss is to be paid regardless of tariff rates, or provision in the contract to the contrary, yet such loss must have been a loss for which the carrier would have been liable at common law and must have been caused by the carrier. The amendment did not affect the causes which would put liability for loss on the carrier, it only prevented a contract reducing totally or partially the amount of a loss for which the carrier was liable under the ordinary rules of law. In Adams Express Co. v. Croninger,
We are thus brought to the question whether the loss occasioned by the freezing of the potatoes in transit is a loss caused by defendant in the sense of the law. The cold weather was extreme. It appears from the agreed statement of facts that potatoes standing still in a refrigerator car for twenty-four hours in zero weather will freeze; and that between the time of receiving the potatoes from plaintiff at Pueblo and their final arrival (by plaintiff's diversion orders) at Scammon, Kansas, the temperature reached eleven degrees below zero. Freezing in "extreme" cold weather (by which we understand unusual and extraordinary weather) was said to be an act of God, for which a carrier is not liable unless his negligence mingled with that act, in which case the negligence will be considered the proximate cause. [Wolf v. Express Co.,
Furthermore, even though a freeze in extreme weather should not be considered an act of God, as in McGraw v. Railroad, 18 West Va., 361, yet as held in that and many other cases, if the loss occurs through the perishable character of the freight, unmingled with the carrier's negligence, it is not his act and he should not be held liable, though the burden would be on him to show that fact. [Fish v. Railroad,
Plaintiff has called our attention to a number of cases not in point, though others are contrary to those we have cited. But as said by the Supreme Court of the United States in Railway v. Rankin,
We have already seen that defendant not only did not offer special facilities to prevent the potatoes from freezing, but expressly stipulated that if a stove was used in the car it, the fuel and attendant should be furnished by plaintiff. He, of course, knew the character of freight he was shipping at the time he delivered it. He knew its liability to injury by extreme cold weather and he chose to assume the risks of all such injury as did not result from defendant's negligence.
Mention has been made of Cudahy Packing Co. v. Railroad,