Whicher v. The Steamboat Ewing

21 Iowa 240 | Iowa | 1866

Dillon, J.

Counsel do not essentially differ as to the law of the case. The case turns chiefly upon the facts.

i. new fiSfiig of aSamst evidence. The plaintiff caused the potatoes to be shipped through Block & Wallace, the agents of the steamboat line and °f the defendant at Muscatine. The plaintiffs intrusted to these agents blank bills of lading, f° he signed by the proper officer of the boat, These were in the usual form, and did not contain the words exempting the boat from liability “for freezing.” These were signed by the clerk, who inserted the’ clause, “ not accountable for freezing,” and retained the same. The plaintiffs called upon Block & Wallace for the bill of lading, and they filled up, but did not sign, a bill in the usual form, and delivered it to the plaintiffs. This did not contain the clause in relation to freezing. These agents had no authority to sign, bills of lading for the boat. If they knew of the clause in relation to freezing, they forgot te> insert it in the unsigned bill which they delivered to the plaintiffs, and which they claim that they delivered only as a memorandum. Plaintiff' did not know until after the arrival of the potatoes at St. Louis of the special clause. Under these circumstances the question arises, was the clause,'“not accountable for freezing,” binding upon the plaintiffs ?

We will assume that it was; and yet we think that we would not, for other reasons, be justified in disturbing the finding of the referee. The referee found from the evidence that there was unreasonable delay in the transportation of the articles in question, and that owing to this and the carelessness of the boat the damage was caused. The .evidence shows that the defendant received the potatoes November 5; that it arrived at Montrose (at head of lower rapids) the next day; that the water was too low for the boat to pass; that the passengers went by cars to Keokuk, and at once took the Metropolitan for St. Louis; that the potatoes were put on cars the next day for Keokuk, and stowed there in the station-house ; that the other freight was brought over by lighters, which consumed some two days; that the potatoes were not shipped until the return trip of the Metropolitan (in connection with which the defendant run), and did not arrive in St. Louis until the night of the 13th of November, and were not delivered until the next day (the 14th). The testimony tends to show, and the referee found, that the potatoes were frozen very soon after the Metropolitan left Keokuk, probably on the night of the 12th. It is in evidence that there was another line of packets running between St. Louis and Keokuk, and it does not satisfactorily appear that the defendant made any effort to have the potatoes reshipped on this line, without waiting for the return of the Metropolitan. The weather was mild, or at least not freezing cold, between the 5th- and the night the potatoes were frozen. As an original question, it admits of some considerable doubt whether the unreasonable delay or want of diligence on the part'of the defendant has been satisfactorily established, especially if the burden of proof as to these facts rests upon the plaintiffs. Story Bail., § 573; Angelí On-Car.', § 276. But it must be borne in-mind that the question is not presented to us as an original one; but the finding of the referee is to be regarded as having the same force and weight as the verdict of a jury. Rev., §§ 3095, 3096. Upon the evidence, a jury had failed to agree. And upon the evidence as presented in the record, if the jury had found, as did the referee, that there was a want of due diligence in réshipping and in taking care of the potatoes (considering the advanced state of the season), we do not think such a conclusion would be so clearly against the evidence as would justify an appellate court to interfere.

Bor, although the bill of lading contained the words, “ not accountable for freezing,” and although it be conceded that this was binding upon the plaintiffs, yet this would not exempt the defendant from the duty to deliver the goods “ without delay,” and if it reshipped them, as it had privilege of doing, -it should do so with all reasonable diligence. If it preferred to wait for boats of its own line rather than to ship by a rival line or make efforts to do so, it must take the risk, and pay the loss which an earlier reshipment or more adequate protection would have avoided.

Affirmed,