#### EL PASO & SOUTHWESTERN RAILROAD COMPANY v. THE UNITED STATES.

[No. 34020.

Decided October 25, 1920.]

*On the Proofs.*

*Contract; transportation of live sioclc; liability for loss.*— Where the Government ships stock over a railroad, and by bill of lading assumes the risk of the safety of said stock while in the company’s stockyards, if the pens were of the character usually provided by persons of ordinary prudence under the circumstances the Government could not legally deduct the value of such stock stolen from the company’s stockyards from moneys due by it to the company under other transactions, and the company may recover the amount so deducted.

*473*The Reporter’s*statement of the case:

*Mr. William R. Harr*for the plaintiff. *Harr <& Bates*were on the briefs.

*Mr. Horace 8.*Whitman, with whom was *Mr. Assistant Attorney General Frank Davis, jr.,*for the defendants.

The following are the facts of the case as found by the court:

I. Plaintiff, the El Paso & Southwestern Railroad Co., is a corporation of the 'State of Arizona, and is now, and was at the times hereinafter referred to, a common carrier by railroad engaged in the transportation for hire of passengers and property, between the points hereinafter mentioned, in conjunction with the Southern Pacific Co. as connecting carrier.

Plaintiff is a member of an unincorporated association of railroads known as the El Paso & Southwestern System, through which association, at the times hereinafter referred to, it transacted its business as a common carrier, such as making contracts for transportation, publishing tariffs, rendering accounts to the Government, etc.

II. On or about July 10, 1915, the United States, through the Quartermaster Corps of the Army, shipped 17 mules, over the lines of the Southern Pacific Co. and the El Paso & Southwestern Railroad Co., plaintiff herein, pursuant to a written contract and agreement embodied in Government bill of lading No. 92, dated Davis, California, July 10,1915, and signed by A. J. Loeser, agent for the Southern Pacific Co., and in the name of Lieut. Col. W. H. Hart, Q. M. Corps, U. S. A., by C. E. Stanton, Maj. Q. M. Corps, U. S. A., for the United States.

The aforesaid Government bill of lading stated that the public property described therein, including said mules, had been received in apparent good order and condition—

*u*to be forwarded *subject to the conditions stated on the reverse*hereof, from Davis, California, to Douglas, Arizona, by said company and its connections, there to be delivered in like good order and condition to Quartermaster via S. P. Co., E. P. & S. W. Ry.”

*474On the reverse side of said Government bill of lading, under the head of “ Conditions,” it was provided:

“ 2. For railway transportation this bill of lading is subject to all the conditions of the uniform or standard bills of lading.”

The uniform or standard bill of lading referred to in said Government bill of lading, with respect to shipments of live stock, provides:

“ Third. That said second party [the consignor] at his own risk and expense is to take care of, feed, water, and attend to said stock while the same may be in the stockyards of the first party, or elsewhere, awaiting shipment, and while the same is being loaded, transported, unloaded, and reloaded, and to load, unload, and reload the same at feeding and transfer points, and wherever the same may be unloaded and reloaded for any purpose whatever, and hereby covenants and agrees to hold said first party harmless on account of any loss or damage to his said stock while being so in his charge and so cared for and attended to by him or his agents or employees as aforesaid, and in case the first party should, for any reason, undertake to water and feed said stock, it shall not be liable for insufficient supplies or imperfect discharge of such undertaking.”

The rules and regulations embodied in the El Paso & Southwestern System Freight Tariff No. 1417 (I. C. C., No. 854), governing the transportation of live stock between all stations on said system, effective at the times herein referred to, provided:

“ *Item No. 55. Corrals and Btoclc*Pens, *TJse of.*

“ Corrals and stock pens provided at the several stations are for the use and convenience of live-stock shippers; and it must be distinctly understood that this company does not assume any liability on account of live stock while in the corrals or stock pens.

“ *Item No. 95. Special Instructions.*

«í* «I* H» H*

“ Owners of live stock will be required to load and unload carload shipments of live stock.”

III. Said 17 mules, shipped as aforesaid under the contract and conditions aforesaid, were accompanied by and in charge and control of one Harry Sweitzer, as agent of the *475Quartermaster Corps, United States Army, during the whole of said trip from Davis, Calif., to Douglas, Ariz., under a contract between the depot quartermaster, United States Army, at San Francisco, Calif., acting for the United States, and said Sweitzer, the terms and conditions of which are set forth in a letter of instructions issued by Capt. F. W. Griffin, captain, Quartermaster Corps, to Sweitzer, which letter is set forth in Paragraph III of the plaintiff’s petition, and is made a part of these findings by this reference.

IV. Said mules were duly and safely transported by the Southern Pacific Co. and the plaintiff company, under and pursuant to the contract and conditions aforesaid, from Davis, Calif., to Douglas, Ariz., said Harry Sweitzer, as agent of the Quartermaster Corps, United States Army, being in charge of said mules throughout the trip.

The train of which the car containing the said mules formed a part arrived at the freight yard of the El Paso & Southwestern Eailroad Co. at Douglas, Ariz., about midnight of July 16, 1915, where said car was cut off and switched to the stockyards of said company about 1.15 a. m., July 17, said Harry Sweitzer, the agent of the Quartermaster Corps in charge of said mules, riding in said car from the freight yards to said stockyards.

The quartermaster at Douglas was called on the telephone about 9.30 p. m. on July 16 by a dispatcher of the El Paso & Southwestern Eailroad Co. and informed that a carload of mules consigned to the quartermaster at Douglas would arrive shortly. The quartermaster refused to accept delivery that night, but directed that the mules be unloaded.

Upon arriving at said stockyards said Harry Sweitzer, pursuant to express orders issued to him by the quartermaster of the United States Army at Douglas, Ariz. (who had been informed by the train dispatcher of the El Paso *&*Southwestern Co. at Douglas that the mules would arrive about midnight on the night of July 16, 1915), proceeded to unload and did unload all of the 17 mules from said car and put said mules in said stockyards.

The car was spotted and no directions or assistance was given the United States agent in unloading. There were no electric lights at the stockyards.

*476After placing said mules in said stockyards said Harry Sweitzer, agent of the Quartermaster Corps, U. S. Army, as aforesaid, left the stockyards and went into the town of Douglas for the balance of the night and left said mules unguarded, said quartermaster, U. S. Army, at Douglas, not having furnished any guard for said mules, notwithstanding he had ordered the same to be unloaded. Said Harry Sweit-zer did not return to said stockyards until about 5.30 a. m. on the morning of July 17, 1915, when he found the outside gate of the stockyards standing open and all the mules gone, having either escaped or been stolen therefrom.

Thereafter seven of said mules were recovered by the United States, but 10 of said mules have never been recovered.

Y. The stock pens of the plaintiff company into which said mules were put by said Sweitzer, after he unloaded them from the cars, were in good condition and properly and sufficiently fenced, and the gates of said pens were all equipped with fasteners by which they could be securely fastened, and no responsibility or negligence can be attributed to the plaintiff company in respect to the escape or theft of said mules from said pens.

VI. In settling the'account of the El Paso & Southwestern System, its account (E. P. & S. W. freight bill No. 61983) in the total sum of $1,675.74, for certain bills of lading accomplished by the plaintiff company, including said Government bill of lading No. 92, the accounting officers of the United States refused to pay the same in full and disallowed and deducted therefrom the sum of $1,021.20, said deduction being made on the alleged ground that plaintiff was liable for the loss of said 10 mules at their valuation in said bill of lading of $100 each, and also for the cost of bringing one mule from Nogales, viz, $21.20.

Plaintiff accepted payment of the less amount so authorized to be paid on said account, to wit, $654.54, only under protest.

Booth, *Judge,*

delivered the opinion of the court.

The plaintiff company transported, on a Government bill of lading, for the defendants 17 mules from Davis, *477Calif., to Douglas, Ariz. The transportation service, in so far as carriage of the mules is concerned, was completed without unusual incident. The issue arises upon a question of liability for the loss of 10 of the mules subsequent to their being inclosed in the stock pens of the plaintiff company at Douglas, Ariz.

The mules were placed on board the cars at Davis, Calif., and a caretaker, Harry Sweitzer, was placed by the defendants in charge of the same. Sweitzer accompanied the shipment during its entire course, and on the arrival of the car at Douglas unloaded the mules, placed them in a pen in the plaintiff’s stockyards, fastened the gates with wire, and then retired for the night. The train did not arrive in Douglas until some time near midnight July 16, 1915. and it was at least an hour and fifteen minutes later before the mules were unloaded. The night was dark and rainy. In the early hours of the morning of July 17 Sweitzer, on going down to the yards to water and feed the mules, discovered that they were all gone. The visible evidence indicated horse thieves, and the stealing of the mules was subsequently confirmed by retaking 7 of them, leaving a total loss of 10. Sweitzer made no complaint of any of the surroundings at the time the mules were unloaded, except as to an absence of a light or lights. At any rate, he admits that he finally overcame this difficulty and penned up the mules so that in his judgment they could not have escaped without outside interference. The record sustains beyond contradiction the fact that the stockyards of the company were in good condition, and unless the absence of lights and locks for the outside gates is to be held sufficient to condemn them, it is not claimed by the defendants that any other circumstances will inure to their benefit. The defendants paid the freight charges on the shipment, and subsequently, out of other sums due the plaintiff company for other and distinct transportation service, deducted the sum of $1,021.20 for the loss of said 10 mules. This suit is to recover the full amount so deducted.

The clause in the bill of lading upon which the transportation was furnished is set forth in Finding II. Without repeating it in full, it will suffice to observe that the re*478sponsibility for the stock was expressly put upon the defendants “ while the same may be in the stockyards of the first party.” A railroad company may provide in the bill of lading that the shipper assumes liability for loading and unloading live stock and thus relieve itself from liability for such service. The defendants concede this to be the law, and the authorities cited in plaintiff’s brief sustain it. *East Tennessee, etc., R. R. Co.*v. Johnson, 75 Ala., 596; *Fordyce*v. *McFlynn,*56 Ark., 424; *Bowie*v. *Baltimore, etc., R. R.*Co., 1 MacArthur (D. C.), 94; *Newby*v. Chicago, *etc., R. R. Co.,*19 Mo. App., 391; *Missouri, etc., R. R. Co.*v. *Chittim,*60 S. W., 284.

The carrier, however, is legally obligated to provide suitable stock pens, in good condition, or, as the court puts it in *Chicago, R. I. & G. Ry. Co.*v. *Crenshaw,*126 S. W., 602, “the true test seems to be whether the pens under all the circumstances were such as a person of ordinary prudence would have provided.” Thus we assume from the authorities cited that if the railroad company provides pens suitable and in good condition for the restraining and care of live stock, it may relieve itself by express stipulations in the bill of lading for responsibility for the same while in the pens of the company in charge of an agent of the shipper.

It is obviously the fact that at the time of this loss there was serious domestic disturbances in Mexico, and it can not be gainsaid that horse stealing was more or less prevalent, but these local conditions are not such as to impose upon the plaintiff company the necessity of providing facilities for the shipment of live stock that would render theft of the same impossible. It can not be done. If the company adopts the means usually employed in transportation service of this character, and such as suggests itself to prudence and caution, it can not be held to a stricter responsibility. The defendants insist that chains and locks upon the gates might have forestalled the loss. The insistence is purely hypothetical. One desperate enough to execute the crime would probably not have been deterred by chains and locks attached to wooden posts and gates. A single light would not have availed against the invasion, and it is hardly possible that under all the circumstances it can be said that a *479station, the size and importance of Douglas, would entail upon the company the maintenance of a series of electric lights throughout the night to prevent thefts. There is no evidence in the record warranting such an assumption. The company under the circumstances discharged its obligations when it furnished suitable stockyards in good condition for the reception of the stock in question.

We do not assert that there is not warrant in law for the deduction made by the defendants, as it was made in this case, but we have no hesitancy in announcing that no authority has been produced upon which such a course is predicated. The controversy here involves the exercise of a judicial function, the determination of liability under the law. It is not the usual differences which arise from the presentation of accounts to the accounting officers by the railway companies in which how much or how little may be due under the respective bills of lading. There is no dispute in the instant case as to liability for freight charges; no issue arises as to the amount due for the same. The company presented its freight bill and it was paid. Subsequently the accounting officers of the defendants reviewed the case as found in the written reports of the transaction, and without notice or opportunity to cross-examine witnesses, held the plaintiff company legally responsible for the loss of the mules, and deducted the amount from *other*funds due the company, but not then paid, for other transportation services in nowise here involved. Without further comment, it would seem from the face of the record that some positive authority for such a course would at least be cited to sustain the same.

Judgment is awarded the plaintiff company for $1,021.20. It is so ordered.

Gkaham, *Judge;*Hat, *Judge,*Downet, *Judge;*and Campbell, *Chief Justice,*concur.