LIABILITY OF A CARRIER FOR INJURY TO FRUIT FROM DELAY IN TRANSIT.

Court of Appeals for Delaware County.

#### Walker D. Hines, Director General of Railroads, and the Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. S. A. Dinovo et al.

Decided, November Term, 1920.

*Carriers*— Liability *of, for Injury to Goods from Negligent Delay in Transit*— May *Refuse to Accept Shipment for Lack of Facilities . —But Having Accepted a Shipment Must Answer for Damages Due to Delay*— Sufficient *Averments in Action Against Director ' General.of Railroads*— Evidence *as to Value of Goods Lost or Damaged in Transit.*

i. In an action against a named railway company and the Director General of Railroads for damage to goods while in transit during the period the railroads were under federal control, the elimina*2tion of the offending company by motion does not render tbe petition demurrable as to the Director General, where it is averred that he was in joint ppssession, control and operation of the said road at the time the injury was suffered.

2. The admission of evidence in such a case as to the market value of the goods at the time and place of their purchase, as tending to show value at the time the injury was suffered, is not prejudicial to the carrier; and where after consultation with the agent of the carrier the consignee receives the direction to “go ahead, unload them and do the best you can,” and this is done with diligence and the goods sold and a statement submitted of the names of the purchasers with the amounts paid, the consignee has performed his full duty and the result of the sale is the value of the goods at the time.

3. When a common carrier receives perishable articles for transportation, it undertakes to exercise such care and diligence as may be necessary for their carriage without injury, and whether or not that was done in a given case is a question for the jury under proper instructions by the court.

*Marriott, Wickham, Freshwater &' Marriott,*for plaintiff in error.

*Hough & Jones,*contra.

Heard on error.

Shields, J.

This action was based upon the alleged negligence of the plaintiff in error in delaying the transportation and delivery of a certain shipment of fruit from New Oreleans, La., to the defendants in error at Delaware, Ohio, as a result of which, as claimed, said fruit became unfit for sale in the market and the defendants in error suffered damages.

Plaintiffs below, defendants in error herein, in their petition in the court below, after averring their co-partnership in doing a wholesale fruit business in Delaware, Ohio, the incorporation of. the C., C., C. & St. L. Ry. Co. and the relation of Walker D. Hines, as the Director General of Railroads, and as such having the joint possession, control and operation of the property of the said C., C., C. & St. L. Ry. Co., allege that on January 13, *33918, a shipment of bananas was made to them from New Orleans, La., by way of the Illinois Central Railroad, and the Louisville & Nashville Railroad to Cincinnati, Ohio, and on July 17, 1918, the car containing said bananas was diverted to said C., C., C. & St. L. Ry. Co. for transportation to Delaware, Ohio, at which time the bananas were in good condition and the car iced. That said ear did not arrive at Delaware until 8 p. m., of July 19, 193 8, and was not placed by said .railway company for unloading until 7 a. m. of July 20, 1918. That the failure of said car to arrive at Delaware until 8 p. m. of July 19, 1918, was due to the negligence of the defendants in the transportation of said bananas in said ear and in the delay of the' delivery of the same, and that by reason thereof said bananas reached -Delaware-in bad condition, all of said bananas being more or less over-ripe and unfit for the general market, to the damage of the plaintiffs in the sum of $503.18, and interest, for which judgment was prayed.

For reasons appearing in the record, the action as to the C., C., C. & St. L. Ry. Co. was dismissed, and upon motion the name of John Barton Payne was substituted for the said AValker D. Plines, as agent, who filed an amended answer and for a first defense admitted the shipment of the bananas, as alleged in said petition, that the car'containing the same arrived in Delaware, Ohio, July 19, 1918, but denies all the other allegations of said petition.

For a second defense he alleges that the car containing said bananas was in charge of a messenger, the agent of plaintiffs, until the same was delivered to the Director Generl of Railroads operating the C., C., C. & St. L. Ry. at Cincinnati on July 17, 1918, at 6 :30 a. m., and that from that time until its arrivel at its destination said ear was handled according to the direction of the plaintiffs in so far as the care of the car was concerned; that said car left Cincinnati July 18, 1918, at 4 a. m., by the first train available for transporting said car after the delivery of the same to the said Railway Company, and that said car was handled from Cincinnati to Delaware on the first trains available for transporting the same, and that there was no delay in *4tlie transportation of said car between said points, and he therefore asks that said petition be dismissed.

A reply in the nature of a general denial of the allegations contained in the second defense of the foregoing answer was filed by the plaintiffs.

Upon trial had under the issues thus made a verdict and judgment were recovered by the plaintiffs below and a petition in error was filed in this court to reverse said judgment upon the grounds hereinafter stated.

One of the grounds of error assigned in said petition in error was that the court below erred in overruling the demurrer of the Director General of Railroads to the petition of the plaintiff below, because there was no cause of action pleaded therein against him. In view of the averment in said petition that the director of railroads had the “joint possession, control and operation of the said C., C., C. & St. L. Ry.” at the time of the delivery of the said fruit at Cincinnati to said railway company for its destination, we are of the opinion that the action of the court below in overruling said demurrer was proper.' True, the record shows that the said railway company was afterward, upon motion, eliminated from the case, but the action survived as against the Director General of Railroads — the negligence charged against them being joint. Following the method' prescribed by the Act of Congress, approved February 28, 1920, providing for the appointment of an agent by the President after federal control of the railroads had been terminated; that suits may be brought against him for causes arising before such control, etc., such agent was substituted for the Director General of Railroads and the ease properly proceeded against him.

Error in the admission of evidence upon the trial over the objection of the plaintiffs in error was also assigned, especially the evidence given in relation to the value of the fruit. Of course its value was the market value of the fruit at the time and place where purchased.. Whether or not the fruit in question was of a particular kind, if' there are different grades of fruit of this character, does not appear, and while the price paid for an article of merchandise may not necessarily determine its value, still *5occasions sometimes arise where the price paid for an article may be shown and considered by the jury as tending to show its value, and in this instance we find nothing in the record in this respect that can be construed as working prejudice to the plaintiff in error.

Another objection to the testimony was that of the witness Ma-honey as to the condition of the fruit on its receipt by him as" agent for the railway company. The shipment was of perishable fruit, a condition of which he knew, or was bound to know, and independent of what the rules of the railway company required of him, it was plainly his duty to ascertain the condition of the fruit before receiving it for further transportation. His testimony as to his indorsement of the statement referred to in the record, we think, was clearly competent.

Another objection was as to the disposition of the fruit by the defendants in error. It appears that the defendants in error after calling the attention of the agent of the railway, company to its condition, and who replied, “Go ahead and unload them and do the best you can,” adopted his suggestion and at once took possession of the fruit upon its delivery and placed said car to be unloaded at Delaware on the morning of July 20, 1918, and for aught that appears in the record, they were diligent in disposing of it in the best possible manner and for the highest price obtainable therefor, corroborating their testimony as they did by introducing a detailed statement of the persons to whom the fruit was sold and the prices received therefor. This was the measure of their duty, and having done this, was not such sale, or sales, the value of the fruit at that time? We think it was.

Making further objections, counsel for plaintiff in error urge that “there was no evidence to justify the verdict, that there was no evidence to show that there was any delay in the shipment,” and in this connection in their brief they state “that the Big Four Railroad is not required to run special trains to accommodate banana shipments for the plaintiff, ’ ’ etc. As already stated, the ground of recovery in this action was negligence— negligence in delaying- the transportation of the car containing trarily in the receipt and transportation of' merchandise or other *6this fruit from Cincinnati to Delaware, and that such delay caused damage to the fruit. The gist of the action was in the charge not only that there was delay in such transportation, but that there was unnecessary delay, amounting to negligence. This was a question to be determined by the jury, under proper instructions of the trial court. That there was evidence before the jury tending to sustain the contention of both the defendants in error and the plaintiffs in error in this respect is apparent from the evidence contained in the bill of exceptions, and the credibility of the witnesses and the weight to be given their testimony being for the jury, a reviewing court will be slow to disturb the finding of the jury unless for good and sufficient reasons, which do not appear to exist in this case. In passing, we can not overlook the statement of counsel in reference to running special trains “to accommodate banana shipments for the plaintiffs.” This may be true in a certain sense, but when a common carrier, as in this instance, a railway company, receives perishable fruit for transportation, does not such carrier undertake to exercise such care and diligence as may be reasonably necessary for the transportation of such fruit? In Cyc., 444, it is laid down that:

> “A carrier is bound to know when it accepts property for shipment, that it has or can obtain facilities for its transportation within a reasonable time, and as to any cause of delay it might anticipate, it should then advise the shipper, and if it does not do so, the delay will not be excused. ’ ’

And on page 445 the following is laid down:

> “If the carrier treats all alike and furnishes transportation as far as his facilities will permit him, as has heretofore been explained, he may refuse to receive goods which he can not transport without rendering himself liable in damages for such refusal. Having received goods for transportation, the same excuse is not open to him, and he may be held to answer for damages due to delay, although occasioned by an unusual press of business or the lack of proper facilities.”

Having assumed the character of a common carrier, such carrier can not evade public responsibility by assuming to act arbi*7property, nor *can it*avoid the consequences of a contract clearly implied from the character of its employment. Railroads are amenable to law and must comply with all reasonable requirements looking to the property entrusted to them for transportation and, in the absence of good reasons appearing to the contrary, they are likewise required to carry out their contracts with reasonable dispatch.

.Exceptions were also taken to the charge of the court. Said charge is brief and, in our judgment, it contains a correct statement of the law, including the instructions on the question of damages-

Upon the whole, we find no error in the case prejudicial to the plaintiff in error and the judgment of the court below will be affirmed. Exceptions.

Houck, J., and Patterson, J., concur.