#### OREGON SHORT LINE RAILROAD CO. v. THE UNITED STATES

[No. C-767.

Decided February 15, 1926]

*On the Proofs*

*Transportation; loss and damage; proof.*— Where livestock is lost or injured en route, and from bills presented by the carrier for freight charges the defendant deducts the damages paid by it to the owners of the horses under a contract of hire, and the value of the livestock so lost or injured and the liability of the carrier therefor are not established, the carrier may recover the amount deducted.

*The Reporter's*statement of tbe case:

*Mr. William R. Harr*for the plaintiff. *Mr. Charles H. Bates*was on the brief.

*Mr. Joseph H.*Sheppard, with whom was *Mr. Assistant Attorney General Herman J.*Gdllowuy, for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff is a corporation duly incorporated under the laws of Utah, and during the transactions hereinafter set forth in these findings of fact was, and still is, a common •carrier engaged in the transportation of passengers and •freight in Utah, Idaho, and other States under tariffs duly filed with the Interstate Commerce Commission according to'law.

II. About March 10, 1920, the Bureau of Public Roads of the Department of Agriculture, which was engaged in the •construction of Government roads near McCall, Idaho, hired a number of horses from Messrs. Smith & Green, a firm of •contractors and graders, located at Preston, Idaho. It does .not appear whether there was any written agreement covering the hiring of these horses or what the terms of hiring were. The horses were shipped to Government officials at McCall, Idaho, early in May, 1920, and had been examined •by a veterinarian at that time and were then in good condition, except that one of them was crippled and was not used but was in its crippled condition returned in October.

*648III. In October, 1920, at the request of the proper officials of the Government the plaintiff transported on Government bill of lading A-129517, dated October 28, 1920, from McCall, Idaho, 20 head of horses consigned to Messrs. Smith & Green at Preston, Idaho. On the face of said bill of lading was the statement that the property was received “ in apparent good order and condition * * * to be delivered in like good order and condition to Smith & Green.” On the reverse side of said bill of lading in the space provided for “ Report of loss, damage, or shrinkage ” was the following-statement signed by Smith *&*Green, per J. H. Diers: “ The within shipment was received with the following loss, damage, or shrinkage: One horse dead, value $150; one horse crippled, damage $100; balance of horses in poor condition.” It does not appear how said values were arrived at. The horses during their transportation from McCall to Preston, Idaho, consuming two days and a night, were in charge of the agent of the Government, and were unloaded once in 24 hours for water and feed.

IV. The said horses at the time of shipment had been fed on grass and were in poor condition. One of them had been so badly crippled as to be practically worthless. One horse died during the trip, and the crippled horse died about 60 days after arrival at Preston. The other horses were in bad condition when received by their owners. No evidence has been submitted as to the value of the two horses lost.

V. The evidence does not show that any of the horses were injured or lost because of any negligence or want of care of plaintiff or any of its agents.

VI. For the services described in Finding III the plaintiff presented its bill F-398, for $165, made up of charges for freight, $139; bedding, $1; feed, $25; accompanied by said bill of lading A-129517, to the accounting officer for direct settlement. This bill being insufficient in amount to settle the damage claimed by the consignees of the horses, $250, the accounting officer withheld payment. Thereafter the plaintiff presented another bill, F-399, to the accounting officers for other services, stated at $420.62. The two bills amounted to $585.62, of which $250 was disallowed, and the *649balance, $335.62, was allowed, on February 26, 1921, in settlement No. 37956, and paid by Treasury warrant.

VII. The said bill of lading A-129517 provided, condition 2: “ Unless otherwise specifically provided herein, this bill of lading is subject to the same rules and conditions as govern commercial shipments made on the usual form provided therefor by the carrier.”

VIII. When the shipment was made a “ livestock contract ” was executed, such as in general use on the plaintiff’s lines, which provided, with respect to such shipments, as follows:

“ p * * * No carrier shall be liable for damages for loss, death, injury, or delay to said animals, or any thereof, not caused by it, but nothing contained in this contract shall be deemed to exempt the initial carrier in case of a through interstate transportation from any liability for loss, death, damage, or injury caused by it, or any common carrier, railroad, or transportation company to which the livestock may be delivere4 under this contract. The amount of loss or damage for which any carrier is liable shall be computed on the basis of the value of the stock at the time and place of shipment under this contract.

‡ ‡ ‡

“ 3. The shipper will, at his own risk and expense, load, unload, care for, feed, and water the stock until delivery of same to consignee at destination, and will furnish to go with the stock for that purpose one or more attendants, according to the rules of the carrier * * *.

$ $ $ ‡ $

“ 5. Unless notice of claim for shrinkage, detention, delay, loss, or death of, or damage or injury to, said livestock is presented in writing to the station agent of the carrier at the point of delivery, or at point of origin, within ninety (90) days from the unloading of said stock at destination, or in case of failure to make delivery, then within ninety (90) days after a reasonable time for delivery has elapsed, and such notice be supplemented by shipper within four (4) months from said date of unloading at destination, or in case of failure to make delivery, then within four (4) months after a reasonable time for delivery has elapsed by filing with such agent definite claims in writing specifying character and amount of claim; such claim shall be deemed to have been waived, and each carrier participating in the *650service performed or called for by this contract shall be discharged from liability; provided, however, that if loss,, damage, or injury complained of was due to delay or damage caused or contributed to by the carrier, or its employees,, while being loaded or unloaded, or if damaged in transit by carelessness or neglect of the carrier, or its employees, then no notice of claim or filing of claim shall be required as a condition precedent to recovery.”

IX. Messrs. Smith & Green, the owners, filed a claim against the Government for damages for the loss of their two said horses, and received payment therefor in the full amount of their claim, $250.

The court decided that plaintiff was entitled to recover.

Campbell, *Chief*Justice,

delivered the opinion of the court:

The railroad company transported some horses on Government bill of lading from McCall, Idaho, to Preston, Idaho, the bill of lading containing the provision that the property was in *“*apparent good order and condition.” The horses had been hired by the Bureau of Public Boads of the Department of Agriculture prior to the shipment mentioned for use on roads near McCall and were being returned to their owners from whom they had been hired. The terms of the hiring do not appear from the evidence. During the period of transportation the horses were in immediate charge of an agent of the Government and were unloaded once in 24 hours for water and feed. The duration of the transportation was two days and one night. One animal died during the trip, and another was so badly crippled that it died in about 60 days after its arrival at Preston. The facts, show that this horse was badly crippled before shipment and not during its transportation. There is no evidence in this record to show the cause of death of the horse that died on the way. The owners of the horses were paid $250 as compensation for the loss of these two horses. The question in this case is whether this amount was properly deducted from the plaintiff’s bill rendered for the transportation of the horses and for other items. The proper amount claimed and due upon these bills was $585.62. But from *651this sum there was deducted by. the accounting officers the amount paid to the owners of the horses, and only the balance of the bills, $335.62, was paid to the plaintiff.

Admittedly it is entitled to the balance of its bills unless the deduction was properly made. That there was a liability on the part of the Government to the owners of the horses under its agreement of hiring may be assumed, because the animals were not returned as they had been received by the Government. There is no proof, however, as to what the terms of the hiring or bailment were. It does appear that 2 horses out of the 20 were lost to the owners. It is not shown, however, that the railroad company was responsible for this loss. One of the horses was crippled before shipment and was delivered in its crippled state but died about 60 days thereafter. The other horse died during shipment, but there is no proof of any negligence or want of care on the part of the carrier or its agents. The Government had a caretaker in charge, and he could have shown if it was a fact the responsibility for the condition of the one horse. This court in *El Paso & Southwestern Railroad Co.*case, 55 C. Cls. 479, which involved deductions from transportation bills on account of alleged losses of certain livestock, said:

> “ We do not assert that there is not warrant in law for the deduction made by the defendant 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.”

There is no evidence in the instant case upon which the court can ascertain the value of the two horses, and, as already said, the liability of the carrier for their loss is not established. The amount of the deduction, being the amount paid by the Government to the owners under this agreement of hiring, is not, without more, the measure of the recovery against the carrier. The latter is entitled to be heard on the question of its liability under its contract of carriage. One horse was crippled before it was shipped and was so delivered. There can be no liability for this condition upon *652the plaintiff. No value of the animal that died is proved. In the circumstances stated the court can not sustain the deduction, and should award judgment for the amount due plaintiff and withheld. And it is so ordered.

Graham, *Judge;*Hay, *Judge;*Downey, *Judge;*and Booth, Judge, concur.