IN TilE I

Supreme Court Qf Appeals of Virginia ' --

AT RICHMOND

rHE CHESAPEAKE AND OHIO RAILWAY COMPANY

v.

TIMBERLAKE-CURRIE & COMPANY, INC.

PETITION FOR REHEARING

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IN THE ..

Supreme Court of Appeals of Virginia AT RICHMOND

fHE CHESAPEAKE AND OHIO RAILWAY COMPANY

TIMBERLAKE-CURRIE & COMPANY, INC •.

PETITION FOR REHEARING

To the Honorable Judges of tke Supreme Court of Appeals of Virgin~:

Your petitioner, The Chesapeake and Ohio Railway Company, a corporation, respectfully represents that it is aggrieved by the judgment of this Honorable Court ren­dered on March 17, 1927, affirming the judgment of the

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Pad-:IC Law·& Equity Court of the City of RichmondAin the above styled case. Your petitioner therefore respectfully prays that the said. cause may be reheard for the following, among other reasons:

The facts of the case are stated in the petition for writ of error in the briefs of counsel and in the opinion of the Court, and need not therefore be restated herein.

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THE EFFECT OF INSTRUCTIONS 1 AND 2 WAS TO TELL THE JURY THAT THE DEFENDANT WAS AN ABSOLUTE INSURER AGAINST ANY CHANGE IN THE CONDITION OF THE LETTUCE. D·URING THE COURSE OF TRANSPORTATION.

After quoting the instructions granted in the instant case this Court, in its opinion, states :

"We ~~ve carefully considered all the instruc­tions given and refused, and are convinced that the instructions granted, when read together, fair­ly and sufficiently presented to the jury the law applicable to the case. The jury being properly and sufficiently instructed by the instructions granted, it is immaterial that the Court refused to give other instructions offered by the defendant."

Instructions 1 and 2 offered by t~e plaintiff and given by the trial Court were as follows:

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INSTRUCTION 1

"The Court instructs the jury that if you be­lieve from the evidence that the lettuce in ques­tion was in good condition at the time of the in-

. spection in the hands of the Rock Island Railroad Company at Chicago on April 20th and that it was delivered to The C. & 0. at Chicago in the same good condition on April 24th, and that The Chesa-

. peake and Ohio Railroad Company transported the goods to Richmond, Virginia, and there offered them for delivery to Timberlake, Currie and Com­pany in a damaged condition then there is a prima, facie presumption of law that the damage accrued to the lettuce while it was in the h~nds of The Chesapeake and Ohio Railway Company; and the Court further teUs the jury that the burden of proof in such case is upon the said Chesapeake and Ohio Railroad Company to show that said darn,a,ge did not accrue to the lettuce while in its possession, and if you further believe from the evidence that The Chesapeake and Ohio Railroad Company has · not sustained this burden of proof you must :find your verdict for the plaintiff." (Italics ours).

INSTRUCTION 2

"The Court instructs the jury that a connecting carrier who has completed the transportation and delivered goods to a consignee in a damaged condi­tion, must be held liable in an action for the da!m­age to the goods without proof that it was oc­casioned by its fault, unless it shows that it re-

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ceived them in the condition in whick it delivered them.. The condition of the goods when they were in the hands of the preceding or connecting carrier being shown, a presumption of law arises that they continued in that same condition to the time of · their delivery to the carrier completing the trans­portation and making the delivery to the consignee and that the damage accrued while the goods were in said delivery carrier's possession."' ·(Italics ours).

These instructions, it is submitted, told the jury in UD:equivocal words that the defendant was an absolute insurer against any change whatsoever in the. condition C1f the lettuce. They are both finding instructions, com­plete in themselves, purporting to cover the entire case · and direct a verdict .

. Instruction 1 said that the defendant must show that "BQ,id damage did not accrue to the lettuce while in its poBSes.sion," which under the plaintiff's evidence meant to show that it accrued while in the possession of. a pre­ceeding carrier. (Italics ours).

Instruction 2 said that the defendant "must be held liarble * * * for the damage * * * without proof that it was occasioned by his fault, unless it shows that it re­ceived them in the coiuiition in which it delwered them." ~Italics ours).

There can be no question but that both of these instruc­tions in referring to "damage" used this term in, the sense of any change in condition, whether from inherent decay,·

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or other cause, and upon the appearance of such change the jury were required without· condition. or qualification to find for the plaintiff.

It is difficult to say which instruction is the most . drastic. . At the conclusion of the plaintiff's evidence cer­tainly two defenses should have been available to the de­fendant, namely: ( 1) that the damage occurred on the line of a preceding carrier, and (2) that the damage was attributable to the inherent nature of the goods.

Both instructions denied the second defense completely. If it be conceded that the damage did occur on the de-

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fendant's line, it is manifest under the plaintiff's evidence that the cause of the damage was limited either to some negligence on the defendant's part, or to the inherent nature of the goods. If the defendant succeeded in prov.;. ing that it was not negligent, by the process of elimina­tion if nothing else, the responsible cause must have been the inherent nature.

The instructions disregarded all of the defendant's proof as to the care and attention given the lettuce in the course of transportation despite the. further automatic effect such evidence had of proving that the damage was conslusively and exclusively due to the inherent nature of the goods. They told the jury that none of this evidence ~ad anything to do with the issues in the case, that the defendant's undertaking and responsibility was to insure the goods against the operation of the laws of nature, against the physical and biological changes incident to every plant that grows.

They disregarded the long period of time the lettuce had been in course of transportation, as well as its ex­tended detention at Chicago, the icing service accorded.

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as -weU as the mechanical inspection of the car· at Rich­mond showing it to be in perfect refrigerating ·condition, as well as the very character of damage relied upon by the plaintiff, which was decay and rot. They overlooked the essential nature of the defendant's business as well as the substantial object of the contract of shipment, which is transportation, and not warranty against change of condition. They told the jury that though the defendant showed that it was not in fact negligent, it was con­clUSively presumed to be negligent so far as· the case was concerned.

It is quite true that after refusing several instructions asked for by the defendant the Court gave the following instruction (Bill of Exceptions No. 2, Rec. p. 96):

INSTRUCTION F.

"The 'Court instructs the jury that although a carrier is an insurer of goods delivered to it for transportation, yet in the case of perishable goods _the carrier is not liable for such damages as are caused solely by the inherent tendency of the goods themselves to deteriorate and decay. If therefore the jury believe from the evidence that the _dam­ages in this case were caused solely by the inherent nature of the lettuce to deteriorate and decay, un­mixed with any negligence on the part of the de­fendant,. then you should find for the defendant."

It may be assumed for the purposes of argument that the inlierent nature defense was properly presented ·to

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the jury in this instruction. This furnishes no answer to the proposition. There is nothing in Instruction F to make it paramount to Instructions 1 and 2, and it cannot be construed with these two instructions because diametri­cally opposed to them. The most logical view a jury could take would be that two mandatory instructions for the plaintiff outweighed one for the defendant. Instruc­tions 1 and 2 misstate the substantive law applicable to the case, and an incorrect statement of law in instructions purporting to cover the entire case but directing a verdict on a part of the evidence only, cannot be cured by .other instructions which correctly state the law.

It is assumed that in considering Instructions 1 and 2 this Court was influenced in its conclusions in large measure by the following language found in the opinion rendered by the United States Supreme Court in the ease of Chicago & Northwestern R.· Co. v. Wkitnack Produce Co., 258 U. S. 369, the language being also quoted in the opinion of this Court:

"A connecting carrier, who has completed the transportation and delivered the goods to the eon­signee in a damaged condition or deficient, will be held liable in an action for the damage or de­ficiency, without proof that it was occasioned by · his fault, unle~s he can show that he received them in the condition in which he delivered them. The condition and quantity of the goods when they were delivered to the first of the connecting car­rier, being shown, the presumption will arise that they continued in that condition down to the time of their delivery to the carrier completing the transportation and making the delivery to the con-

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signee, and that the injury or loss occurred while they were in his possession."

It is certainly true that the rights and duties of the respective parties to this suit are governed by Federal Statutes and the rules of liability recognized and enforced in the Federal Courts. But it is submitted that this Court in the instant case has applied the above language to a situation never intended to be covered by it. These· words as used by the United States Supreme Court were applied to a case in which the defendant had introduced no evidence whatever to establish any defense, but simply contended that the effect of the Carmack Amendment, making the initial carrier liable for damage· occurring on the line of any of its connecting carriers, dispensed with the presumption that the damage occurred on. the line of the last ·carrier. The only issue before the Court was to determine where the damage occurred and the statement of law quoted fully covered that issue. The defendant there did not attempt to say that the damage was due to the inherent nature of the goods, and there was no evi­dence in the case to support such a contention. Nor did it endeavor to show that it had properly handled the goods.

It furthermore appears that the language in question was in turn quoted in that case by the United States Supreme Court from a secondary authority, 3 Hutchinson on Carriers (3d ed.) Sec. 1348. To support the state­ment of law that author cites a large number of cases. A careful examination of the facts in these cases, as dis­closed· 'by the opinions of the Courts, show that they are

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clearly distinguished from the instant case for one or more of the following reasons:

(a) They involve the loss or deficiency in quantity of goods rather than damage,

(b) They involve damage which is plainly due to ex­ternal physical forces, sq.ch as damage due to mashing, breakage and rough handling,

(c) They involve damage to goods which are not perishable in nature,

(d) They recognize that where decay damage is in-. volved freedom from negligence exonerates the carrier,

(e) The defendant carrier introduced no evidence to support any contention either that the damage was due to the inherent nature of the goods or that it had handled the gQods without negligence.

The errors in Instructions 1 and 2 become even more strikingly apparent when it is considered what would have been the situation if the goods had been inspected ·by the plaintiff upon delivery to the defendant at Chicago and had been found in good condition. If these instructions be correct, this proof in conjunction with the proof of dam­aged condition at Richmond, would have established an absolutely conclusive case of liability. No defense would have been available to the defendant. Such a result re­veals the manifest unsoundness of this proposition of law as applied to a shipment of perishable goods which de­teriorates and decays before reaching destination. ·

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Unless therefore this case be reconsidered and reversed, it is submitted that it stands as an adjudication of the startling principle, that whenever during the course of transportation, a shipment of goods, which although it contains within itself elements of its own destruction, evi­dences any chang:e in condition or deterioration in quality, the carrier is ipso facto liable for such change or de­terioration, irrespective of how strong a showing it may make to show freedom from negligence, and irrespective of the nature of the damage. This is the practical effect of the stamp of approval placed upon the instructions given in the instant case, which, of course, will thereby stand as models in future cases.

It is not beleived that this Court intended to lay down any such harsh rule of liability, and as the matter is of supreme importance to both the defendant and other car­riers, on account of the extensive amount of perishable goods being transported daily, the defendant, with the utmost- deference and respect, asks for a definite ruling to the contrary.

It is further submitted that whatever may be the law applicable to the case at bar, Instruction 1 is hopelessly confusing and ambiguous in form, and is nothing more than a j um,ble of words devoid of any sensible construc­tion.

After telling the jury that if they found the lettuce in good condition when inspected on the Rock Island, and that "it was delivered to the C. & 0. at Chicago in the same good condition" and the C. & 0. delivered it in a. damaged condition, the instruction states that there was a "prima facie presumption of law· that the damage occurred to the lettuce while it was in the hands of the Chesapeake

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and Ohio Railway Company." The conclusion thereby an­nounced is therefore but one· of the premises on which it is founded. Surely this meaningless statement should not receive the sanction of this Court.

II.

LANGUAGE USED BY THIS COURT IN ITS OPINION SHOWS THAT IT WAS NOT INTENDED TO ENUNCI~ ATE OR APPLY THIS RULE OF LIABILITY.

That this court did not intend to enunciate any such rule of liability as would effectively dispense with the long established excepted peril, namely the inherent nature of the goods, wo do not believe. This belief is fully sub­stantiated by the following language_ used in the opinion:

"When the plaintiff proves that the goods were received by the carrier in good order and delivered by the delivering carrier in bad order, he has estab­lished a case which entitles him to recover. In order to defeat his I"ight of recovery, the burden is on the defendant to disprove these facts or to prove that the loss or damage was proximately and exclusively due to one of the five excepted causes, above mentioned, or to some cause which the con­tract excepts."

As a practical proposition, however, it is submitted that the defendant did not receive the real benefit o.f the. de­fense of the inherent nature of the goods, despite the fact that the burden or duty referred to in the above

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quotation was fully sustained. What more forceful proof of this fact could be adduced than the very testimony of the plaintiff himself that the lettuce was "rotten," "slimy,u and "badly decayed" (Rec. p. 26).

Obviously this character of defense doe~ not lend itself to proof in the same direct manner as do the defenses of the act of God and public authority. Quite frequently, as in the instant case, the defense is based upon processes going on out of sight of anyone, within containers, which in turn are within sealed r-efrigerator cars, and the proof is largely circumstantial. But on the other hand, the proof relied upon by the plaintiff as. being sufficient to make out a prima facie case, is also dependent upon a presumption t?f negligence rather than actual proof of it.

Counsel for the plaintiff in their brief and in argument took the position that the defense of the inherent nature could not be invoked if other· shipments of the same com­modity, and f.rom the same locality, could without injury remain under regrigeration for a longer period of time than this one did. This Court seemingly adopted this view. With great deference it is submitted that this view is un­sound, for the sole injury in the instant case is whether such cause had been operative as regards the particular shipment herein involved, and not whether other ship­ments under refrigeration have escaped injury despite this recognized tendency of the commodity.

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III. .

AUTHORITY QUOTED BY THIS COURT IN ITS OPINION SHOWS THAT UNDER THE FACTS OF THE IINSTANT CASE THE DEFENDANT WAS AT MOST ONLY REQUIRED TO ESTABUSH FREEDOM FROM NEGUGENCE.

In the course of this Court's opinion the: folloWing ap­pears:

"In Dobie on Bailments and Carriers,. sec. 116 p. 340, this is said: 'The carrier is not an· insurer against loss caused by the inherent nature, vice, defect or infirmity of the goods~. ThUB; ths catrrier,; when not himself at. fault, is: not liable tor· the· tl;e-.

cay of fruit,. the. evaporation of liquids, .. the·· bursting; of molasses due to fermentation, and the like·"· (Italics ours).

It is respectfully submitted that the incorporation in the Court's opinion of the above quotation is a clear recognition of the rule of liability applicable to this case, namely, that the defendant was liable only in the event that it was negligent. If therefore the defendant showed it was not negligent it was· entitled to exoneration.

Further recognition of the applicability of this rule of liability is found in the following statement in- the opin­ion:

"When the plaintiff proved that· the lettuce was received by the initia:l carriev in good condition and

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delivered by the delivering carrier in a bad condi­tion it had made out a prima facie ·case of negli-

'. ·gence which entitled it to recover. This presump­tion could riot be overcome, as a matter of law, by proof which tended to show that the defendant was not in fact negligent, unless it was sufficient to prove that the damage was due proximately and exclusively to the inherent nature of the lettuce. In such a situation the issue of negligence and whether the presumption of negligence arising from the damaged condition of the lettuce had been re­butted, were questions for the jury."

Despite the recognition that the plaintiff's claim was based upon negligence, in no instruction given was this fundamental principle communicated to the jury. In fact, Instruction 3 expressly said that the defendant "must be held liable * * * for the damage to the goods without proof that it was occasioned by its fault * * *"

The defendant asked for the following instruction:

INSTRUCTION D.

"The Court instructs the jury that while as to most commodities delivered to it for transporta­tion, the carrier is liable as an insurer against all risks incident to the transportation, save such as result from ·an act of God, public authority or the inherent nature of the goods, yet as to perishable goods such as lettuce, which contains elements of destruction in itself, the carrier is not liable as an insurer as to its delivery in a good condition at

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destination but is only required to exercise reason­able care and diligence to protect the goods froni injury as well as to deliver them at destination with reasonable dispatch."

This instruction was refused by the trial Court and no other instru~tion was given which could be said to take its place. Certainly it was the tright of the defe:q.dant to have the jury told in an affirmative manner just what the extent and nature of its duties were as regards the good's, to supply them with a ·standard or test by Which to determine the issue of negligence. But the instructions given failed to furnish such standard or test, and the issue of negligence was not presented to the jury in T111tY aspect.

'The statement t>f th~s Court -therefore in its opinron "that the instructions granted, when read together, ·fairly and -suffciently presented to the jury the law applicable to the case" it is submitted, with great deference, is ttot substantiated by an examination of these instructions. If this statement is to stand, it means that a carrier in no case of this character is entitled to have the fundamental issue of negligence presented to the jury.

But if this Court meant to say that Instruction D was properly refused, it is quite evident that such ruling is · squarely in conflict with the implied approval which was given :an instruction in the recent case of Seaboard Air Li?U R. Co. v. J. E. Bowden & Co., 131 S. E .. 245.. '!'he instruction in question was as· follows:

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"The Court instructs the jury ~hat the carriers were not insurers of the strawberries in question; neither was it the duty of the carriers to use the highest degree of care in car-rying the straw­herries, but merely to use reasonable care under the circumstances, having reference to the perish­able character of the commodity being trans­ported."

This instruction it will be seen at once is strikingly similar to Instruction D which was refused in the instant case.

Whatever may be the conclusion of this Court as to the .sufficiency or insufficiency of the defendant's proof to establish its freedom from negligence, which after all was the vital issue in · the case, the jury was prohibited under the instructions from considering the question and defendant's counsel was in like manner effectively pro­hibited from arguing it before them.

IV.

THE NATURE OF THE DAMAGE .SHOWN DID NOT RAISE ANY PRESUMPTION OF NEGLIGENCE AGAINST THE DEFENDANT.

It is further submitted, with great respect, that t}lis Honorable Court also erred in its holding that in the in­stant case the nature of the damage shown established a prim.a facie case or raised any presumption of negligence

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against the defendant. We have discussed this question at such length however, in both the petition for writ of error and our reply brief, that ·we do not feel war-ranted in further burdening the Court with the subject, except to reiterate the distinguishing features of the cases of Southern R. Co. v. Finley, 127 Va. 132, and Southern R. Co. v. Russell, 133 Va. 292, which were therein pointed out.

It is therefore respectfully requested that a rehearing be granted in this case and that further consideration be given the questions raised herein.

And as in duty bound your petitioner will ever pray, &c.

THE CHESAPEAKE AND OHIO RAILWAY COM­PANY,

By Counsel.

LEAKE & SPICER, For the Petitioner.