Di Giorgio Importing & Steamship Co. v. Pennsylvania Railroad Co.

⁶⁹⁵ Pearce, J., delivered the opinion of Ihe Court. This is an action brought by the appellant, the Di Giorgio Importing and Steamship Company, a body corporate, against the appellee, the Pennsylvania Railroad Company, a body corporate, for failure to furnish cars for shipment of perishable goods over the lines of the appellee. The appellant was in June, 1903, and still is, engaged in the business of importing into Baltimore tropical fruits, principally bananas, from Jamaica and Cuba. The declaration sets forth that the plaintiff being in possession on June 27th, 1903, of one or more cargoes of bananas imported by it, and being desirous of shipping the same to its customers at various places in the United States, did in accordance with the usual custom, make request upon the said defendant for cars for the shipment of said bananas; that the defendant received and accepted said request, and that the plaintiff relying upon said acceptance, contracted to ship said bananas to its customers at various points; but that defendant failed to furnish said cars, whereby the plaintiff was unable to ship the said bananas, and was obliged to leave them a long time upon the steamers in which they were imported, and that a large part of the same in consequence decayed and were lost to the plaintiff.

The evidence showed that it had been for a number of years, and on June 27th, 1903, still was, the invariable custom of these fruit steamers to dock and discharge their cargoes at Bowly’s Wharf in Baltimore; that a portion of each cargo was sold from the ship’s wharf side, but that the greater part was loaded from the other side of the steamship into specially constructed ventilated cars brought upon floats to the steamer’s side by the appellee and by the Baltimore and Ohio Railroad, the cars of the former being then towed to Canton for shipment over the appellee’s lines, and those of the latter to Locust Point for shipment over its lines. It is necssary for the preservation of this fruit and its delivery in marketable condition at distant points, that the utmost expedition should be used in hot weather in transferring it from the steamship to the ventilating cars, and in transporting it, when loaded, to its destina ⁶⁹⁶ tion. The steamships upon which it is imported are specially-constructed for ventilation, and this method of construction, while the ships are in motion, is effective in retarding ripening and preventing decay, but when the steamers are moored these processes are very rapid if the fruit is not promptly transshipped. This is recognized as fully by the railroad carriers as' by the importers, and in consequence, special promptness is the rule of the railroad companies in furnishing cars for this purpose, as well as in establishing and operating fast freight trains.

Henry Brown, in June, 1903, was superintending the loading of bananas on cars at Bowly’s Wharf for the Di Giorgio Importing and Steamship Company, and in explaining how the necessary cars were obtained for shipment, testified that the Steamship Company furnished the Pennsylvania and the Baltimore and Ohio Railroads with requisitions each week for the number of cars which they would need for the following week, and that it was the custom to give those requisitions on Friday of one weék for the succeeding week, and that sometime in 1903, the Pennsylvania Railroad furnished a form of requisition, which the plaintiff filled out “giving the names of the steamers and the time when we wanted the cars, and stating the number of cars we wanted for the following week,” and that these requisitions were sometimes sent through the mail and sometimes carried in person. There was then introduced in evidence the requisition made by the plaintiff on Friday, June 26th, 1903, for the succeeding week, which is herein transcribed in full, as follows: ⁶⁹⁷ Baltimore, June 26, 1903. Received from the Di Giorgio Imp. & S. S. Co. their requisition for car floats, numbered as above. Requisition received at.........a. m. 2.........p. m.

Wallace Malcolm, Freight Solicitor. It being shown by this witness that the date of the requisition, the day and hour when the floats were wanted, the names of the ships to arrive, and the number of cars wanted, the time the requisition was sent out, and the signature, H. Brown, were all in his handwriting, and that the date of its receipt and the signature of the Freight Solicitor was in the handwriting of Wallace Malcolm who then represented the defendant in that capacity. He further explained this requisition by saying: “Saturday, June 27th, what I mean by that, I give them the ⁶⁹⁸ date on which I want the first float, and the other floats are to be subject to call when needed as to the ai'rival of the steamer. This requisition was to cover the entire ensuing week.” The steamers Bodo and America arrived on June 29th and 30th, and for these, sufficient cars were furnished in proper time.

The steamer Di Giorgio arrived at Bowly’s Wharf, July 1st, at 6 A. M.,and the Snyg the same afternoon between 2 and 3 o’clock, and they were ready to unload the Di Giorgio within half an hour later. She had from 28,000 to 29,000 bunches and it would require from 10 to 12 hours to unload a cargo of that size. Both these cargoes were in good condition, that of the Snyg being a little riper, and the thermometer at 3 P. M. that day stood at 93. They loaded promptly all the cars the defendant had furnished, but these were not enough, and the fruit that was delayed in unloading for want of cars rotted in part, and the rest ripened so rapidly they had to be sold at a loss.

From 35 to 40 cars would have been required for the 29.000 bunches of the Di Giorgio, and about 20 cars for the 15.000 or 16,000 bunches of the Snyg, but some of these were to be shipped over the B. & O. R. R. about 15 car loads. The. record shows that on the morning of July 1st defendant had' nine cars at Bowly’s Wharf which were loaded from the Di Giorgio, and that during that day and on the following morning the defendant furnished 31 cars which were loaded from these two steamers. It also appeared that whenever one of these fruit steamers sailed from Jamaica or Cuba, plaintiff was informed by cable of the time of sailing, and amount of cargo, that the run is usually made in from four to six days, and that plaintiffs were also advised when their steamers passed Cape Henry, when they passed Cove Point coming up the bay, and when they arrived at Quarantine. The record shows that the Di Giorgio and the Snyg were reported when they'passed in the Capes, but does not show that they were reported when passing Cove Point.

Joseph Di Giorgio testified that the Di Giorgio arrived at Quarantine about half-past three o’clock in the morning of July 1st; that they make arrangements with the doctor at Quarantine so that he can ⁶⁹⁹ examine the papers and pass the ship without delay, so that they can commence working on the s-hip at midnight or any hour she arrives, but there is no evidence in the record that any notice was given by the plaintiff, or any one in his behalf, to the defendant, that either of these vessels had been reported at the Capes or at Quarantine. All that the record discloses is that about ten o’clock, on the morning of July xst, after the arrival of the Di Giorgio, a demand was made for cars which were not furnished until late in the day and on the following morning, but this demand is not shown to have included cars for the Snyg. The earliest demand for cars for this vessel was made, so far as the record discloses, in Mr. Di Giorgio’s letter written at 1.30 P. M. July 1st, in which he notifies defendant it will be held liable for damages, and also says “the Snyg will be due in about ten minutes, and we shall hold you alike responsible for this fruit.” The plaintiff admitted that on the following morning they had all the cars they needed, but said these were furnished too late to avoid the loss that they sustained. Joseph Di Giorgio said that the railroad company was as well posted about the movements of the ships as plaintiff was; that the telegram went to the Chamber of Commerce, and the railroads made it their business to know every steamer that passed Cape Henry and where it was consigned, because they are after business.

He also testified that he saw Malcolm, the freight solicitor of defendant, about 11 A. M. July 1st, and that Malcolm then knew the Snyg was expected about 2 P. M. No notice was given by defendant of any inability to furnish the cars for the requisition of June 27th. We have condensed in the foregoing statement of facts the substance of all the evidence given in the case. There are but two exceptions in the record, one to the exclusion of testimony, and one to the ruling upon the only prayer offered. After the requisition which has been mentioned, was offered in evidence, the witness Brown was asked if he made any subsequent requisition about that time; and he said he supposed he did as it was usual to send them every week, whereupon ⁷⁰⁰ the following requisition, without identification or proof of any sort, was offered in evidence, and upon defendant’s objection was excluded, and to this action the plaintiff took the first exception.

Baltimore, July 3rd, 1903. Received from the Di Giorgio Imp. & S. S. Co. their requisition for car floats, numbered as above. Requisition received at 9 a. m...............p. m. Wallace Malcolm, Freight Solicitor.

N. B.—Just at present we have no cars on hand but hope to have some by the time your vessel arrives. W. M. This paper did not prove itself, and without the requisite preliminary proof, could not properly have-been admitted, but apart from this consideration we are unable to perceive how it could bé regarded as relevant in an action founded upon negligence alleged to consist in the failure to supply cars on demand, upon another and distinct requisition of the week preceding, and for the cargoes of other steamers than that named in the requisition offered. There was no error in its exclusion. ⁷⁰¹ At the close of the plaintiff’s case the defendant offered the following prayer: “That there is no legally sufficient evidence of any binding contract by which the defendant was to furnish any special number of cars of the kind mentioned in evidence, and place them alongside of the steamers mentioned in this case, at Bowly’s Wharf, for the purpose of loading therein the bananas brought by said vessels, within any specified time. “And inasmuch as there is no evidence that the defendant failed in any duty imposed on it by its calling as a common carrier, the plaintiff is not entitled to recover in this action, under the