Peninsula Produce Exchange v. American Railway Express Co.

Digges, J., delivered the opinion of the Court. This appeal is from a judgment for costs entered in the Circuit Court for Wicomico- County -on a verdict by the jury in favor of the appellee (defendant below). The suit was instituted by the appellant (plaintiff), the Peninsula Produce- Exchange, a corporation, against the appellee- (-defendant), -the American Railway Express Company, Incorporated, to recover damages alleged to- be occasioned by the negligence -of the defendant in its failure to transport without delay and keep adequately iced dpring the period of transportation a carload of strawberries consigned to Carr Brothers, -of Portland, Maine. The substantial facts, as disclosed by the record, are that some- time in the early part o-f June, 1920, -the appellant sold and ⁴³⁰ agreed to deliver to Carr Brothers, in Portland, Maine, a carload of strawberries containing 232 crates of 32 quarts each, at -and for the price of $8.25 per crate, plus; icing charges; that in compliance with the terms of said sale the appellant, on the afternoon of June 8th and the 'morning of June 9th, 1920, loaded into a refrigerator car of the appellee, No-.

P. R. R. 2793, at Queponco, Worcester County, Maryland, the quantity of strawberries so sold to- Carr Brothers; that after the loading was completed the car was fully iced, the doors sealed, and started on its way to destination at 1 P. M. on June 9th; that at the time of the shipment the appellant took from the appellee the usual express receipt designated “uniform express receipt,” which contained the date of shipment, destination, consignee, weight, value of cargo,- and shipper, with instruction “keep- fully iced to destination,” “which the company agrees to carry upon the terms- and conditions printed hereon to- which the shipper agrees, and as evidence thereof accepts and signs this receipt”; -that among the terms and conditions printed on the receipt there was the following, which is the only provision necessary to- refer to for the purposes of a decision in this case: “4. Unless caused in whole or in part by its own negligence or that of its agents, the company shall not be liable for loss, damage, or delay caused by * * * “ * * * (b) The nature of property, or defect or inherent vice therein.” That car P. R. R. 2793 was a type of refrigerator car generally known as “R-7,” its icing capacity being 10,500 pounds, having a bunker -at each end holding about 5,250 pounds each, the openings- to- the 'bunkers being located on the top- of the car and being closed by plugs, and it being through these openings or plugholes -that ice is supplied to-the bunkers. That the car in question was inspected by the witness Miller, an employee- of the appellee whose duty it was to- make such inspections; that the inspection o-f this ear took place by the witness at the point of origin and ⁴³¹ again, some time between tbe time of its departure and its arrival at Harrington, Delaware; that as a result of said inspection the witness found the drips to the blinkers were open so as to allow 'the water from the melting ice to' flow out, and the car iced to its full capacity. That it arrived at Springfield, Massachusetts, on June 10th at 5.30 P. M., where it was then examined and the ice bunkers found to be about three-fourths full, at which time 2,500 pounds additional ice was put in the bunkers; that -after icing it was taken out of the yard at Springfield about 8 P. M. and attached to- a train which left Springfield at 2.30 A. M. on June 11th.

That it -arrived at Portland, Maine, at 12.50 P. M., June 11th, 1920, -and was there examined as to' the condition of the bunkers immediately upon its arrival, and they were found to- be -two-thirds full of ice; that the interior of the car was found to be dry; that the drips were not inspected at that time, as the witness saw nothing wrong with the refrigeration of the car. That this car might have been re-iced at Nerw Haven, but this w:as not done for the reason that 'the car while at New Haven was on a track where there were overhead live wires, and there was no opportunity to examine the ice bunkers from the roof of the car; that while at New Haven ice water was flowing from 'the drips, indicating that there was ice in the car. That according to appellee’s witness the condition of the berries, upon arrival of the car at Portland, was shrunken and mouldy. That a member of the firm of Carr Brothers was present upon the arrival of the car in Portland; that on June 11, the day of the arrival, the following -telegram was sent to the appellant: “Portland, Maine, June 11, 1920. “Peninsula Produce Exchange, Pocomoke City, Md. “Penn ear two seven nine three arrived in Portland in terrible condition will sell it to the best of our ability we never saw a ear in such a condition before completely covered with white mould we are wiring Sam Shallow to send us inspector to see condition of car.

Carr Bros.” ⁴³² That on June 22nd, 1920, Carr Brothers, by Prank J. H. Carr, wrote the following letter to the appellant: “Portland, Maine, June 22, 1920. “Peninsula Produce Exchange, “Pocomoke City, Md. “Gentlemen: “We are enclosing our check for $1206.90 for 232 crt. of berries in Oar P. R. R. No. 2793. We wired you at the time of the condition of the berries and what we would do with them. Your letter of the 19th allowing a discount of $100 we will not accept. We have no claim in the American Express Co. as the car arrived on time and the bunkers had sufficient supply of ice, but the berries were waterlogged and caked in the baskets.

We took every order we had out of town and shipped them express at nine o’clock at night with the hope that they would arrive in fair condition and that the discounts would not be too severe. We are still getting our discounts; they are deducting from one-half to one-third of the bill which we are standing, but it has stopped our berry business until our natives arrive, as we do not relish making any further enemies than we now have with our trade, although we felt in this case that we would have to pass the stick along. We had about one hundred crates in this car that we couldn’t get a bid on from the peddlers at $1.00 a crate. It was a chance of taking them to the dump until we finally had one Charles Blumenthal take them and get what he could for them.

He returned us $20.00 for the lot. If you want a straight itemized account of every single sale I will forward it to you. “Very truly yours, “Carr Bros. Co., “Prank J. H. Carr.” The evidence further shows that this car, upon its arrival in Portland, was attached to' train 87, which was due to arrive at 12.05 P. M. and which did arrive on June 11th at 12.50 P. M. # That cars of perishable foodstuffs! shipped ⁴³³ from the vicinity of Queponeo were frequently consigned to Portland, Maine, and when the time of departure was in the afternoon of any day the usual and ordinary running time for this class of produce by express would cause them to 'be received in Portland on train, 87, which was due to arrive at 12.05 P. M. on the second day after their departure. The original declaration filed in this case wag demurred to, the demurrer sustained with leave to amend, and was amended by filing the declaration upon which the case was heard and decided.

During the progress of the trial eleven exceptions were taken to the rulings of the court on the evidence, and the twelfth to the ruling on the prayers. The plaintiff offered -three prayers, all of which were granted by the court; and the defendant offered eighteen, all of which wei'e rejected except the fourth and twelfth, and the appellant’s twelfth -exception is directed to an alleged error of the court in granting 'the- fourth and twelfth prayers of the defendant. The first qxxestioix raised by the appellant is as to the cox-rectness of the court’s ruling in sustaining the demurrer to the original declaration. The docket eixtries as -set forth ixx the record. show that on August 12th, 1922, the plaintiff filed its -original deelaratioix; that on August 14th the defendant demurred thereto-, and on October 9 th the demurrer was sustained with leave to file narr. by next rule-day; De^ cember 4th, 1922, amended naor. filed.

The appellant’s contention is that the action of the lower court in sustaining the demurrer to the origixxal narr. is open to review in this court, while the appellee dexxies -the correctness of this contention. This question must, be determined by ascertaining whether or not the second declaration, designated as “amended narr./1 i-s a pleading de novo or is an additional co-unt or counts to- the oxfiginal declaration. In the case- of Baltimore v. Maryland Pavement Co., 130 Md. 454 , a-demurrer to- the declaration was sustained. Thereafter the plaintiff filed axx amended declaration, which was designated in the record “amended declaration, additional co-unt”; and we held in ⁴³⁴ that case that it was not an entirely new declaration, but simply an additional count to the original declaration; the Court, speaking through Judge Thomas, saying: “In the case at bar the amendment made 'by .the plaintiff was filed as an ‘additional count’ to the original declaration.

It was not filed in the place of, but as a part of and as an addition to the original narr. An amendment by the filing of an additional count cannot be treated as pleading d& novo, for in order to be an additional count it must of necessity be a part of the previous pleading and must 'be given the same effect as if it had been incorporated in a declaration containing both counts.” The Court distinguished that case from the case of Ellinger v. Baltimore City, 90 Md. 696 , wherein it was said: “The amendment by way of the-‘amended declaration’ was pleading de novo, which withdraws from the case the pleading's for which the new pleading is substituted, according to repeated decisions of this Court. * * * Erom what is disclosed by the record the plaintiffs must be held to have abandoned their case as made by the original narr., and to have waived their right of appeal, or rather not to have put themselves in a position to appeal from the adverse ruling of the court upon the demurrer thereto-. They did not submit to judgment upon the demurrer, nor did they simply amend the original narr. as to the matter which the court had found obnoxious to the demurrer, nor did they attempt to incorporate new matter into1 the original pleading by way of adding additional counts thereto1; but proceeded upon leave of the court which accompanied its ruling, -here in question, toi file an entirely new declaration complete in itself.” In the case now under consideration it is abundantly evident .that the amended declaration is complete in itself and is a substitute for the original declaration, to which, the demurrer has been sustained; the practical difference between the two -being that in the first declaration the entire cause of action was contained in one count, while in the second and substituted declaration there are three counts. There is nothing in the record to indicate, either from the designation given ⁴³⁵ the second declaration or the language used therein, that it was intended to he or was an amendment, by way of additional counts, to the original declaration.

It contained the usual formal commencement and ending -and was complete within itself. We therefore hold, under the authority of the case of Ellinger v. Baltimore, supra, that the second declaration was pleading de novo and had the effect of withdrawing the previous declaration, for which it was substituted, from further consideration in the case. Therefore the ruling of the lower court -in sustaining the demurrer to the original declaration is not now -open -to review in this Court. See also 2 Poe, Pl. & Pr., sec. 189; Mitchell v. Williamson, 9 Gill, 77 ; Lake v. Thomas, 84 Md. 622 ; Medairy v. McAllister, 91 Md. 490. ■Considering now the twelfth exception, which requires a review of the rulings of the lower court on the prayers, we find that .the plaintiff below (appellant here) offered three prayers, all of which were granted, and in addition thereto the fourth and twelfth prayers of the defendant were granted and the other sixteen of the defendant’s prayers were either withdrawn or rejected; so that under this exception we are only called upon to consider the correctness of the court in its ruling upon the defendant’s fourth and twelfth prayers, which were granted.

The fourth prayer of the defendant was as follows: “The jury are instructed that there is no- legally sufficient evidence in this case that the car of strawberries mentioned in the evidence was negligently delayed in transit by the defendant, and the plaintiff is therefore not entitled to recover under the first and third counts of its declaration in this case.” The effect of the court’s action on this prayer was to instruct the jury that there was no legally sufficient evidence of negligent' delay on the part of the defendant causing damage to the plaintiff, and therefore the plaintiff could not recover under the allegations contained in the first and third counts of the declaration. The declaration, as 'before stated, contained three counts, the first and third alleging that damage resulted to-the strawberries by reason of the defendant’s failure to use ⁴³⁶ due and reasonable diligence in carrying forward the shipment to its point of destination, and that by reason of the defendant’s negligence in that respect there was a large and material shrinkage in the value of the strawberries by reason of a substantial decline in their market value or price, and by deiterioratiion in the quality of the strawberries, which resulted in substantial loss to the plaintiff. The second count alleged that the strawberries decayed and deteriorated in quality by reason of the defendant’s failure to- provide sufficient quantities of ice for the refrigeration of the car in which they were transported, and that by reason of said decay and deterioration in quality due to defendant’s negligence in not providing sufficient ice, .there was a large and material shrinkage in the value of the strawberries, from which the plaintiff suffered great loss and damage. The contract, as represented by the express receipt, provided that the car should be kept fully iced.

It was the duty of the defendant to transport the strawberries from Queponco, Maryland, to Portland, Maine, wtih reasonable dispatch, and to- protect them from deterioration by keeping the car fully iced. The evidence shows that the usual and ordinary running time from the point of departure to' the point of delivery.was about forty-eight hours; the evidence on that point being that if a car left Queponco on Monday evening, in the usual and ordinary course it would 'arrive at Portland, Maine, on Wednesday following-on train 87, due there at 12.05 P. M. In tire present case the ear containing the strawberries left Queponco at 1 P. M. Wednesday, June 9th, 1920, and arrived at Portland, Maine, the point of destination, at 12.50 P. M., Friday, June 11; the time consumed in the transportation being approximately forty-eight hours. There is m> dispute as to the time of departure and arrival at destination; this being shown by the plaintiff’s witnesses as well as those of the defendant. The witness Frank J. H. Carr, a member of the firm to' whom the strawberries were consigned, under date of June 22nd, 1920, writing to the plaintiff, stated: “We have no claim in the American Express Company, as the car arrived on ⁴³⁷ time and the bunkers had sufficient supply of ice, but the berries were waterlogged and caked in the baskets.” We have carefully examined the record for evidence of delay, and while there is testimony to the effect that the car containing the strawberries reached .Springfield, an intermediate point between Queponco and Portland, at 5.30 P. JVC. on June 10th, where it was re-áeed, 'and that after being rei-ieed, which was completed at 8 P. PI., it did not leave Springfield until 2.30 A. PL, June 11th; nevertheless, the testimony conclusively shows that the train leaving Springfield at 2.30 A' PL was the first one to which this car could have been attached after being reúeed, and there is a, total lade of evidence to. show that from 5.30 to 8 P. PI. was an unusual or extraordinary length of time to. be consumed in re-icing Taking the above in connection with the undisputed fact that ,the usual and ordinary running time for shipments of this character from Queponclo to Portland is forty-eight hours, and that this car arrived at Portland within forty-eight hours after its departure from Queponco-; or, as was said in B. & O. R. R. Co. v. Whitehall, 104 Md. 310 : “the carrier being bound to deliver in a reasonable time, there could be no better standard for determining wbat was a reasonable time than a comparison of the ordinary time taken with that actually taken on that occasion”; we think the lower court was correct in its instruction to the jury that there was no- evidence legally sufficient to show delay in transportation on the part of the defendant.

In addition, it is a significant fact that the plaintiff did not request any instruction as to. delay by the defendant in transportation, which it would almost certainly have done if 'there had been evidence which in the opinion of the plaintiff was; sufficient to1 entitle it to. such instruction. The theory upon which the plaintiff relies is that the defendant had negligently failed to' keep the car in which the strawberries were transported adequately iced, which the defendant was hound to1 do, both under the law and his contract as represented by the express receipt; that this neglect of duty on the part of the defendant was the cause of the ⁴³⁸ deterioration and damaged condition of the strawberries when received at the point of destination; that if the evidence shows that the strawberries were in good condition when put in the oar at Queponco- and were received in a decayed and damaged condition at Portland, the presumption is that such condition was caused by the negligence of the defendant in failing to- supply adequate ice for refrigeration during the period of transportation. The defendant’s theory, on the other hand, is that although the strawberries may have been in good condition at the time of loading at Queponco and in a damaged condition when received at Portland, this damaged condition was caused by the nature of the property or defect or inherent vice therein, and was not due to any negligence on its part or failure to perform the duty placed upon it to keep' the car fully iced. The prayers of the plaintiff are not in the record, but by agreement, as stated in the brief, they are set out in the brief of the appellee; and a reading of these prayers will show that the theory of the plaintiff was fully and fairly submitted for the consideration of the jury.

The plaintiff’s first and second prayers, we think, correctly stated the law and defined the duty of the defendant under, the plaintiff’s theory of the case, and submitted the question at issue to' the jury in as favorable a light as it was possible for .the plaintiff to have. Phila., B. & W. R. R. v. Diffendal, 109 Md. 494 ; Orem Fruit Co. v. N. C. Rwy. Co., 106 Md. 1 ; New York, P. & N. R. R. v. Produce Exchange, 122 Md. 229 . The defendant’s twelfth prayer instructs the jury that the defendant, under its contract with the plaintiff, as shown by the bill of lading, did not guarantee or insure that the said strawberries of the plaintiff