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from Chicago, Ill., to the Moore-Jones Brass & Metal Company in St. Louis, under a bill of lading issued by the Chicago & Duluth Transportation Company to the petitioner, dated at Chicago, December 6, 1909. This is admitted br the defendants. It is alleged that the car containing the copper was delivered by the Terininal Railroad Company of St. Louis to the defendant railroad
charges lawfully assessed on said car under the tariffs aforesaid, and covering four days next subsequent to the expiration of the forty-eight hours allowed as free time for unloading; that said demurrage charges accrued while said car was held by the Wabash Railroad Company on said track No. 25. That during all of the time said car was held by the Wabash Railroad Company on said track No. 25, the same was reasonably accessible to the consignee, Moore-Jones Brass & Metal Company, for unloading, but it had been the uniform custom of the said consignee to unload cars only when placed upon its industrial spur track.
The consignee, Moore-Jones Brass & Metal Company had a private industrial spur track to its plant upon which it received carload shipments consigned to it. That said switch track was just of sufficient length to accommodate two cars, and was occupied by loaded cars at the time the above car was received by the Wabash Railroad Company. That under an arrangement between the Wabash Railroad Company and the said consignee, then in effect, all cars received by the said railroad company consigned to said consimee were to be placed by the Wabash Railroad Company on said prirate industrial spur track of said consignee, in the order in which said cars were received by the Wabash Railroad for such placement. That on January 1, 1910, the said Wabash Railroad Company was holding on its tracks seren cars for said consignee, all of which had been received prior to the receipt of said car of copper ingots. That on January 2, 1910, the said Wabash Railroad Company was holding out for said consignee, under saine conditions, seven cars, and seven cars on January 3d, six cars on January 4th, nine cars on January 5th, nine cars on January 6th, eight cars on January ith, and fire cars on January Sth, all of which cars the Wabash Railroad Company bad been unable to place on consignee's private industrial spur track, on account of said track being filled with other cars. That said consignee had no means of clearing its switch track, but, after emptying a car had to wait until the Wabash Railroad Company removed the car from said spor track.
"The Wabash Railroad Company employed during the times stated two watchmen in the yard where the car in question was located. The territory assigned to such watchmen covered six city blocks, within which there were from 9 to 19 tracks, of a combined length of about 30,000 feet. That one of said watchmen examined said car and the seals thereon at about 5 o'clock p. m., of January 6, 1910, and found all seals intact. The car in question was actually placed on consignee's private industrial spur track on the morning of January 7, 1910, at 10:30 a. m., and the same was immediately examined by the receiving clerk of the consignee, who found there was no seal on the west side door. It was also examined by two other employés of consignee, who also found there was no seal on the west side door. The consignee thereunon notified a watchman of the Wabash Railroad Company, and also requested the office of the freight agent of the Wabash Railroad Company to send a man to check the contents of the car. Immediately upon the discovery that the west side door contained no seal, the consignee caused the car to be locked, and the car remained so locked until the next day, January 8, 1910. when an employé of the Wabash Company appeared and checked the contents. On such checking the car was found to contain 415 copper ingots, weighing 21,328 pounds, instead of 775 ingots, weighing 40,002 pounds.
"That the reasonable market value of the missing 18,764 pounds of copper ingots was the sum of $2,447.60.
“[Signed] Wells H. Blodgett,
“N, S. Brown,
"Attorneys for Wabash Railroad Co. "Jones, Hocker, Hawes & Angert,
"Attorneys for Intervener."
company about January 2, 1910, with the seals of the car intact; that thereafter, about January 7, 1910, the car was delivered by the defendant railroad company to the Moore-Jones Brass & Metal Company, but that at the time of the delivery the seal of the west side door of the car was missing, and the car contained only 415 ingots of copper, weighing 21,328 pounds, which was 18,674 pounds less than the car contained when it was delivered to the defendant railroad company. This allegation is disputed and denied by the defendants, who aver that the Terminal Railroad Company did not deliver the car until December 30, 1909, and that the delivery by the Wabash Railroad Company to the Moore-Jones Brass & Metal Company was made on the 2d of January, 1910, instead of the 7th of January. The defendants also dispute the averment as to the seals, and as to the loss of copper from the car. It is alleged and admitted that the petitioner lodged its claim with the defendant railroad company on account of its alleged loss about January 20, 1910, and thereafter made repeated demands upon the railroad company for the settlement of the claim. There are averments as to repeated efforts to adjust the claim between the parties, prior to the receivership and since; but these matters are not considered material by the undersigned, in view of the conclusions which he has reached upon the merits of the contro versy.
"Upon the facts submitted to me, which are altogether covered by stipulation herewith returned, I find that the defendant railroad company effected a complete delivery of the shipment to the consignee, Moore-Jones Brass & Metal Company, because of the provisions of the tariff of the Wabash Railroad Company, under which delivery must be considered to have been made when the car was tendered by the railroad company to the consignee. The car containing the copper was carried by the Wabash Railroad Company to its yard and placed on its track No. 24 on December 30, 1909, with seals intact. On January 1, 1910, the car was transferred to track No. 25 and the consignee was notified that the car was on the track for its unloading or disposition. This notice was given by reason of condition of tracks on which car was being held by the railroad company for the consignee.
"Finding, as I do, that the delivery of the car was made by the railroad company for the consignee, it is unnecessary to consider whether any liability was attached to the defendant railroad company as a warehouseman. I accordingly recommend that the intervening petition be dismissed.
"[Signed] Chester H. Krum, Special Master."
The court overruled intervener's exceptions to the findings and report of the master, and entered a decree dismissing its petition, and it prosecutes this appeal to reverse such decree.
The appellant assigns as error that under the facts stipulated the master and court erred in finding and holding :
 (1) That under the bill of lading and tariff schedules of the carriers, filed with the Interstate Commerce Commission and duly posted, the tender of the car containing the copper by the defendant railroad company to the consignee Moore-Jones Brass & Metal Com-pany on January 1, 1910, effected a delivery of the copper to the consignee and relieved the railroad company of any further liability as a common carrier for the copper,
The bill of lading and tariff schedules in unmistakable terms provide:
“Sec. 5. That property not removed by the party entitled to receive it, within forty-eight hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given may be kept in car, depot, or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage and to carrier's responsibility as warehouseman only, or may at the option of the carrier be removed to and stored in a public or licensed warehouse, at the cost of the owner and there held at the owner's risk and without liability
on the part of the carrier and subject to a lien for all freight and other lawful charges including a reasonable charge for storage.”
The car containing this copper was received by the Wabash Railroad Company in St. Louis from the Terminal Railroad Company December 30, 1909, and placed on one of its tracks (No. 24) in its yards, on January 1, 1910, and was transferred to track No. 25 in the same yard, and the consignee notified in writing that the car was there for its unloading or other disposition subject to a charge of $1 a day or fraction thereof for all time that it should be held beyond the free time allowed by the rules of the company for unloading. The tariff of the Wabash Company, then on file with the Interstate Commerce Commission and duly posted as required by law, provides :
"That when delivery of cars consigned or ordered to private industrial spur tracks cannot be made on account of the act, neglect, or inability of the consignee to receive them, delivery will be considered to have been made when the cars are tendered. The carrier's agent must give the consignee written notice of all cars it has been unable to deliver, because of the condition of the private track, or of other conditions attributable to consignee; this will be considered a constructive placement."
Such was the contract between the appellant, the consignee, and the Wabash Railroad Company; and the consignee paid to the Wabash Railroad Company $4 for demurrage charges on this car under such schedules, covering the 4 days next succeeding the 48-hour period allowing for unloading, which demurrage accrued while the car was held by the Wabash Company on its track No. 25.
The act to regulate commerce as amended to and including June 29, 1906, provides in effect (section 1) that “transportation," which the act regulates, shall include cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership, or of any contract express or implied for the use thereof and all services in connection with the receipt, delivery, elevation, transfer in transit, ventilation, or storage, and handling of property transported; and it shall be the duty of every carrier, subject to the provisions of the act, to provide and furnish such transportation upon reasonable request therefor, and to establish just and reasonable rates, and provide for reasonable compensation to those entitled thereto; also that all charges made for any service rendered or to be rendered in such transportation or in connection therewith, shall be just and reasonable. And section 6 requires that the carrier's schedules filed with the Commission shall be printed and posted, and shall contain the classification of freight in force, and also state separately all terminal charges, storage charges, and other charges which the Commission may require, all privileges or facilities granted or allowed, and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such rates, fares, and charges, or the value of the service rendered to the consignee. 34 Stat. c. 3591, pp. 584, 586; U. S. Compiled Stats. 1916, $$ 8563, 8569.
The bill of lading in this case, in accordance with the provisions of the act, provides that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein con
tained, among which is the express condition (as appears in the stipulated facts) that the responsibility of the Wabash Railroad Company shall be that of warehouseman only for the property, if not removed by the consignee from its tracks within the 48-hour period for unloading, after notice of the arrival of the car, in which the copper was shipped, in its yard at St. Louis. Under the recent decision of the Supreme Court in Southern Railway Co. v. Prescott, 240 U. S. 632, 36 Sup. Ct. 469, 60 L. Ed. 836, it must be held that the liability of the Wabash Railroad Company in this case, under the agreed facts, was that of warehouseman only.
[2,3] (2) The appellant next complains of the decree because it did not adjudge the Wabash Company liable (under the facts stipulated) as a warehouseman. This complaint might well be dismissed, for the reason that appellant seeks to recover from the railroad company upon the ground alone of its liability as a common carrier, and there is no claim or sufficient proof that it has incurred any liability as a warehouseman. True, the intervener's petition asks for such other and further relief as may be just; and the answer alleges that under the facts the liability of the Wabash Company, if any, is that of a warehouseman only. But that is not sufficient to enable the appellant to recover in the absence of proof by it of the negligence it charges against the railroad company whereby the copper was lost from the car. The appellant, however, maintains in argument that, having shown the loss of the copper from the car (or other grounds from which it might be inferred that it was stolen from the car), a prima facie case of negligence is shown against the defendant, and that the burden then shifts to it to show its freedom from negligence, and cases from certain of the state courts, including Missouri, are cited in support of this contention. But an equal or greater number of decisions from the courts of other states may be cited to the contrary. But this question is hardly open to debate in this court, for in the case of Southern Railway Co. v. Prescott, 240 U. S. 632, 36 Sup. Ct. 409, 60 L. Ed. 836, above, it is directly held that the rule of the Supreme Court of the United States itself is, under the act to regulate commerce, opposed to the contention of the appellant. In that case the same contention was made by the appellee as is made by the appellant here, and the Supreme Court said:
"Viewing the contract set forth in the bill of lading (in that case) as still in force, the measure of liability under it must also be regarded as a federal question. As it has often been said, the statutory provisions manifest the intent of Congress that the obligation of the carrier with respect to the services within the purview of the statute (the act to regulate commerce) shall be governed by uniform rule in the place of the diverse requirements of state legislation and decisions [citing many cases). And the question as to the responsibility under the bill of lading is none the less a federal one because it must be resolved by the application of general principles of the common law. * * * It was explicitly provided that in case the property was not removed within the specified time it should be kept subject to liability 'as warehouseman only. The railway company was therefore liable only in case of negligence. The plaintiff, asserting neglect, had the burden of establishing it. This burden did not shift. As it is the duty of the warehouseman to deliver upon proper demand, his failure to do so, without excuse, has been regarded as making a prima facie case of negligence. If, bowerer, it appears that the loss is due to fire, that fact in itself, in the absence of circumstances permitting the inference of lack of reasonable precautions, does not suffice to show neglect, and the plaintiff having the affirmative of the issue must go forward with the evidence [citing a number of cases). * * * It is undisputed that the loss was due to fire which destroyed the company's warehouse with its contents, including the property in question. The fire occurred in the early morning, when the depot and warehouse were closed. The cause of the fire did not appear, and there was nothing in the circumstances to indicate neglect on the part of the railway company. The trial court denied the motion [of the railway company] for a direction of a verdict and charged the jury that the burden of showing that there was no negligence is on the defendant. Applying the rule established by the state decisions, * * * the Supreme Court of the state overruled the defendant's objection and sustained the judgment. * * * It has been recognized by the state court, as was said in the Fleischman Case, supra (Fleischman 5. Southern R. Co., 76 S. C. 237, 56 S. E. 974, 9 L, R. A. (N. S.) 519), that the rule it applies is a 'somewhat exceptional rule' to which the court adheres notwithstanding the great number of opposing authorities in other jurisdictions.' * * For the reasons we have stated, we think that the ohligation of the railway company was not governed by the state law and that, in this view, the exceptions of the plaintiff in error were well taken."
The judgment was reversed. See Clark v. Barnwell et al., 12 How. 272, 13 L. Ed. 985; Railroad Co. v. Reeves, 10 Wall. 176, 19 L. Ed. 909; De Grau v. Wilson (C. C.) 22 Fed. 560, affirming (D. C.) 17 Fed. 698 (in admiralty); Strauss v. Wilson (D. C.) 17 Fed. 701 (in admiralty); Lamb v. Camden & Amboy, etc., Co., 46 N. Y. 271, 7 Am. Rep. 327; Denton v. Railway Co., 52 Iowa, 161, 2 N. W. 1093, 35 Am. Rep. 263; Yazoo & M. Valley R. Co. v. Hughes, 94 Miss. 242, 47 South. 662, 22 L. R. A. (N. S.) 975, and note.
There is no evidence that the car, or the seal upon the west door thereof, were insufficient or defective in any respect; and the inference that the seal was broken and the copper stolen from the car was not sufficient to warrant a finding that the copper was lost because of any neglect or want of ordinary care upon the part of the railroad company as warehouseman.
It follows that the decree of the District Court must be and is affirmed.
WICHITA MILL & ELEVATOR CO. v. LIBERAL ELEVATOR CO. (Circuit Court of Appeals, Eighth Circuit. May 10, 1917.)
No. 4776. 1 SALES 89_MODIFICATION OF CONTRACT BY NEW AGREEMENT.
A contract of sale of wheat for delivery during July was subject to a rule of a grain dealers' association requiring the seller, if unable to complete the contract, within the agreed limit to advise the buyer by mail, telephone, or telegraph, whereupon it should be the duty of the buyer to at once elect either to buy in, or cancel the deficit, or extend the contract to cover such deficit. On July 29th the seller advised the buyer that it would be prevented by a railroad embargo from shipping until August 2d, but would get the wheat out as soon as the railroads would receive it. On August 2d and 3d the buyer wired the seller, requesting that shippients be held up temporarily, and in a second wire that the sale be canceled. The seller in reply ignored or barely acknowledged
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