'ARic. ] Mo. PAC. RATLRO.4:131 CO. 21. ALMA . CASH 'STORE). 823
MioiIi PA'OFId RAILROAD'COMPANY • V. : ALMA CASH .` /..,.. 4 ‘!". • • -) ..; ..• ■ •.• ' Opinio ;. n deliv"ered May 4, 19 . 25. .;. • L . (31t.fuuEus— KEtasul#,Es, QF NALUE ;QF, PR6PERTY DAMAGED.—A /1.11707 r;; vision, in a bill , of iading limiting the ,carrier's ,liabijity to ,fhe value of the property at the tiine and Place of ShipMent is in coU- ' with 'the 'Ciltritriin t s . XMendinent' id' the' Inierst'ati 'dOininei4 Ardt COnito.; St. .§' § 8604a)..' 2. CARRIERS—MEASURE OF DAMAGES T • O 'PE ' 4 RISHABLE FREIGIIT:=Til • ; measure , of damages to ,inferstate shipments of . perishable corn-modities is the difference between their : market value at the point , to' -which ihey were shiPPed at tile time and in the' cbndition in Which' theY'Shduld have atrived, and ' thbir markei value at 'tile time and in:the condition in Which they actually arrived; whether Abe darnaga resulted , froni delay. in furnishing or ,transporting the •car or from failum to refrigerate it: . 'Alppeol from-Crawford ei . rela Court; James. oeli-4.-any j udge ;• re , versed.,1• ' • 6 : • •! •■• • I.. -••••)! Th6masi BiPrjor larid VineenVM: IlfileS; for appelL lant.s.:.! '• ; • Strabird c6 `Stakbiid,lor apPellee,1 • ; ' This dppeal froink'judginent f or . $723.70 r'endeted -in ifaVor' of appelleeS . .againSt Appel= lAnt : oh , ihree, separate• N.T erdi : cts , in three Separate • thiits which Vere donsolidated and . tried 4Ogether ii the , couirtlif Cra f wford County.' z . The Suits *ere fer dainages tici 'Peaches on three int4state shipm6nts • froin Arlikus, to different Tiointsiii Iowa . ' ; ' • .` -• reVersal:of "the Judiment is Sought upOn thd*sOle ground that the trial court inStrubted the jury that apP rei-lee 'S darnage, if any; should be based upon the value a the frnit at the Pdint 'of Origh-i. :i• The alleged crioridOnS instruction given by the court' Oh the . theaSure 'of dainageS is,As fedlowst • -,•• Amount of any loss or damage' for whidlrany ca.trier is liable shAll be 'computed on the basis of the value of the property at the place and time of shipment under the bill of lading; including the freight charges, if paid." . • .
824 Mo. PAC. RAILROAD CO. V. ALMA CASH STORE. [168 The instruction requested by appellant and refused by the court relating to the amount of damages, applicable to the facts in the case, is as follows : "You are instructed that the measure of damages on this shipment is the difference in the market value of the car of peaches at the point to which it was shipped at the time and in the condition it should have arrived there and at the time and in the condition it actually arrived at the point of destination." As we understand the evidence in the case, the first car of peaches was sold on the track at Alma to -W. M. Hansen & Sim, of Dubuque, Iowa, for $1.85 per bushel, and were shipped to that concern by appellee at appel-lee's risk, but were damaged so badly in transit, because appellant failed to refrigerate and transport the car, that W. M. Hansen & Son refused to account to appellee on the basis of the contract price, but accounted therefor on. the basis of the amount realized for the peaches, less freight and other charges. •The second car of peaches was sold on the track at Alma to Hubbard-Lanning Company of Ames, Iowa, for $1.25 per bushel, which was also damaged so badly in-transit, because appellant failed to properly refrigerate and transport the car, that Huh-bardd,anning Company refused to account to appellee on the basis of the contract price, but accounted therefor on the basis of the amount realized from the sale of the peaches, les s . the freight and other 'charges. The third car was sold on order for $1.25 per bushel on the track at Alma, and shipped in the same way to the purchaser. in Cedar Rapids, Iowa, but were so badly damaged, on account of appellant's delay in furnishing a car at Alma in which to ship them, that said purchaser refused to account to appellee on the basis of the contract price, but accounted therefor on the basis of the amount realized from the sale of the peaches, less the freight and other charges. The bills of lading under which the several ears vere shipped contained the following condition :
ARK.] MO. PAC. RAILROAD CO. v. ALMA CASH STORE. 825 •". The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property at the place and time of shipment under this bill of lading, including the freight charges, if paid." •The court based its instruction as to the measure of damages applicable to the facts in the case upon the condition aforesaid contained in the several bills of lading. ' This provision in the bills of lading is an atteMpted limitation upon the liability of common carriers, and is contrary to the Cummins Amendment to the Interstate Commerce Act of March 4. 1915, 4 Fed. Stat. Ann., 2nd ed. 506. Chicago, Milwaukee & St. Paul Ry. Co. v. McCaull-Dinsmore Co., 253 U. S. 97. The correct rule as to the measure of damages in interstate shipments of perishable commodities caused through the negligence of .the common carrier is the difference in the market value of the commodity at the point to which it was shipped at the time and in the condition it should arrive there and at the time and in the condition it actually arrived at the point of destination. This rule was announced in the recent case of C. R. I. & Pac. R. Co. v. Walker, 147 Ark. 109. Any other rule would enable common carriers to make more favorable shipment contracts with some shippers than others, and thereby establish a system of rebates, and would enable vendors and vendees to secretly contract for a higher price than the market value of their commodities at points of designation, for the purpose of establishing the amount of damages to be recovered from the carrier in case of loss or injury caused through its negligence. It does not follow, however, that testimony as to the contract price at the place of origin would not be admissible . as evidence tending to show the market value of the commodity at the point of destination, for perishable comModities, *hen sold. at the point from which they are shipped, are usually contracted on the basis • of the market value of such commodities where they are to be consUmed.' The
826 [168 evidence of the Contract price; however; would not necessarily be conclusive of the market value of such- commodities at the point of destination. • .•, We think the rule thus announced is applicable.to the facts in the instant cases, whether the daniagq resulted. from a delay,in furnishdng cars on in,trarisit or whether it was due to , the failure to properly refrigerate the cars. • , . r 1: ; •• : ,On account of the error indicated the judgments. are reversed, ,and the cause, is remanded!for a new trial., „ )
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.