Messrs. Homer T. Dick, of Chicago, Ill., and Lindorf O. Whitnel, of East St. Louis, Ill., for plaintiff in error.[ Chicago & E I R Co v. Collins Produce Co 249 U.S. 186 (1919) ]
[249 U.S. 186, 188] Messrs. Charles Wham and Fred L. Wham, both of Centralia, Ill., for defendant in error.
Mr. Justice CLARKE delivered the opinion of the Court.
On March 21, 1913, the plaintiff in error, the initial carrier, accepted a carload of live poultry from the de fendant [249 U.S. 186, 190] in error, the shipper, for transportation from Cypress, Illinois, to Newark, New Jersey, and issued the customary bill of lading, containing the provision that the carrier should not be liable for any loss or damage to the property 'caused by the act of God ... or the authority of law.'
In the progress of transportation the car arrived at Dayton, Ohio, on the morning of March 25th, and was there delayed by a flood caused by rains so unprecedented that on that date martial law was declared applicable to Dayton and the territory in which the car was held. The flood waters overflowed the rails on which the car stood, but did not reach the body of the car so as to affect the health of the poultry and access to and from it was readily maintained by the caretaker.
On March 31st the state military authorities took possession of the car and distributed its contents to persons rendered destitute by the flood.
Suit against the carrier, based on the bill of lading, commenced in a state court, was removed to the appropriate District Court of the United States.
On the trial of the case the shipper introduced evidence tending to prove that the confiscation was due to the solicitation of representatives of the carrier and to their false representation that the fowls were dying from lack of food and attention and had been or were about to be abandoned by the caretaker, but the railroad company denied this and introduced evidence tending to prove that there was no such solicitation or false representation and that the confiscation was rendered necessary by the exigencies of the situation and by the necessity for supplying food to the people rendered homeless by the flood.
The trial court charged the jury:
That it was the duty of the carrier to transport the property to destination, if it could do so; that it could not overcome the flood or the action of the military authori ties [249 U.S. 186, 191] and that if the latter acted of their own volition the shipper could not recover; but that if the military authorities seized the consignment solely upon and by reason of the invitation of the railroad company, and if, but for this confiscation, the property or any part of it, in the exercise of ordinary care, could have been transported to its destination, then the defendant, the carrier, would be liable for the value of such part of it as the jury might find from the evidence could have reached its destination, to be determined by the invoice price at the point of shipment, less any deterioration caused by the delay solely incident to the flood.
The verdict was for the shipper and we are asked to review the judgment of the Circuit Court of Appeals affirming the judgment of the District Court entered upon that verdict. 235 Fed. 857, 149 C. C. A. 169.
The carrier argues that three errors each requiring reversal of the judgment appear in the record.
The first claim is that the court refused to rule, that by its terms, the Carmack Amendment (Act June 29, 1906, chap. 3591, sec. 7, pars. 11, 12, 34 Stat. 595 [Comp. St. 8604a, 8604aa]) casts upon the shipper the burden of proving affirmatively that the loss which occurred on a connecting line was 'caused by' the connecting carrier. But, assuming that the question is presented by the record, which is doubtful, Galveston, Harrisburg & San Antonio Ry. Co. v. Wallace, 223 U.S. 481, 491 , 32 S. Sup. Ct. 205, rules that, under the act as construed in Atlantic Coast Line R. R. Co. v. Riverside Mills, 219 U.S. 186, 205 , 206 S., 31 Sup. Ct. 164, 31 L. R. A. (N. S.) 7, in such a case as we have here the liability of the initial carrier is as if the shipment had been between stations in different states, but both upon its own line, and this renders the contention untenable. Adams Express Co. v. Croninger, 226 U.S. 491 , 33 Sup. Ct. 148, 44 L. R. A. (N. S.) 257, does not conflict with this conclusion, Cincinnati, New Orleans & Texas Pacific Railway Co. v. Rankin, 241 U.S. 319, 326 , 36 S. Sup. Ct. 555, L. R. A. 1917A, 265.
The second claim is that error was committed in the ad [249 U.S. 186, 192] mission of testimony of military officers that the confiscation of the property resulted from communications received by them by postal card and telephone from the agents and officials of the railway company respecting the condition of the poultry and that the caretaker had abandoned it, without evidence being required to identify the senders of such messages as officers or agents of the company. But this evidence, while taken in the form of depositions by the shipper, was introduced by the carrier. One who asks a court and jury to believe evidence which he introduces will not be heard to claim that, for technical reasons, it was not admissible.
There remains only the contention that substantial error was committed by the Circuit Court of Appeals in approving as sound law the charge to the jury that if the military authorities seized the consignment of poultry solely upon and by reason of the invitation of the railroad company, and that if but for this confiscation the property, or any part of it, in the exercise of ordinary care, could have been transported to its destination, then the carrier would be liable, etc.
The shipment was not lost by the 'act of God,' and the defense of the carrier on the facts was narrowed to the claim that it was prevented from performing its contract 'by the authority of law'-by the appropriation by the military authorities.
The verdict approved by two courts will be accepted by this court as a conclusive finding in favor of the shipper upon the questions of fact involved.
The duties and liabilities of a common carrier have been so fully discussed by this court, notably in Railroad Co. v. Lockwood, 17 Wall. 357, and in Bank of Kentucky v. Adams Express Co., 93 U.S. 174 , that they need not be restated here.
The common-law principle making the common carrier an insurer is justified by the purpose to prevent negli gence [249 U.S. 186, 193] or collusion between dishonest carriers or their servants and thieves or others, to the prejudice of the shipper, who is, of necessity, so remote from his property, when in transit, that proof of such collusion or negligence when existing, would be difficult if not impossible. Coggs v. Bernard, 2 Lord Raymond, 909; Riley v. Horne, 5 Bing. 217. The obligation to transport and to deliver is so exceptional and absolute in character that the relation of the carrier to the shipper was characterized in Railroad Co. v. Lockwood, supra, as so partaking of a fiduciary character as to require the utmost fairness and good faith on its part in dealing with the shipper and in the discharge of its duties to him, and so lately as American Express Co. v. Mullins, 212 U.S. 311 , 29 Sup. Ct. 381, 15 Ann. Cas. 536, this court declared that if a carrier, by connivance or fraud, permitted a judgment to be rendered against it for property in its charge, such judgment could not be invoked as a bar to a suit by a shipper.
These decisions, a few from many, illustrate the character of the relation of trust and confidence which must be sustained between a common carrier and a shipper. It rests at bottom upon a commercial necessity and public policy which would be largely defeated if the carrier were permitted by false representations, or by representations, which, though not intentionally false, were not known to be true, to procure the appropriation by military or other authority of property in its custody, as the jury found was done in this case, and thereby defeat its obligation to carry and deliver.
These principles of law governing the relations between the carrier and the shipper, amply justified the charge of the trial court to the jury and the judgment of the Circuit Court of Appeals must be