burton briel, incorporated, defendant in error

( ....

SOUTHERN RAILWAY COMPANY Plaintiff in Error,

v.

BURTON & BRIEL, INCORPORATED, Defendant in Error.

Record 339

FROM THE LAW AND EQUITY COURT OF THE CITY OF RICHMOND.

"The briefs shall be printed in type not less in size than small pica, and shall be nine inches in length and six inches in width, so as to conform in dimensions to the printed records along with which they are to be bound, in accordance with Act of Assembly, approved March 1, 1903; and the clerks of this court are directed not to receive or file a brief not conforming in all respects to the aforementioned requirements."

The foregoing is printed in small pica type for the information of counsel.

H. STEW ART JONES, Clerk.

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I:tf THE

Supreme Court of Appeals of Virginia AT RICHMOND.

SOUTHERN RAILWAY COMPANY. Plaintiff in Error,

v.

BURTON & BRIEL, INCORPORATED, Defendant in Error.

PETITION FOR WRIT OF ERROR AND SUPERSEDEAS.

To the Honorable Judges nf the R1.tprerne Court of Appeals of V ir,ginia:

Your petitioner, Southern Railway Company, a corporation, represents that it is aggrieved by a final judgment of the Law and Equity Court of the City of Richmond, Virginia, for $400.00 entered_ on the 2nd day of July, 1926, in ·favor of the plaintiff and against your petitioner in an action at law wherein Burton & Briel, Incorporated, a corporation, was plaintiff and your petitioner was defendant.

A transcript of the record is presented herewith, and the page referenc&s herein are to the pages of the transcript.

For brevity, the plaintiff in the trial court will be referred to herein as pl!liutiff and your petitioner as defendant.

STATE~IENT OF THE CASE.

The first trial of thi~ case- on June 17, 1926, resulted in a hung jury (R., pp. 8-9). The second trial, on July 1st and "2nd, 1926, resulted in a verdict for the plaintiff of $400.00, upon which judgm(Jnt was ·entered as aforesaid (R., p. 11 ). The transcript, of course, is of the second trial, from which

-1:b~ followin.g appears:

2 Supreme Court of Appeals of Virginia

On October. 4, 1923, MacDonald & Sons, ·of Watsonville, California, delivered to the Southern Pacific Company, a common carrier by rail, a carload of Newton Pippin apples, consisting of 840 boxes, to be transported over the lines of the Southern Pacific Company and its connecting carriers to itself at Richmond, Virginia, advise Burton & Briel, Incorporated. The· shipment was loaded and counted by the shipper, or, in rail:road parlance, was shipper's load and count (R., p. 30). The car was a ventilated car, and the bill of lading provided for standard ventilation (R., p. 21).

According to the testimony introduced on behalf of the plaintiff, the apples were of excellent quality and condition, hard and firm, and of good keeping quality, at the time they were loaded in the car at Watsonville, California (R., p. 15). According to the report of the Government inspector, the apples were ''practically free from defects affecting grade'' and were ''·from a green to yellowish green color and grade faiJcy" (R., p. 30).

This carload of apples, which, is stated, was delivered by the shipper to the Southern Pacific Company at Watsonville, Califor:qia, on October 4, 1923, was deli \Tered by the Frisco Railway to the defendant at Memphis, Tennessee, on October 15, 1923, at 2:10 o'clock P. M. Hence, the movement from '\\Tatsonville, California, to Memphis, Tennessee, covered a period of twelve days. The car left Memphis on the lines of the defendant in the first train after it was delivered to the defendant, and came through to R-ichmond, Virginia, over tl1e lines of tho defendant in about ten hours less than the schedule movement from Memphis to Richmond of freight of this character (Depositions of Tipton and Harper, R., pp. l24 to 130 and ~., pp. 164-5). The car arrived at Richmond on October 19, 1923, at 7:20 o'clock P.M., and was placed for unloading at the point where plaint.iff received its shipments on the following morning, October 20, 1923, at 7:00 o'clock. The plaintiff was notified of the arrival at 9:00 o'clock~- M. of the same day (R., pp. 128, 132) .' The car received standard ventilation from the time it was received by the defendant until after its placement for unloading by the plaintiff (R., pp. 126, 129-130).

l\'Ir. Burton, the President of the plaintiff, testified. he inspected the ghipment on October 20, 1923, the date it was placed for unloading, at 8:00 o'clock A. M. (R., p. 25). He admitted, howev~r, on cross-examination, that he had no independent recollection when he made the inspection, and that he testified in this particular only .from a report w~ch pur-

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Southern Railway Co. v. Burton & Briel, Inc. 3

ported to be his report of his inspection (R., p. 44) .. The report, of course, was not introduced in evidence, but he was examined as to the part of the report from which he stated he testified or refreshed his recollection, and .it made no reference io the date or hour of the inspection. The particular entry to wliich he referred read: • 'Date 10-20-23; hour 8 A. M. placed· for (un}loading" (R., p. 44}. None of the boxes of apples was unloaded at the time Mr. Burton claimed to have made his inspectjon, and in fact none was unloaded nn· til four days later, at the plant of the 'Richmond Cold Storage. Of the 840 boxes of apples, Mr. Burton testified he examined about twenty-five while they were in the car (R., p. 45). . ' .

On the other hand,· the defendant's witness, Barfoot, who at the time was its yard clerk, testified that Mr. Burton did not inspect the car until two days later, namely, on October 22,1923, when he and Mr. Burton made a joint inspection (R., pp. 134, 135). Barfoot's report on the car and the inspection appears in the Record, at p. 148. This witness also testified that the seals on the car had not been broken until-after the hour when Mr. Burton claims to have made the inspection, and that when he and Mr. Burton inspect~d the car on the morning of October 22nd they had to draw the nails in the door which had been placed in it following the robbery hereinafter mentioned (R., pp. 134, 135). Mr. Barfoot further stated that the seals on the car were intact at 4:00 o'clock on the afternoon of the day upon which Mr. Burton claims to have made the inspection at 8 :00 o'clock A. M. (R., pp. 141, 142).

Defendant's witness, Wooldridge, who examined the car between 9 :00 and 10 :00 o'clock on the morning of October 20th stated the seals on both doors were then intact, and that to prevent further robbery througl1 one of the ventilator doors he nailed up the solid door, which was the door Mr. Barfoot stated he and Mr. Burton opened two days later to make the inspection (R., pp. 161, 163).

During the night of October 19th, the contents, or a part thereof, of several boxes of apples were robbed through the ventilator doors nnd windows, which resulted in a loss of five boxes. Mr. Wooldridge 'vas a member of the plaintiff's special police force nnd he made his inspection of the car on the following morning, between 9 :00 and 10 :00 o'clock, when, as stated, he found the seals intact, and nailed up one of the solid doors to prevent further robbery. There were two


\tents in ..each end of the car, and the lower vent at each end was closed for protection against further robbery (R., p .. 146). Standard ventilation requited all of the vents to be open. After the robbery, only half of the vents were open, 1tamely, the top end vent in each end of the car and one side doorl but prior to that t~e all o~ the vents were open, ac-

. ctn'dlng to the uncontrad1cted testimony. The plaintiff did not unload the shipment on the team traek

-\Vhe:te it was placed, but permitted it to remain there from the, time it was notified of its placement on October 2oth at

-9tOO; o'clock A .. M. until late on October 22nd, when it directed the defet1dant to deliver the car to the C. & 0. Railway Company to be carried to the Richmond Cold Storage plant, and the car left the team track and was delivered to the C. & 0. by the defendant on the nigbt of October 22, 1923 (R., pp. 12~-129~ 148, 138). The car was unloaded at the Rich-: mond Cold Storage two days later, namely, on October 24, 1923 (R., p. 113).

The load had buckled in the center, resulting in damage ·2

to fourteen boxes. :M.r. Burton described the condition which he folind as a result of his inspection at p. 25 of the Record, tlR follows:

"Q. What w-as the ~ondition of" the apples in that carY •' A. Ifaving refreshed my memory from this paper, some

of the boxes were broken and robbed, and the apples seemed to be too ri11e for stot~a.ge ..

"·Q. What was the condition of the load in the cart ''A-. The load was shipped solid, and had buckled.''

And at p 38, the same witness said:

•"Q. I believe you said some had been robbed and some broken-how m:any were robbed and how many broken?

"A .. Ou~ papers there sho,v, 14, I think, I am not sure. "Q. 14 broken 7 "A .. 14 b:rolten -and 5 robbed, I .believe. n

The :plaitltifi had :a fltll inspection made of the car by the Morehead Inspection Bureau, a fruit inspection agency, when the C{_tr was unloaded on October 24, 1923, at the Richmond Cold Storage. This inspection was made by Mr. Hansen, of the Moreh~ad InApection Bureau, for the plaintiff, and 1\fr. Burton had the greatest -confidence in Mr. Hansen as a fruit inspe'ctor (R .. , pp. 58-59, 169). The report of this inspection

; app·ears in the Record, at p. 172.


As shown above, 5 boxes were lost through robbery and 14 boxes were broken and damage~ as a result of the buckling in the center. This left 821 boxes of the shipment. The plaintiff claimed the apples were shipped to Richmond for storage until the following spring (R., p. 38), and that as the remaining 821 boxes seemed too ripe for storage, it sold them at a loss of 75c a box.

The plaintiff also claimed that the slight buckling of the load in the center would bruise the other apples, and while

• Mr. Burton only inspected about 25 boxes at the door, where the buckling occurred, he stated in general terms that the fruit was bruised (R., p. 31).

However, the fruit inspector, Mr. Hansen, who made the detailed inspection of the shipment for the plaintiff, when it was unloaded at the warehouse, and who was introduced as a witness by the defendant, testified that his report showed when he made the inspection there was no damage to the lot of 821 boxes, and that there was no reason why they could not be stored. (R., p. 181.)

Counsel for the plaintiff, in _cross-examining Mr. Hansen·, endeavored to point out a distinction in the condition of the Rpples as shown in Mr. Hansen's report and their condition as shown in the Government inspection report at the time of shipment, but Mr. Hansen stated there was no difference in the 821 boxes as reflected by the two reports (R·., p. 194).

As a matter of fact, the 821 boxes were placed on storage as contemplated, and remained there until the spring of 1924, when they ~ere withdrawn from time to time (R., pp. 114, 115). Defendant's Exhibit No.1, at p. 116 of the Record, shows in the left-ha1iq column the dates in the year 1924 of the withdrawals, and the number of boxes withdrawn on each date. This exhibit shows that on April 11, 1924, 249 boxes were withdrawn from cold storage and loaded into C. & 0. car 81045. Mr. Hansen inspected these boxes when they were withdrawn, and stated that at that time, after having' been in storage from October until April, "the condition of the apples was all right • • * just as any other apples would come out in the spring, showing an occasional slight scald or spot rot," and that they were in good condition when he inspected them at that time (R., 197, 199-200).

This lot of apples which 'vas withdrawn from storage on April 11th, 1924, was shipped to New York and exported (R., pp. 62, 21llh), and this in the face of the plaintiff's claim that they appeared to be too ripe for storage on arrival at R.ichmond in October of the previous year.


Mr. Hansen also testified that the fact that half of the vents were closed during the two days the car remained on the ·team track before they were ordered to the C. & 0. for delivery to the cold storage would not affect the commodity under the prevailing temperatures at the time (R., pp. 182-183). .

It is a matter of common lmowledge, of course, that apples. have an inherent tendency to ripen, and this is pointed out by Mr. Hansen in his testimony at pp. 194-195. At p. 195, _ l1e stated apples would ripen in cold storage, although not as rapidly, of course, as they otherwise would.

The damage resulting from the robbery of five boxes and the injury to the fourteen boxes which buckled, after allowing for the salvage, was $39.25, and, as above stated, the plaintiff claimed a loss of 75c per box on the remaining 821 boxes. The real issue in the case was whether the defendant was liable for any damage with respect to these 821 boxes. As to tbem, the plaintiff contended they seemed too ripe for storage and were sold at a l9ss of 75c a box, ·although, as herei,nbefore pointed out, they 'vere actually put in storage for several months and tl1en exported. On the other hand, the defendant contended, first, that these 821 boxes were in good condition upon arrival, and in fact, when they were unloaded four days later at the Richmond Cold Storage, as shown by "the inspection at that time, and second, that, even if they had ripened some and turned a little yellowish, that condition resulted from the inherent tendency of apples to ripen, and not from any negligence on its part, and therefore it was not liable for the alleged damage to those boxes.

ln this posture of the case, the ·court, over the defendant's objection, gave, at the request of the· plaintiff, Instructions Nos. 4, 6 and 8, which appear in the R-ecord at pp. 215-216, and which for ready reference are here quoted:

"INSTRUCTION NO. 4.

The court instructs the ju_ry that if you believe from the evidence in this case that the apples in question were properly loaded and packed and placed in the car and delivered t.o the initial carrier in sound condition and were in turn delivered by the defendant to the plaintiff in a damaged condition, then the burden is upon the defendant to show that the ,damage did not accrue to the apples while in its hands, or if the damage did accrue to the apples while in its hands, it

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must further show the cause therefor; and unless the cause of the damage to th~ apples was the inherent nature of the goods, you must find your verdict for the plaintiff."

"INSTRUCTION NO. 6.

The court instructs the jury that if you believe from the evidence and the other instructions in this case that damage to the apples in question occurred on the road of the defendant, and might have been caused by one or more of several things, for one or more of. which the defendant is liable, and for one or more of which it is not, then you must find your verdict for the plaintiff; the court telling you that the bur-

. den of evidence is on the defendant to show from what cause the damage did arise, if it arose on its road, and the presumption is_ . .that it did occur on its road unless you believe from the evidence the defendant has proven by a ·preponderance of the evidence that it delivered them to the plaintiff in the con~ition in which it . received them.''

"INSTRUCTION NO. 8.

The court instructs the jury that if you believe from the evidence that the apples in question were delivered at Wat~onville, CaHfornia, to the Southern Pacific Railway Company in good condit~on, properly packed, loaded, and placed in the car and that the apples 'vere transported to Memphis, TenDP.ssee, and there delivered to the Southern Railway Company, ~nd that the Southern Railway Company transported the apples to Richmond, Virginia, and there offered them for delivery to Burton and Briel. Incorporated, in a damaged condition; there is a pri'ma facie presumption of law that the .damage accrued to the apples while they were in the hands of the Southern Railway Company, and the court further tells the jury that the burden of evidence is upon the said Southern Railway Company to overcome the presumption that said damage accrued to the apples while in its possession, and if you further believe from the evidence that the said Southern Railway Company has not Gustained this burden you must find your verdict for the plaintiff.''

The defendant objected to these instructions, on the gro~d that even if the plaintiff .made a pri1na· facie case of liahility on the defendant if it sho,ved delivery to the initial· carrier in good condition, and delivery at Richmond by the deiendant, the delivering carrier, in damaged condition, the burden of proof did not shift to the defendant when the plain-

8 Supreme Court of ·Appeals of Virginia

tiff made a prima facie case, but that when all the evidence was in, the burden of proof still rested upon the plaintiff t() establish a right to recover, and that, if the jury could not determine from all the evidence the cause of the alleged damage, they would have to find for the defendant instead of for the 11laintiff. The court overruled the objections to these instructions, and gave them as requested by the plaintiff.

ASSIGNMENTS OF ERROR.

The following errors are assigned:

1. The court erred in giving instructions Nos. 4, 6 and S, and each of them, at the request of the plaintiff over the objections of the defendant.

2. The court erred in overruling defendant's motion t() ·set aside the verdict of the jury, and in not setting aside the

. ·verdict of the jury, for misdirection of the jury ia said Instructions 4, 6 and 8, and each of them.

3. The court erred in overru~ing defendant's motion to set aside the verdict of the jury, and in not setting aside said verdict, on the ground that it was not supported by but was ~ontrary to the law and the evidence in the case.

ARGUMENT.

Instruction No. 4 told the jury that if they believed the apples were in goo9. condition when delivered to the initial carrier and in. damaged condition when delivered at Richmond, ''then the burden is upon the defendant to show. that the dann.age. did not accrue to the apples wh.ile in its hands; or if th~ damage did accrue to the apples 'While in its hands, it musi further show th~- cause therefor, and unless the cause of the damage to the apples 'Was the inherent nature· of the goods, ·yo~6 must find you.r verdict for th~ plaintiff."

Instruction No. 8 is substantially to the same effect, except that in the last clause the court used the phrase "burden of evidence'' instead of ''burden'' or ''burden of proof.'' By this instruction, the court told the· jury that if they believed the apples were in good condition 'vhen delivered to the initial carrier and in a damaged condition when they were delivered at Richmond to the consignee, there was a prima facie presumption of law that the damage occurred on defendant's

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lines, and ''that the burden of evidence is upon said South-ern. ROJilway Company to overcome the presumption that said da.m..ag.e accrued to the apples wh!ile in its possession)~ and if you. further believ-e front the evide1~ce that sOJid 8 outhern R.ailrway Oo'lnpany has not sustained this burden you must find. JJOUr v-erdict for the plaintiff.''

Instruction No. 6 told the jury that if they believed that damage to the apples occurred on defendant's line "and m.i_qht .have been cOAtsed by one o1· rnore of several things, tor .ane r0r mor.e (!)f which the defe-r~;dant is liable, amd fpr one or, more of wkich it is not, tJwn Y·OU must find your verdict for the plaintiff". This instruction further told the jury that the presumption was that the damage occurred on defendant's line ''unless you believe from. the evidence the ·defenda;nt has proven by a preponderance of the evidence that it delivered fh:e11n t-o the p~aintijf in the condition in which it received ·iJhem''.

The plaintiff requested these instructions, and the court gave them, on the theory that a carrier is an insurer of perishab·le p1·operly, that the plaintiff made a prim.a .facie case if. it showed delivery to ~the initial carrier in good condit~on and receipt from the defendant in bad condition, and that th(l burden of proof thereupon shifted to the defendant to •eX·ener.ate itself.

Carriers are Not Fnsurers of Perishable Property.

It is the ·general rule .that .a carrier is an insurer of inani.mate pr.operty intoosted to it for transportation, and that a plaintiff makes a prim,a facie case qu,oad the delivering carrier by showing delivery to the initial carrier in good condition :and xeceipt from it in a damaged condition. We need not, however, enter into a ·discussion of the question whether, in the case ·o:f inanimate property other than perishables, the 'burden of proof shifts to the defendant after the plaintiff has made a prim.a facie case, because that question is not involved in this action. This action involved a shipment of Jltl.Tishables. It is a 'veil-recognized exception to the general Tule, that a carrier is not an ·insurer of perishable property, that .as to such property it is 'Hable only for negligence, and that the ~burden ef proof is upon the plaintiff throughout the trial.

The following autl!orities unquestionably establish that a carr.ier .is not an insurer of perishable property :


4 Elliott on ~ailroads (3d Ed.), Sec. 2230, pp. 664-666.

''Against loss from decay due to the inherent character of the goods the carrier does not undertake to protect the owner, and, of course, as there is no duty in that regard, there can b~ no negligence, but if the want of proper care and diligence in handling the goods causes the loss there 'J'YUZY be negligence and consequent liability. So, upon the same principle, the carrier is not necessarily liable for injury from leakage, fermentation, eyaporation, or the like, where it is due to the inherent nature of the goods or to the conduct of the owner or Rhipper in preparing them for transportation.''

J.O Corpus Juris, Sec. 148, pp, 121, 122 :

"With respect to 1>erishable goods which themselves con~ tain the ele1nents of destruction governing their loss or detet·.Zoration, the carrim· is rwt a.n inS'Ure.r. • • •. The measllre of the carrier's duty is to exercise reasonable care ·and diligence to protect the goods from loss or injury while in its custody, and it is liable for only such deterioration as is attributable to its negligence.''

In the case of .Seaboard Air l.Jine Ry. Co. v. J. E. Bowden & Co., decided by this Court on January 14, 1926, and reported in 131 S. E., p. 245, this Court" recognized that a carrier is not an insurer of perishable property. In considering an instruction gjven in that case which the Railway Company contended told the jury that it was an insurer of perishable

. property, this Court, at p. 248, said :

''The criticism made of this instruction is that it tells the jury that the carrie1· was an insurer of the products slvipped~ We do not so construe the inst.ruction, and this view is fort-ified by the fact that the court, upon motion of the plaintiff i11. error, instructed the jury as follows:

'' 'The court instructs the jury that the carriers were not insurers of the strawberries in ques·tion; neither was it the dutJJ of the can~iers to use the highest degree of care in carryin_q the strawberries, b~tt merely to use reasonable cMe .under the circum.stanoes, having reference to the perishable character of the co'lwmodity being transported.' "

In .Atlantic Fruit Company v. ·Pennsylvania R. R. Oo.

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South~rn··Railway Co. v. Burton & Briel, Inc. 11

(Mel.), 130 A.tl. 63, i;he court, after reviewing cases on the question, at p. 65, said: ..

''The goods shipped in this case were perishable, and so, under the rule laid down in the Diffendal 'Case, supra1 the. defendant was not an insurer, but was only req'Utired to useJ -1-ea.sonable care and diligen,ce in troosporting them.''

In Cassone v. ):l. Y. N. H. & H. R. Co. (Conn.), 123 Atl. 280, the Connecticut court, citing a number of cases, includinp; AM!ms Express Co. v. Scott, 113 Va. ~' at p. 284, said:

''The common-law liability of a carrier as an insurer does not extend to certain classes of articles shipped. As to live . .stock, fruit, vegetables, or articles with an inherent vice, the tmplied obligation of the carrier as insurer does not extend. Coupland v. H.ousatonic R. Oo., 61 Conn. 539, 540, 23 Atl. 870, 15 L. R. A. 534; Evans v. Raalway, 111 Mass. 142, 15 A.m. Rep. 19; Hussey v. The Baragossa, Fed. Cas. Nd. 6; 949, 3 Woods, 380; 1 1-Ioore on Common Carriers, p. 31, Sec. 3 and note 26; 4 Elliott on ~ailroads (3d Ed.), Sec. 2276; .. Adam.~ Ex-. Co. v. Scott, Ann. Cas. 1913D, note on p~ge 974.

''In the note to ..Adam,s Ew. Co. v. Scott, swpra, the .annotator says that contracts 'limiting the liability of a carrier for injuries resulting to animals from their own natural propensities, ~ $ *are valid, although unnecessary, because under existing la-w the carrier is not liable to the shipper for 3njuries resulting to animals from their own propensities or inherent vice, unless such propensities are aroused by some negligent act of the carrier, which contributes to or is the proximate cause of the loss.''

In MeN eill and Scott Co. v. Great Northern R. R. Co., (Minn.), 194 N. W. 614, the Supreme Court of Minnesota, at p. 616, said:

"It is the general rule that a common carrier is an insurer that freight received for transportation will be delivered at destination undamaged; but there are exceptions to this rule. He is not an insurer that perishable freight, whiich tenn incltedes such commodities as fruits and ve,qetables, will be delivered at destincz,tion und.a;maged. His 'undertaking in tra;nsp.orting such co1nmodities is to exercise reasonable atnd ordinary care to preserve and deliver them in a sound condition. If they arrive in an u.nsownd condtition, h~ is not liable in the

Supr~me Gourt '0-f Appeals of Vh-gini:a

.abseifliee of evidt1r1;ee that negl/ilJence on his pa;rt ca1us-ed, .or aided in causing, the damage. Evidenoo that the shipment was in sound condition when recei-v.ed by him and in an unsound rcondition when delivered at destination is . p'1"ima -facie pro'of that the damage was (1au·sed by his n~gligence; but he may rebu,!; this presumption by showing, in any way that he can, that h·e was not :at fault. ·George B. Higgins £6 Co. v. C. B. db Q. Ry. Co., 135 Minn. 402, 161 N. W. 145, L .

. R. A .. 19170, :!)07." -

And in Presleu Fruit Co. -v-. Ht. L·ouis? et·c.-, R. R. Oo. (Minn.) 153 N: W. 115, tJ_le same court,. at p. 116, said:

''Where g(H3'ds .shipp·ed sulifer in.nnry of a ·character aris.in:g 'out of theitr illhe,rent nata:re, the 'liabil.tity of the oarrie~ d·epends upon ·negZigeiJWe, tund the -carrier is not Uahle if his ·otuftn 'iflfergli'!Je'i6Ce rJ!bd ti/Jot occasiot~~. ~or contribut·e -to t·he ilnjwrg.''

See, =also, ·Geo. B. lflilgg1ns ,ft Co. v. C. B .. -& ·Q. R. !R. Co .. !(-1viinn .. ~, .!61 N. W.145, 146.

In Tri-Stbafie FrWit Growers A-ssociati:on v. St. Louis, ·etc .. Ry. Co. (Mo.), 264 S. W. 445, it is said, at p. 446:

''As -a :general ru•le, a !carrier :as to most ·commodities delivered to it for transp·or:tation is an instlr.er against all re~sults incitilent to the transpor-tation, except injuries t'esulting £tom the :act of God, the pu:blic enemy, :and the fault ~or the -sl1ipper, :bu't i't 1,~ only Ua;b·te fo:r 'deterioPation in perish/abZe ·goods iln ·aase ·of negl~genr.e.''

To the same effect is R. E. Fwns'hen, etc., •Co. v. T:d~edo St .. L. & W. R. Co. (Mo.), 143 S. W. 839, 842.

In ·Datniel-s v:. -Nortke/rn !Pacific fly. Oo. ·~Ore.), 171 Pac. 1178, 1180:

"It is a·omitted that the properly ·wa:a ·perishable in it.s naiture, amd 'hence -tJve company w.as -not liable ~as ·an insurer, Wke mea.su_,re of its tbut'!) -was to 'Use reasonable care YJntd il-ili-' genae, considering :t:he_ nature of the /ohat"te'l's involved. This feature was ·discussed in .Miche'llod v. ·Ore-·Warsh, fR. "~ N. Co.,

-86 ·Or. ·329., 168 Pacific ·620. ''

'The .foi'agoing authorities, ·as well as the_ cas·es which we


will cite in the subdivision of this petition dealing directly with the question of the burden of proof, abundantly illustrat~ the current judicial pronouncements and application of the principle. The principle is not of modern origin, however, but has been consistently recognized and applied.

Thus, in the case of Lane v. Atlant-ic Works, 111 Mass. 136~ the Supreme Court of Massachusetts, at pp. 143-144, said:

''But. he is not, necessarily and under all circumstances, responsible fqr the condition. in which they may b.e found upon their arrival. The ordina-ry and natural decay of fruit, 'Vegetables and other pe1·ishable art,icles; the fermentation, evapora.tion or unavoidable leakage of liquids; the spontaneo'Us co'lnb'l~Jstion of so1ne kinds of goods; are nwtters to which the intplied obligation of the catTi.er, as an ins'ltrer, does not extend. Story on .Bailments, Sees. 492a, 576. He is liable for

. all accidents and mismanagement incident to the transportation and to the means and appliances by 'vhich it is effected; hut not for injuries pro9uced by, or resulting from, the inherent defects or essential qualities of the articles which he undertakes to tJ.:ansport. The exte.nt of his duty in this respect is to take all reasonable care and u.se all proper precautions to prevent such injuries, or to diminish their effect, as far as he can; but his liability, in S'ltch cases, is by no means that of an insu.rer."

. In Hussey v. The Saragossa., 3 Woods (U.S. Circuit Court) 380, the Court, at p:-'382, said:

"The liability of a common carrier of animals is not in all respects the same as that of a carrier of inanimate property. For instance, he is not an insurer against injures arising from the nature and propensities of the animals and which diligent care could not prevent. He is not liable for injuries by disease contracted without his fault after the stock is delivered to him. On the sa.me pr-inciple, proof of the decay of pedshable fruit cornrnitted to a. co'ln,mon can·-ier, would not of itself be sufficient to cha'r,qe him. Boyce v. 'Anderson, 2 Peters 150; Clarke v. The Rochester & Syracuse Railroad Co., 14 N.Y. 570; Smitll. v. The New Haven & Northampton Rail·road Co., 12 Allen 531; Hall '~ Co. v. Renfro, 3 Met. (l{y.), 51; Story on Bailments, sec. 492, a.''

~rhe foregoing quotation from the Hussey case was re-


ferred to with approval and followed by this Court in Norfolk a.nd Western Ry. Co. v. Reeves, 97 Va. 284, 290-291 . . And in the case of The Prussia, 88 :[ed. 531, the United

States District Court for the Eastern District of New York, referring to Park v. Barnwell, 12 How. 272, decided by the United States Supreme Court, and other cases, at p. 532, said:

''A common c_arrier warrants that he will deliver safely at their destination all goods whose carriage he undertakes, loss or injury from inevitable accident, or irresistible force, and lawfully exempted causes, excepted. But this warranty has never been thought to cover injury to go.ods from every ca''tse, but rather to insure against any or all injuries, acts, and conditions extrinsic to the goods themselves. .Against any or all injury resulting alone fron~ the quality or constit'Uent etem.ents of the gooas, it does not insure. For .every outward act or agency save those excepted by law. or con- . tract, it is absolutely responsible; but for deterioration of quality, arising from the nature of tbe thing, it is not liable. If the damage proceeds 'from an intrinsic principle of decay naturally inherent in the commodity itself, whether active in every situation, or only in the confinement and closeness of the ship, the merchant must bear the loss as well as pay the freight,' unless the masters and owners are in fault, or un,. less their contract of shipment contains an insurance or war:. ranty against Sl!Ch an event." ·

Having shown that a carrier is not an insurer of perish-. able property, we will consider the question of the burden of proof in cases of this. character.

The Burden of Proof Does Not Shift to the Defendant, but is on the Plaintiff- Thrott,ghout the Tr~ial.

As we pointed out in our statement of the case, there was really no issue on the question of defendant's liability for the fourteen boxes of apples which were broken due to the buckling, and for, the five boxes which were robbed. As to the remaining boxes, Mr. Burton, the .President of the plaintiff, testified they "seemed to be too ripe for storage," when be inspected them: On the other hand, Mr. Hansen, the fruit inspector. who made a detailed inspection of the shipment for the plaintiff, testified they were in good condition when he inspected them four days after arrival at the Richmond Cold Storage.. As to these 821 boxes of apples, the defendant "is

I

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liable, as we submit we have demonstrated, only in the event negligence on its part is shown. The following authorities, we think, establish beyond question that the burden of showing- negligence was upon the plaintiff.

On the general question of the burden of proof in actions founded upon negligence, it is stated in 1 Sherman & Redfield on the Law of Negligence (6th Ed.}, Sec. 57, p. 122, et .seq.:

''In an action founded upon negligence, the burden of proof of course rests upon the plaintiff. He must make out his case by a fair preponderance of evidence ; he is not bound to do so beyond a reasonable doubt. ·The burden of proof as to: dejendOM.t's negligence remains upon plalintijf throughout the trial. * * * It is certainly the duty of ~he plaintiff to prove affirmatively that the defendant has been negligent. 4!c • * He 'lnu.st also pt·ove facts from which it can fairly be inferred that the defendOint's negligence was the cause, mnd the proann1,ate ca~Me of the injury. Mere surmise or conjecture, on these points, will not do.

The same authority, in Sec. 58, pp. 126, 127, further says:

·''The ambiguity of the phrase 'burden of. proof' lies in its ·use to express either a result of the evidence or the means of reaching. such result. This indifferent use has led to confusion in discussion. 'Burden of proof, as a phrase, means therefore either: (1) The necessity of establishing a certain fact or set of facts which preponderates to a legally required extent, or (2), the necessity which exists on a party at a partir.ular time during a trial to create a prima facie case in his own favor or to overthrow one when created against him'. The learned writer of the article from which this extract is taken proceeds with excellent acumen to discuss the law arising from the use of the' phrase in the latter sense under the head of 'Burden of Evidence' while applying the term 'burden of proof' to the necessity of finally establishing the fact or facts in issue. The burden of proof in the·latter sense, its proper use, never shifts. " ·

Prof. Dobie, in his 'vork on Bailments and Carriers, at pp. 3n-37, says :

''It seems accurate, according to the weight .of authority, and also on principle, to sar that, since the negligence· of the bailee is a fact, upon whiCh the bailors right to recover

16 "Supreme Court of Appeals of Virginia

is based, the burden of proof a.s to such negligence rests at the outset on the plaintiff barilo1·, and remains on him all dwring the trial.''

An exhaustive treatment of the general principles governing· the burden of proof in civil actions appears in 5 Wigmore tln Evidence (2d l!Ad.), Sec. 2483, et seq., to which the Court is 1·espectfully referred. Particular attention is called to Sec. 2494, at p. 455, in which Prof. Wigmore deals with the effect of a pri1na facie case. ·

· in the case of Kohlsaat v. Parkersbut·g & il1.arietta 8a;nd tJo., 266 ,Fed. 283, the late Judge l{nnpp, speaking for the United States Circuit Court of Appeals, 4th Circuit, at pp. :l84;, 285, said :

··There appears to be some confusion of thought and some conflict of a!lthority, particularly in the earlier decisions, be~ause of the double meaning of the phrase 'burden of proof'. Primarily it means the duty resting on one party or the other, usually the party having the affirmative, to establish by pre-

. ponderance of evidence a proposition essential to the mainu~nance of the action. In this sense the burden of proof never ~hifts .Jt· choo_qes, b'lt.t ren~ains from fit·st to last where it is placed by the plead-ings or the S'l~bstantive law of the case.· 8ometrmes, how~ver, the phrase is used to describe the duty or going forward with the evidence during the progress of the trial. The plaintiff may offer sufficient proof to make a pr~·ma fac·ie case, or he may be aided by a presumption of law, which, if nothing further appeared, would entitle him to -a verdict; and when this happens the burden of meeting the pr-l·ma facie cas~ devolves on the defenqant. Thus, the duty of 1 going for-ward'-that is, the necess·ity of producing further evidence-tnay shift back and forth as the trial proceeds. But when all the proofs are in, and the case is ready for submission to the jury, the ·question of whose duty it was to go forward with the evidence at any turn of the trial practically disappears; and the more i1nportant question arises as to which pa1·ty has the burden of establishing by the .greater weight of eviden:.ce the zn·oposition in dispute; or, to use the expressive language of Prof. Wigmore, which party takes the risk of nonpersua tion.''

Then, after observing that a bailee for hire is not an insurer of property placed in its possession (just as a carrier

\ \ \


bailee is not an insurer of perishable property), Judge Knapp, at p. 285, further sai<;l:

"Henc.e the essential element of a bailor's cause of action, the fact to be established by him, is negligence on the part of the bailee. On that issu.e tlte bu1·den of proof rests all the. while on the plaintiff, and at no sta.ge of the trial coo i'b b~ passed over to the defendant."

This Court, in the case of Norfolk-Southern R. R. Oo. V.· Tomlinson, 11~ Va. 153, after reviewing several cases bearing upon the question of the burden of proof in actions prediCl::t t.:~£1 npon negligence, at p. 162, said:

'' * * * the burden of proof as to the defendant's neglig-ence remains upon the plaintiff throughout the trial."

And at pp. 162-16a, this Court quoted with approval from the case of Kay v. Metropolitan St. RJJ. Co. (N. Y.), a7 N. E. 751~ 752, in which it was said:

"If the defendant's proof ope'rated t.o rebut the presumption ·upon which the pla-intiff relied, or -if it left the asserted fact of negligence in doubt and uncertainty, the party who rnade the allegation should, suffer and not her adve1·sary. The jury were bound to put the facts and circumstances proved by the defendant into the scale against the presumption upon "rhich the plaintiff relied, and in determining the weight to be given to the former as against the latter, they were bound to apply the rule that the burden of proof was upon the plaintiff."

.And again, at p. 163, this Court said:

"In order to rebut the presumption of negligence arising ft."om the derailment, . the defendant, we do not think was bound to satisfactorily account for the cause of the accident.''

And at p. 164, this Court quoted with approval the following:

"After it had introduced evidence from which the jury could find that it had used due care in the construction, equipment and maintenance of the railway, the burden of proof had not been shifted, but _still rem·ained upon the plaintiff to establish the defendant's negligence upon all the evi-


derice of which the presumption or inference of negligence upon proof of the derailment and injury formed only a part.''

The Tomlinson case invplved ~n injury to a passenger.

The ptinciples which were• announced in that case were applied by the United States Supreme Court in the case of Chesapeake and Ohio Ry. Co. v. A. F. Thomps,o'lt Mfg. Co...,. decided May 8, 1926, and reported in the Aprill, 1926, United

. States Supreme Court Advance Opinions, p. 364, 70 Law. Ed. 364, which case involved alleged damage to a shipment of stoves. Under the facts of that case, as in this case, the right, if any, to recovery depended upon negligence on the part of the carrier.

In this connection, the court, at p. 365, said~

''The respondent therefore had the burden of proving the carrier.'s negligence as one of the facts essential to recovery.''

We will not quote at length from the opinion in that case, but the attention of this Court to it is respectfully invited.

See also Southern Rail'way Co. v. Prescott, 240 U. S. 632, 640, in which the same principle~ were applied.

The cases hereinbefore cited in this subdivision deal gen~rally with the question of the burden of proof. We now ask the Court's attention to the following authorities dealing specifically with the burden of proof in actions for damage to perishable shipments.

In 4 Elliott on Railroads (3d Ed.), Sec. 2276, p. 742, it is said, at pp. 746-747:

''It has also been held by some of the courts that where the property consists of live stock or perishable fruit, or the like, 'vhich is peculiarly liable to injury or deterioration be-

. cause of its inherent nature or vice, it is not enough for the shipper to show that it was delivered by the carrier in a damaged condition, and so it has been held that where the shipper goes with the stock and agrees to take care of it he must show negligence on the part of the carrier and freedom f1:om negligence on his part. It can not l)e said, however, that either of these. propositions is settled law in all jurisdictions. But the nltle which affirms that the burden is on the shipper in

--------~ ---~---

Southern Railway Co. y. lJurton & Briel, Inc. 19

.S1t.ch cases rests, we think, on solid fowndations. It seems to Jta.ve been sometim.es overlooked~- but there ar.e a few., if any, well-considered cases in which it has been expressly denied.''

In McDan,iel v. Atlantic Coast Line Ry. (N. C.), 130 S. E~ 208, which involved the claim of damage to a carload of oranges, the court, at p. 208, said :

"We deem it unnecessary to consider more than one exeeption. There ·was error in the charge of the trial court in regard to the burden of proof. The following excerpts constitute the basis of two of the defendant's exceptive assignments of error :

"(1) 'If you find by the greater weight of the evidence that the oranges ~vere delivered in good condition and arrived in a damaged condition, then the burden of proof shifts to the defendant.'

"(2) 'Now, gentlemen of the jury, I have told you about the burden of proof. I again call your attention to that. If you find, by the greater weight of the evidence that this fruit w·as received in good condition and that it arrived in bad eondition, then the plaintiff would have made out a prima facie case, but a prima facie case can always be rebutted. It is for you to say whether or not the defendant, the burden _

· of proof having shifted to the defendant, as to whether or not the defendant has rebutted this pri1na. facie case of the p1ainti:ff.' ''

''These instructions, it must be conceded, as it was on the .argument, are in direct conflict with what has been said in a number of recent cases, notably Dickerson v. Norfolk Southern. R. Co., 190 N. C. 300, 129 S. E. 810; Ji,er,rell v. Norfolk Sou.thern R. Co., 190 N. G. 126, 129 S. E. 155; H'Wnt v. Eur:e, 189 N. C. 482, 1~5 S .. E. 484; Speas y. Batnk, 188 N. C. 52~t 125 S. E. 398; Berhe O~l Co. v. Atlanhc Coast R. Co., 183 .N. 0. 95, 110 S. E. 660,; White v. Hines, 182 N. C. 288, 109 S. E. 31.

''The burden of proof in a civil action is not shifted when th~ plaintiff make.s out a pri,ma facie case, nor is the defendant required to offer evidence to rebut a prima facie showing, or to escape liability o:p such a showing. A 'prima facie case' means and means no more- than evidence sufficient to justify,

· but not to compel, an inference of liability, if the jury so find. It furnishes evidence to be weighed, but not necessarily to he accepted, by the jury. It simply carries the case to the

.20 Supreme Court of Appeals of Virginia

jury for determination, and no more. -'A prima facie showing merely takes the case to the jury, and upon it alone they may decide with the actor or they may decide against him~ and whether the defendant shall go forward with evidence or not is always a question for hiin to d_etermine.' Varser, J., in Hunt v. E~tre, supra. See, also, til~ustin v. R. R., 187 Nt. C. 7, 121 S. E. 1; ll1cDowell v. Norfolk, etc., R. Co., 186, N~ 0... 571, 120 S. E. 205; Page v. Ca1np Mfg. Co., 180 N. C. 330,

·104 S. E. 667; State v. Wilkerson, 164 N. C. 431, 79 S. E. 888; Shepard v. Tel. Co., 143 N. C. 244, 55 S. E. 704, 118 A.m. St. Rep. 796.''

In Witaker v. Chicago, etc., Ry. Co., 131 N. W. 1061, which involved alleged damage to a carload of strawberries, the court, at p. 1062, said:

''The court did not encroach upon that rule of law in stating to;;:the jury that plaintiffs could not recover unless they established by a greater weight of the evidence that defendant failed in its legal duty to plaintiffs. The instructions did not improperly shift the burden of proof upon plaintiffs. Plaintiffs were ~tndoubtedly obliged affirmatively to sh.o'w negligence on the part of defendant, in the absence of which no recovery could be had. Evidence of the sound condition of the goods when delivered for shipment and their damaged condition at destination is sufficient to justify a recovery unless

· rebutted by def~ndant. lJilahoney v: Railway Go., 35 Minn . . 361, 29 N. W. 6.''

"But there is~n such cases no shifting of the burden of proof. 1.'he burden rmnains ~tpon plaintiff throughout the trail. He is simply aided by the presumption. Demeules v. Jewel Tea Co., 103 Minn. 150, 114 N. W. 733, 14 L. R. A. (N. S.) 954, 123 Am. St. Rep. 315; Errett v. Wheeler, 109 Minn. 157, 123 N. W. 414, 26 L. R. A. (N. S.) 816.''

And in JlllcNeill & Scott Co. v. Great N.orthern R. R. Co. (Minn.), 194 N. W. 614, the .court, at p. 617, said:

''Defendant requested an instruction to the effect that plaintiffs had the burden of proving negligence. The court refused this instruction, and charged the jury that plaintiffs sustained the burden of proof in the first instance by shoWing that the carriers received the shipment in good condition and delivered it in a damaged condition, and that it was then-


'incumbent upon the defendants and each of them to show by a fair preponderance of evidence that they were free from negligence.'

''The de,fendoots were not reqttired to show by a preponderance of the evidence that they had not been ·1~egligent; they 'Were merely required to rebut the 1Jresttmption of negligence . . a.rising from the fact that the potatoes had deteriorated while in their possession. The burden of pr.oof was on platintiffs throu,qhout the trial. Whitaker v. C., St. P., M. & 0. Ry. Co., 115 Minn. 140, 131 N. W. 1061."

See, also, Presley F1·uit Co. v. St. Loulis, etc., Ry. Co., (Minn.), 153 N. W. 115, 116.

In Lazarus v. Barber, 136 Fed. 534, which involved a shipment of green goat skins, whicha were prone to absorb moisttlre rapidly, the United States Circuit Court of Appeals, 2nd Circuit, at p. 536, said:

''In support of these contentions respondents· rely on the fact that the bales of skins next forward of the barrels of citron were not wet or damaged, and that there was no leakage on the maganese under the barrels, and that the bottom of the ship was dry. The established rule is that where the ·evidence shows that the damage was occasioned by one of the causes for which the vessel was exempted from liability, in the absence of some fault. such as nP-gligent stowage, the burden is upon the libelant tn .~how that it might have·been p'revented by reasonable skill and dili,qence on the part of those employed by the vessel. Clark v. Barnw~ll, 12 How.' 272, 13 L. Ed. 985; Cattt v. 1'exas & Pa.cific Railway Co. (194 ·u. S. 427, 432, 24 Sup. Ct. 663, 48 L. Ed. 1053.)"

In the case of Folmina, 212 U. S. 354, the United States Supreme Court, at p. 362, said:

''Of course, where goods are delivered is a damaged condition, plainly caused by breakage, rust or decay, their condition brings them within an except~on exempting from that character of loss, as the very fact of the nature of the injury shows the damage to be prim.a. facie within the exception, and hence the burden is npon the shipper to establish that t]Je. goods are re1noved fro'ln its ope1·ation becau.se .of the negligence of the carrier."


The rule applied in the foregoing cases of perishables is likewise applied _in the case of live stock, for the same reason. Live stock is subject to inherent infirmities which may result in sickness or death, and also to damage resulting from

. their natural vicious propensities, just as perishables have an inherent tendency to ripen and decay. The authorities from which we will now quote, involving claims for damage

oto .shipments of live ~ock, are in point in all respeets. In fact.~ the cases involving damage to live ~tock and those involving damage to perishables are cited constantly by the eourts in support of the principle for which the defendant contends, whether it arises out of a ·claim for damage to live stock or to perishables.

This Court, in Norfolk & nr estern. R. Co. v. Reeves, 97 Va. 284, which involve<L a claim of damage to live stock, had under consideration an instruction given on behalf of the plaintiff

· 1vhich ''told the jury that injury to live stock, in the custody of a common carrieJ: for shipment, raisca a presumption of negligence against the carrier, and th~ burden is on it to show that the injury arose from a cause for which it is not responsible.'' This Court disapproved the instruction, and, after referring to Hussey v. The Saragossa, post, at p. 291, said:

"He must shou· some in}rury to the thing shipped, which cannot be the· reS'ult of its inherent natttre or defects, befo1·.~ the burden is cast upon the carrier to .~how that he ~s not iw .f~"~ttlt. See, also, Smith v. Midland R. Co., 57 L. T. R. 813; .11Jlliott on Railroads, pp. 2345, 2349; Clark v. Rochester & 8. R. 0 o., 67 Am. Dec. 205; Penn. R. R. Co. v. Raiordon, 119

·.Penn. St. 577."

..... '\.nd in Adams Ex. Co .. v. Allendale, 116 Va. 1, which arose out of a claim of damage to a cow, this Court, at p. 5, said:

''The evidence for the plaintiff, in its most favorable light, only shows that the alleged paralysis of the cow might have been due to a .sudden jar, like one train colliding with another, or the car containing the cow being jammed suddenly against another car. To reach the conclusion that the alleged injury an,d damal}e to the cow was d1M to sttch an occurrence in her tra.ns·it and not to her nervous ternperament, or her nature or propensities, conject~tre would necessarrily have to be resorted to."

And at pp. 7 and 8, the Court also said:

------------

Southern Railway Co. v. Burton & Briel, Inc. 23 ·

'' * • • the fact that the cow in question was, after she had been ·removed from the car in Washington in apparently good condition, found to be sick is not s1.tch evidence of darnape or injury to her as shifted the b'ltrden 1.~.pon the defendant to prove its freedom fron~ fault. The plaintiff's eviilence is silent as to any fault on the part of the defendant in the transportation of the cow from the initial point of shipment to \Vashington, D. C., while defendant's uncontradicted testimony is that Rhe was properly cared for throughout the route, and that there was no happening to the train or to the cow which could have caused her injury or damage.

"Neither -of the plaintiff's expert veterinarians could :find any injury or abrasion, or even rubbing of the cow's skin, though they diagnosed her trouble as partial paralysis of the l1ind legs, due to pressure on the spine or blood clot.

''A plaintiff stllin,g for damages in sttch a case must show. some inju.ry t.o the thing shipped, which ca~nnot be the result <l/ its inherent nature or defeats before the burden is cast ttpon the ca.rrier to show ·that it is not in fwul't. N. &· W. Ry. Co. v. Reeves, 97 Va. 284, 291, 33 S. E. 606."

- In H,ussey v. The Saragossa., 3 Woods' (U. S. Circuit Court), 380, the court, at p. 381, said:

"But the shipper must show an injury to the article shipped before the burden is cast upon the carrier to exonerate himself. Is an injury shown when the article shipped is a horse or other live stock, which is proved to have been delivered to the carrier in good health and condition and to have been redelivered to the shipper in a sick and debilitated condition, but without any fracture~, wounds, abrasions, or other external or visible injury Y I think not.''

And at p . .382:

''When the damage to the thing shipped is apparently the result of its inherent nature or inherent defects, the shipper must show something more than its damaged condition before t.he carrier can be called on to explain. He must show some injury to the thing shipped which can not be the result of its inherent nature or defects, befo're the burden is·cast upon the carrier to ~how that he is not in fauU."

We need not quote from additional cases to further demonstrate this principle. However,. we invite the Court's atten· tion to the additional authorities following:


Boyce v. Anderson, 2 Peters 150, 154, et seq.-opinion by Mr. Chief Justice Marshall. ·

Transportation Co. v. Downer, 11 Wall. 129, 133-134. Ca.u v. TeaxitS Paaific Ry. Co., 194 U. S. 427, 432. Gillette Safety Razo'r Co. v. Davis, Director-Ge·neraJ,, 278

Fed. 864, 867 . .A~~tin v. 8. A. L. Ry. Co. (N.C.), 121 S. E. 1, 2.

While the case of S . .A. .• L. Ry. Co. v. J. E. Bowden & Co~ (su.p'ra), decided by this Court on January 14, 1926, and reported in 131 S. E. 245, does not directly deal 'vith the question of burden of proof in cases of this kind, it approved the Railroad's contention that quoad perishables a carrier is liable only for negligence, and we think clearly recognized that the burden of proof was upon the plaintiff, and we again inVite the Court's attention to that case.

In the light of the authorities hereinbefore quoted and eited, we do not think further argument is necessary to demonstrate that the trial court erre.d in instructing the jury that the burden of proof in this case was upon the defendant. We confidently urge there \Vas reversible error in this respect in the court's instructions of which complaint is herr made.

If the Jury Could Not Determ.ine the Cause of the Alleged Damage, Their Verdict Sho~tld Ilave Been for the Defendant, and the Co~trl Erred in Instructing the Jury to the Contrary in Instruction No. 6.

The burden of proof in this case being upon the plaintiff, as we submit we have shown, the trial court also erred in giving Instruction No. 6, which told the jury that if it believed the alleged damage might have been caused "by one or more of several things, for one or more of which the defendant is liable, and for one or more of which it is not, then you must find your verdict for the p,laintiff."

In the English case of Muddle v. Stride, decided in 1840, 9 Carr & Payne, English Common Law Reports, which was an action against a watet carrier, the court, at p. 165, said:

''If, on the whole, in your opinion, it is left in doubt what the cause of the damage \Vas, then the defendants will be entitled to your verdict; because you are to .see clearly that they were guilty of negligence before you can find your verdict against them. If it turns out, in the consideration of the

\ \


case, that the injrwry may as well be attributable to the one catUse as the other, then also the defendants will not be liable for neglige·nce. ''

The Muddle case was cited with approval by the U~ted States Supreme Court in Clark v. Barnwell, 12 How. 272, wherein the court, at p. 280-281, said:

"Hence it is, that, although the loss occurs by a peril of the sea, yet if it might have been avoided by skill and diligence at the time, the carrier is liable. But in this stage a;nd.posture of the case, the burden is 'ltpon the plaintiff to establish the negligence, as the ajjir1native lies upon hi1n. On this ground in the case of Muddle v. Stride, 9 Carr & Payne, 380, which was an ·action against the proprietors of a steam vess~l to recover compensation for damage to goods sent by

. them as carri.ers, Lord Chief Justice Denman, in summing up to the jury observed, 'if" on the whole, it be left in doubt what the cause of the injury was, or, if it may as well be attributable to ''perils of the .sea'' as to negligence, the plaintiff cannot recover; but, if the perils of the. seas require that more care should be used in the stowing of the goods (articles of silk and linen) on board, than 'vas bestowed on them, that will be negligence for which the owners of the vessel will be liable. That the jury were to see clearly that the defendants were guilty of negligence before they could find a verdict against them'.''

And in Lan~b v. Ca1nden & Amboy R. R. db T. Co., 46 Nl. Y. 271, it appeared that the damage to the shipment resulted from fire, a cause for which the carrier was not responsible unless it was guilty of negligence. In reversing the case for error in the trial court's charge to the jury upon the point bere under consideration, the court, at pp. 281-282, said:

"Taking both together, the j~try must have understood, that they were to find for the plaintiffs, if s·atisfied tha.t the fire res'ltltecl fro-m the defendant's negligence, and that they were also to find for them, 'ltnless they fown.d it did 1wt so result? This gave the plaintiffs the 1:erdict, if the jury were unable to find negligence in the defendant, on the grownd that they were 'lmable to .c;ay that the proof showed that it w.as not negligent. Thus in effect, finding for the plaintiffs, without determining the question at all, much less 'vithout finding that the fire was the result of defendant's negligence.''


And in the course of its opinion, the court, ·at p. 280, also said:

''Be that as it may, the· burden was still upon the plaintiff to establish, to the satisfac-tion of the jur~- from all the evidence, that the fire was the result of the negligence of the defendant.'' ·

The principle for which we here contend was approved . . and applied by this Court in the case of A.da;m,s Ea;. Oo. v. Allendale, 119 V a. 1, from which we have already quoted. In tl!at case, at p. 5, this Court said:

''The evidence for the plaintiff, in its most favorable light, only shows that the alleged paralysis of the cow might have .been due to a sudden jar, like one train colliding with ·another, or the car containing the cow being jammed suddenly against another car. To reach the conclusion that the alleged. injury an.d damage to the cow U)as due to such an occurrence in kerf transit and not to her nervous te1nperament, or her nature) or propensities, conjecture would necessarily have to be resorted to." ·

In other words, in the Allendale case it appeared that the cow was sick, and the court said that a recovery on that showing would have to be based upon speculation as to the carrier's negligence. The burden of proving negligence was upon the plaintiff, and. as no showing of negligence was made, this Court reversed judgment for the plaintiff in .the trial court.

Likewise, in this case a recovery can be had only upon the . basis of negligence, and the burden was on the plaintiff to show negligence. If it failed to do so, or if, upon the whole, the jury could not determine whether there was negligence ou the part of the defendant, then upon principle, and authority their verdict would have to be for the defendant, and it is submitted the court erred in not so instructing them, and in giving the Instruction No. 6, which told the jury just the contrary.

See, also:

-N orfol'k-So'ltthern Ry. Co. v. Tomlinson, 116 Va. 153, 163. Hicks v. Romaine, 116 Va. 401, 409-410. C. & o~ R. Co. v. Catlett, 122 Va. 232, 242-243.

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The Trial Court Erred in Not Setting Aside the Verdict cf the Jury.

We think we have shown there was serious error in each of the three instructions given by the trial court and hereinbefore considered, which requires a reversal of the case. B.owever, we respectf~lly urge that the verdict cannot be sus-tained upon the facts of the case. ·

While 1\{r. Burton testified he inspected the shipment on the morning it was placed for unloading,, he also stated, as we have shown, that he had no independent recollection of the time of the inspection, and that he stated the date only lJy referring to what purported to be a memorandum of the inspection. That m~morandum, however, did not give any date of inspection, but the entry to which he referred was the date the car was placed for unloading· (R., p. 44). Therefore, we think the statement of Mr. Burton that he made the inspection on the morning of the placement is wholly discredited by his own admissions and is entitled to no weight. The undisputed testimony on behalf of the defendant is that the car was under se·als at that time, and that Mr. Burton did not make an inspection until the morning of October 22nd, after the car had been in place over two days.

Mr. Burton states he examined probably twenty-five of the boxes out of the shipment of 840 boxes. Obviously, he made no close inspection of the shipment, and he could not do so, for the car was loaded solid,' as the record shows, and Mr. Burton merely made such inspection as he could from one of the side do~rs which was op~ned for t1ie purpose.

As to the :five boxes which were robbed and the fourteen lJoxes which were broken and bruised, there is no question as to defendant's liability. As to the remaining 821 boxes, Mr. Burton testified they appeared to be too ripe for storage, and that he therefore sold them at 75c less than the market value. Ile had made no detailed inspection of the shipment, but, on thEl contrary, had the fruit inspector make the full inspection after the car l1ad left the lines of the Southern and was unloaded at the Gold Storage on October 24th, or four days after arrival. The inspector, who was employed and paid by the plaintiff, testified the apples wer.e then in good condition, and that there was no reason why they could not be stored; and, as we have shown, they were in fact stored, remained in storage from :five to six months, and a part of them were then shipped in export. Surely, upon this state of the record, the plaintiff has not shown any damage to the 821 boxes, and even if such damage were shown, the plaintiff, we submit, has

•

Supreme Court of Appeals. of Virginis i

not.shown in evidence any facts upon which it could be found that it resulted from any negligence on the part of the defendant.

CONCLUSION ..

For the foregoing and other errors apparent on the face of the record, your petitioner prays that a writ of error and supersedeas may be awarded it to said judgment that said judgment and the proceedings leading up thereto may be reviewed and the judgment reversed.

Respectfully submitted,

SOUTHERN RAILWAY. COMPANY, By WIRT P. MARKS, Jr., Counsel.

I, Wirt P. :h£arks, Jr., an attorney practicing in the Su-. preme Court of Appeals of Virginia, do hereby certify that in my opinion the judgment complained of in the foregoing petition is erroneous and should be reviewed and r.eversed l1y this Honorable Court. ·

WIRT P. MARKS, Jr. Rec'd Au·g. 27/26.

H. S. J.

Writ of error allowed and· supersedeas awarded. Bond . $600.00.

To the Clerk at Richmond.

Rec'd Aug. 31, 1926.

VIRGINIA:

R .. H. L. CHICHESTER.

H. S. J.

Pleas before the Honorable Frank T. Sutton, Jr., Judge of· the Law and Equity Court of the City of Richmond, Part Two, held for the .said City at the Courtroom thereof in the City Hall on the 9th day of .August, 1926, at tlie request of the Honorable Beverley T. Crump, Judge.

Be it remembered that heretofore, to-wit: In the Clerk's O.ffice of the said Law and Equity Court of the City of Richmond, the 12th day of December, 1924 : Came Burton and

\ \ \

- --~------------


Briel, a Corporation, by counsel, and filed a Notice of Motion for Judgment against the Southern Railway Company, a Corporation, which Notice of ~lotion is in the words and figures following, to-wit:

Virginia, In the Law and Equity Court of the City of Richmond. ·

Burton and Briel, a Corporation, Plaintiff, vs.

Southern Railway Company, a Corporation, Defendant.

NOTICE OF JYIOTION FOR JUDGMENT.

To Southern Railway Company, Incorporated:

Take notice that the undersigned, Burton and Briel, Incorporated, hereinafter called the plaintiff, shall, on the 29th day of December, 1924, at 11 o'clock A. ~I. or as soon thereafter as it can be heard, move the Law and Equity Court of the City of Richmond, State of Virginia, at the court-room thereof in the City Hall of said City, for judgment against you, the defendant, for the sum of six hundred and forty-five dollars ($645.00), with interest thereon from the 20th day of November, 1923, until paid, due to it by you, demand for which it has made upon you and for which you have refused to pay, and which sum is due to it by you by reason of the following facts :

page 2 ~ That the said plaintiff is a corporation organ-ized and doing business under the law.s of the State

of Virginia as a commission merchant and a dealer in farm and orchard products, with its principal place of business in the City of Richmond, in the State of Virginia;

That you, the said defendant, are a corporation organized nnd doing business under the la-ws of the State of Virginia, und a common carrier of freight for hire and reward;

That the Southern Pacific Company i.s a common carrier of freight for hire and reward ;

'.rhat on or about October 4th, 1923, MacDonald and Sons cau~ed to be d~livered to the Southern Pacific Company, as such common carrier of freight, and the Southern Pacific Company received as such, at Watsonville in tb.e State of California, eight hundred and. forty (840) boxes of Newton Pippin apples in So. R. W. car No. 122243, that the said app1es, upon delivery by the consignor to the said carrier, were

30 Supreme Court of .Lt\..ppeais of Virginia

in good sound condition, of fine quality, hard, of good keeplng quality and were intended and fitted to be put in long t:~torage at Richmond, in the State of Virginia, in other words, sto.rage apples; that the apples were loaded the entire. length of the car, nineteen (19) stacks four (4) layers high; five (5) P.tacks four ( 4) layers hight; all eight (8) rows wide, alter- · nate and top lzyers stripped; that the containers were standard, strong and durable; that the apples were properly and z:,tandardly packed in the car and that the car was properly str.ipped and braced, as were the containers of the apples therein; that the apples were consigned to MacDonald and Sons at Richmond, in the State of Virginia, with advice to . notify Burton and Briel, Incorporated, the plaintiff and the assignee of the owner of the apples, that thereupon the Southern Pacific Company issued its bill of lading to the consignor

for the said apples and agreed with and promised page 3 } the consignor, for a consideration in that behalf,

to transport the apples in the said car under standP..rd ventilation to destination; that the Southern Pacific Company then and there agreed with and promixed the consignors, as such common carrier, for a consideration in that behalf, to safely and within a reasonable length of time, carry and deliver the said apples to MacDonald and Sons at Richmond, in the State of Virginia; that still late you became and 'vere the connecting and delivering common carrier of. these apples of the Southern Pacific Company, for a consideration to you in that behalf, and agreed and promised, for a consideration to you in that behalf, to, safely and within a reasonable length of time, carry and deliver the said -apples, as ~nch common carrier, and as such connecting and delivering carrier, to the consignee at Richmond, in the State of Virginia, and thereupon it became and was your duty to take due and proper care of the said apples no.t only in and about the carriage and conveyance of them, but the delivery thereof to the consignee and within a reasonable length of time and give the apples standard ventilation;

Yet you, the said defendant, disregarding your duty, as aforesaid, and as such common carrier, -as aforesaid, and as such connecting and delivering carrier, as aforesaid, did not nor would not, safely and within. a reasonable length of time, carry the said apples and give them standard ventilation from the point at which you received them to Richmond, in the State of Virginia, nor there, to-wit, at Richmond, in the state of Virginia, to, .safely and within a reasonable length of time, deliver them to the consignee, but, on the contrary,

\

\ \


thereof you, the sa.id defendant, being such common deliv.erinp: and connecting carrier,. as aforesaid, so carelessly and llP.gligently behaved and. conducted yourself in the premises

that by the negligence, carelessness and default of page 4 ~ you, the said defendant, in the premises the said

apples were caused to unduly ripen and to become soft and unfit for lengthy storage, the load being buckled and shifted in the car, many of the boxes containing the apples broken and the contents of many boxes missing and not delivered to the consignee; that the seals were broken on the car, that the top end vents were open and the bottom end vents were closed, the contents of the car not receiving standard-ventilation, as provided for, and a great percentage of the apples being cut, bruised, mashed, decayed and in a yellowish condition and unfitted for storage as they would have been had they been received by the consignee in the condition in which they were delivered to the initial carrier, due allowance being made for normal ripening, and you delivered the cary very much delayed in transportation by you; that the plaintiff also relies upon the burden imposed upon you by Jaw to .show that,you received the apples, the containers thereof and the car in the condition in which you delivered them to the consignee; whereby and because of all of the foregoing Burton and Briel, Incorporated, the assignee of the owner of the apples has sustained loss and damage in the sum of six hundred and forty-five dollars ($645.00), and therefore brings this notice of motion for judgment against you for that sum, ~ix hundred and fort)-five dollars ($645.00) with interest thereon from N ovElmber 20th, 1923, until paid.

BURTON & BRIEL, INCORPORATED, Plaintiff, by its Attorneys.

BETHEL & WILLIAMS, p. q.

11age 5 } And at another day, to-wit: at a Law and Equity Court. of the City of Richmond, held the 29th day

of December, 1924 :

This rlay came the plaintiff, by counsel, and on its motion it is ordered that this case be docketed and continued. And on the further motion of th.e plaintiff by counsel it is ordered that the defendant do file herein a statement of the grounds of its defense on or before the 1st day of February, 1925.


page 6 ~ And at another day, to-wit: at a Law and Equity Court of the City of Richmond, held the 17th day of

June, 1926 : ·

This day came the defendant, by counsel, and filed affidavit that there is in possession of Richmond Cold Storage, Incorporated, which is not a party to the matter -here in controversy, certain records hereinafter described, and moved the court for an order directing the Clerk to issue a subp.oena d1tces tec'lt'nt to compel the production of said books and records.

On consideration whereof it is ordered that the Clerk of this Court do issue a subpoena duces tecum requiring' the ~aid Richmond Cold Storage, Incorporated, to produce at the court room of this court forthwith its books of account and records showing the date of receipt from Burton and ;Briel, Incorporated, at its warehouse on or about October 24th, 1923, of approximately 840 boxes of apples in car Southern 122243, and also its records showing the date said apples were admitted to storage, by whom they were stored, the l~ngth of time they remained in storage, the inspection report, if_any inspection was made at the time they were stored, and any other inspection reports while they remained in storage, the amount of storage paid for the storage of said apples, the date they were removed from storage, and by whom removed and each and every other record in possession of said Richmond Cold Storage, Incorporated, in any way pertaining to the storage of said apples.

page 7 } And at another day, to-wit: at a Law and Equity Court of the City of Richmond, held the 17th day

of J nne, 1926:

For good cause appearing to the Court and in order to equalize the work of the Courts, it is ordered, in accordance with law, that this cause be removed to the Law and Equity Court of the City of Richmond, Part Two, to be there docketed and proceeded ~th.

page 8 ~ In the La'v and Equity Court of the City of Richmond, Part Two, on the 17th day of June, 1926.

This case which has been removed to this Court, by an order of the Law and Equity Court of the City of Richmond, and the papers having been this day received by the Clerk, it is ordered that the same be forthwith docketed and pro-


ceeded with -as if the same had been originally instituted in this Court.

In said Law and Equity Court of the City of Richmond, Part Two, on the 17th day of J nne, 1926:

This day came the Plaintiff and the Defendant, by Connset and the Defendant, by Counsel, pleaded ''not guilty" and put itself upon the Country, and the Plaintiff likewise. And thereupon came a Jury, to-wit: E. L. Stertz, R. G. Cauthorn, J. W. Collins, Jr., E. W. Jay, W. H. Dillard, R. L. Acree and I. A. Steger, who were sworn to 'vell and truly try the issue joined, and having partly heard the evidence, were adjourned until Monday, June 21st, 1926, at eleven o'clock A. M.

And -at another day, to-wit: In said Law and Equity Court of the City of Richmond, Part Two, on the 21st day of June, 1926:

This day came again the parties, by Counsel, and the Jury · appea~ed in Court in accordance with their adjournment, and

having fully heard the evidence and arguments of Counsel, were sent out of Court to consult of a verdict and after some:.. time returned into Court and declared that they were unable to agree upon a verdict; thereupon R. G. Cauthorn, one of the

jurors aforesaid, was withdrawn ·and the rest of page 9 } the Jury from rendering a verdict discharged, and

the further hearing of this case is continued.

And at another da.y, to-wit: In said Law and Equity Court of the City of Richmond, Part T'vo, on the 1st day of July, 1926:

F1or good cause appearing to the Court, and in order to equalize the work of the Courts, it is ordered, in accordance with law, that this cause be removed to the Law and Equity CouTt of the City of Richmond, to be there docketed and proceeded with.

page 10 } And at another day, to-wit: at a La'v and Equity Court of the City of Richmond, held the 1st day

of July, 1926:

This case which has been removed to this Court by an .order of the J.Jaw and Equity Court of the City of Richmond, Part Two, and the papers having this day been received by

.3.! Supreme Court of Appeals of VirfP11ia

the Clerk, it is orde.red that the same be forthwith docketed and proceeded with as if the same had been originally instituted in this Court. And thereupon came a jury, to-wit: P. Harper Gay, E. C. Gilliam, A. L. Bass, William L. Beale, Ellis D. Gayle, W. C. Germelman and S. King Fulton, being sworn well and truly to try the issue joined in this case and

.having partly heard the evidence were adjourned until tomorrow morning at ten o'clock.

·page 11 ~ And at another day, to-wit: at a Law and Equity Court of the City of Richmond, held the 2nd day

of .July, 1926:

This day came again the plaintiff and defendant by counsel and the jury sworn in this case on yesterday appeared in Court in accordance with their adjournment and having fully heard the evidence and arguments of counsel were sent out of Court to consult of a verdict and after same ttme returned into Court with a verdict in the words and figur.e.s following, to-wit: "We, the Jury, on the issue joined find for the plaintiff and assess his damages at $400.00. ''

Thereupon the defendant, by counsel, moved the Court to. set aside the said verdict as contrary to the law and the evidence and bee a use the damages. assessed were excessive, which motion the Court overruled. To which action of the Court the defendant by counsel excepted. And thereupon the plaintiff by counsel moved the Court to set aside the said Yerdict be~ause the damages assessed \Vere inadequate and to enter up judgment for the plaintiff in the sum of Six hundred and forty-five dollars, which motion the Court overruled. . ·

Therefore it is considered by the· Court that the plaintiff recover against the defendant the sum of Four· hundred dollars with interest thereon to be computed after the rate of six per centum per annum from the second day of July, 1926, until paid and its costs by it about its suit in this behalf expended.

Memorandum: Upon the trial of this case the defendant, by counsel, excepted to sundry opinions of the Court given against it. and on its motion leave is hereby given it to file bills of exceptions or certificates of exception herein at any time within sixty days from this date.

page 12 ~ . Upon the further motion of the defendant, by counsel it is ordered that the judgment this day

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--~-----~------

Southern Railway Co.· v .. Burton & Briel; Inc. . 35

J.•endered in this case be suspended for a period of ninety ~

days from this date in order to enable the said defendant to .apply for a writ of error and supersedeas upon condition tbat said defendant or some one for it enter into bond before the .Clerk of this Court in the penalty of Two hundred .dollars ~ith surety to be approved by said Clerk and conditioned aceording io law within fifteen days from this date.

page 13 } Virginia, In the Law and Equity Court of the 'City of

llichmond .

. .Burton & Briel, Incorporated, Plaintiff, ·v.

Southern Railway Company, Defen~ant.

DEFENDANT'S BILL OF EXCEPTIONS NO. 1.

Be it remembered that upon the trial of this case and after the jury had been sworn to try the issue joined therein; the plaintiff and the defendant to maintain the issue on their respective parts introduced before the jury testimony with ex'hibits thereto designated plaintiff's Exhibit A, plaintiff's Exhibit B, plaintiff's Exhibit .C, plaintiff's Exhibit No. 4, Plaintiff's Exhibit No. 5, plaintiff's Exhibit No. 6, Exhibit No. 7,

_ Exhibit No. 8, Exhibit No. 9, and Exhibit No. 10, all of which said exhibits were introduced by and on behalf of the plaintiff, and exhibits designated defendant's Exhibit No. 1, defendant's exhibit No. 2, and defendant's Exhibit No. 3, _which were introduced by and on behalf of the defendant, which testimony and exhibits are as follows:

page 14 } In the La'v & Equity Court of the City of Richmond.

Burton & Briel, Inc., . vs. Southern Railway Company.

July 1, 1926. ·

Present: Honorable F. T. Sutton, Jr., Judge Presiding; J. T. Bethel, Esq., L. C. 0 'Connor, Esq., Counsel for -the Plaintiff; W. P. Marks, Jr., Esq., Counsel for the Defendant . .

_36 Supreme Court of Appeals of Virginia

Plaintiff introduced ~he depositions of

K. W. MacDonald, L. E. Delaney.

page 15 } Deposition of

K. W. ~IcDONALD,. taken on behalf of the Plaintiff, on September 30th, 1926.

K. W. McDONALD, a 'vitness of lawful age, after first being duly sworn, deposes and says:

Q. What is your name, age and residence and what is your co1mection with the firm of McDonald and Son?

A. 1{. \V. McDonald, age 42 years-I reside at Santa Cruz, Cal., and am the sole proprietor and owner of MacDonald & Sons. '

Q. How long have you been in the business of growing, ·l,oxing and shipping fruit and produce and particularly apples~

A. 25 years. Q. State if you know anything about car of apples So. R.

W. 122243 shipped by McDonald and Son, Watsonville, California, to Burton and Briel, Incorporated, Richmond, Virginia, October 4th, 1923 Y

A. Yes. I personally supervised the packing and shipping of this car of apples.

Q. State if you know the condition of said apples at the time they were delivered by McDonald & Son, the shipper to

-the Southern Pacific Railroad Company, which carrier issued the bill of lading dated Octo her 4th, 1923.

A. Yes. They wrre of excellent quality and condition, hard and firm and of good keeping quality.

Q. State any other facts that you kno'v in connection with this car of apples that may throw any light upon this case.

A. The apples were Newto\vn Pippin variety, California fancy grade- and of excellent quality and condition. It was mountain fruit grown in a district noted for raising apples

· of exceptionally good keeping quality. ·

J(. W. MAcDONALD.

L '

\.

I

\/ Southern Railway Co. v. Burton & Briel, Inc.

page 16 ~ Deposition of

L. E. DE LANEY, taken on behalf of the Plaintiff, on September 3oth, 1925.

L. E. DE LANEY,

37

a witness of lawful age, after being duly sworn, deposes and says:

Q. Wha.t is your name, age and Residence? A. Louis E. DeLaney-43-Watsonville. Q. Are you or have you have ever had any connection with

the firm of MacDonald & Son? A. No. Q. What is your business~ A. ·Orchardist. Q. What business were you engaged in on October 5, 19231 A. State Apple Inspector. Q. How long have you been in the business of inspecting

fruits and vegetables and particularly apples 7 A. Seven Years. Q. Did you have occasion to inspect a car of apples for

MacDonald & Son on Octiher 5, 1923, such car being designated as Southern R. W. 122243?

A. Yes. Q. Did you personally inspect that ca.r of apples? A .. Yes. Q. State in detail the condition of the apples in that car

on that date when they 'vere delivered by MacDonald & Son to the railroad company ~

A. Apples were of good quality, and in excellent shipping condition.

Q. Uid you know at that time to whom the car of apples was to be shipped T

A. No. Q. State any other facts in connection with this car of ap

ples which may thro'v any light upon the condition of the apples or their keeping quality?

A. Ca.r of apples in question were in good condipage 17 ~ tion at time of shipment and should keep in stor

age as long as any Newtown Pippin Apples grown in this locality.

LOUIS E. DELANEY.

--------------------------------------------~ . -~----

38 Supreme Court of Appeals ·of Virginia

page 18 ~ W. E. BURTON, sworn on behalf of the plaintiff, testified as fol-

lows:

DIRECT EXAl\fiNATION.

By Mr. Bethel: · Q. Please state your name and business to the _jury?

A. W ~ E. Burton, Secretary and Treasurer, and General Manager of Burton & Briel, Incorporated, wholesale fruits. and produce. ·

Q. Are you experienced in the handling of fruits and vege-tables.

A. Yes, sir. Q. How many years have you been in the business¥ A. I have been in business myself for ten y~ars, and be

fore that time I ·worked for Crovo & Orensha'v for about seven years. ·

Q. How long have you been handling apples for export Y A. The same length of time. Q. You have had seventeen years in the "game"Y A. Approximately that, it might be a year or two over. Q. Your Company is the plaintiff in this case, as I under-

stand Y • A. It is, yes, sir. Q. I hand you a bill of lading. Was that shipment of ap

ples made to you? A. Yes, sir. Q. When did you first see that car of apples~

A. When it arrived in Richmond. page 19 ~ Q. Where did you examine it Y

A. On Virginia Street, Southern Railway yards. Q. Did you examine the car and also the contents 7 A. Yes, sir. Q. Under what conditions were the apples in that car to

be carried? A. Standard ventilation. Q. When you saw the car down there was it under stand

:ird ventilation~ A. No, sir. Q. Will you tell the jury what "Standard Ventilation"

means, and in what respect this car failed to be under standard ventilation?

A. Standard ventilation for a carload of apples would require that all vents be open; in fact, all the ventilators in the


car should be open, unless the temperature went below freezing; then they should all be closed.

Q. What kind of weather was it when you inspected this carY

A. Warm weather. Q. It was not freezing! A. No, sir. Q. In what respect was the car not being properly ventil-

. atedY · A. All the ventilators were not open. Q. Do you remember which were closed¥ A. Having refreshed my memory from the p~pers-there

were two end vents closed, and one solid door. page 20 ~ Q. I will ask you to introduce in evidence that

bill of lading, as "Plaintiff's Exhibit "A". A. I herewith file the bill of lading as requested.

Note: The paper introduced as "Plaintiff's Exhibit "A" was in the following words. and figures, to-wit:

/

Southern Railway Co. v. Burton & Briel, Inc. 41.

page 21 } PLAINTIFF'S EXIDBIT A

5-24-24 100 M D 11704 Form 850

Uniform E>omestic Straight Bill of· Lading Adopted by Carriers in Official, Southern and Western Classification Territories, March 15, 1922.

UNIFORM STRAIGHT BILL OF LADING Shipper's No ........................ .

(Prescribed by the Interstate Commerce Commission)

ORIGINAL-NOT NEGOTIABLE Agent's No.·---················-···

SOUTHERN PACIFIC COMPANY Received, subject to the classifications and tariffs in effect on the date of the issue of this Bill of Lading,

at ........ \Vatsonville, California ........................................................................................................................................ October 4, .................................................. 1923

from ........ l\lacDonald & Sons ................................................................................................................................................................................................................... .

the property described below, in apparent good order, except as noted (contents and conditiop of contents of packages unknown), marked, consigned, and destined as indicated below, which said company (the word eompany being understood throughout this contract ns meaning any person or corporation in possession of the property under the contract) agrees to carry to its usual phice of delivery at said destination, if on its own road or its own water line, otherwise to deliver to another carrier on the route to said destination. It is mutually agreed, as to each carrier of all or any of said property over all or any portiop of said route to destination, and as to each party at anv time interested in all or any of said property, that every serv1ce to be performed hereunder shall be subject to all the conditions not prohibited by law, whether printed or written, herein contained, including the conditions on back herecf, which nrc hereby agreed to by the shipper and accepted for himself and his assigns.

(Muil or street address of consignee-For purposes of notification only.)

Consigned to ........ MacDonald & Sons-advise-Burtin & Briel, Inc., ..... _ ........................................................................................................................................ . Destination ........ Richmond. __ ............................................................ ." ................. State of ........ Virginia _______________ ............................ County of ............. -........................ .

Route ........ S. P. U. P. Frisco, Southern at Memphis ............................................................................................................................................................................. .

.................................................................. Southern .................................................................. Car Initial. ....... So. ll.. ' '7 ........................... Car No ..... 122243 ................. .

(Delivering carrier)

No. *Weight Description of Articles, Special Marks and Exceptions

Packages (Subject t.o Correetion)

Clnss or

Rate

If this shipment is t.o be Check delivered to the consignee

without recourse on the conColumn signor, the consignor shall sign

_____ 1 ______ the following statement:

The carrier shall not make ........ 840 .......... bxs. Newtown Pippins ............................................................. ~ .......................................................................... delivery cf this shipment with

out payment of freight and .......................................................................................................................................................... : ............................................ nil other ln\vful chnrges. (See

· sertion 7 of corulitions.) .......... _. ......... ····295- 3 Yz .................................. · ........................................................................................................ ················ .............. .1\tlacDonald & Sons .......... ..

.................... .... 545-4................................................................................ ............................................ .................... .................... (Signature of consignor)

........................ STANDARD VENTILA1'ION ........................................................................................................................................... I{. \V. i.\1 .................... .

.................... ................................................................................................ SOlJTHI~RN RAJL\,TA "f COMP.A N'\' ............. . If cha?ges are to be prepaid,

........................................................................................................................... Genl. Frci.~ht Clnim Agent, ........................... p~~~aid~' stamp here, "To be

......................................................................................................................... Chattancc!!s, Tenn ................................................................................................. ..

........................................................................................... : ........... No. 5523'::4 ......................................................... ===========

-, ........................ (Piaintif!'s Exhibit "A")................................. ................. -- ·· ········· ··················· ··············· ·· ~:cc!~~~:Jti~j~f,~Y~~~~:~t!. .................. ·· ........................................................ .. ......................................................................... ······ ...... ··········· ··· .................... described hereon .

.............. ...... ···· ····· ................................... :····--·--------------··--···--·--··--------................. ······· ········· ···· ······· ... · ·· .................... ······--···:···· · .. · · ············- ·· ·· ···· ···A.·ii;~~-i-~~--c~~;;i~~---

................................................................................................................................................................ ! ........................................ Per.-................................................. .

*If the shipment moves between two ports by a carrier hy water, the law requires that the hill of ladimr shall state whether it is "carrier's or shipper's weight."

NoTE.-\Yhere the rate is dependent on vulue, shippers nre required to state sperifically in writin~ the agreed or declared vnlnc of the property.

The agre:ed or declared value of the pr.:>perty is hereby spcdf.icnlly stated hy the shipper to be not exceeding

.............................................................................................. per ............................................................................................. .

(The signature here acknowledges only the ammmt prepaid.)

Charges Advanccrl:

$ ...................................................... .

........ 1\iacDonald & Sons __________ ............................................................ Shipper ........................ So. Pnc. Co ............................................................... Agent

Per ........ J{ W 1\1............................................................................................ Per ............ Received ........................................................................... . 1 Permanent post-office address of shipper·---····-··············--·----···--··············: .................................................... Oct. 4, 1923 __________ .......................................................... ..

R. H. Davis, Agent

42 Supreme Court of Appeals of Virginia •

CONTRACT TERMS AND CONDITIONS Sec. 1· (a) The carrier or party in possession of any of the property herein described shall be liable as at common law for any loss thereof or damage thereto, except as herein-

after proVIded. . . (b) No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto or delar caused by the act of God, the

public enemy, the authority of law, or the act or default of the shipper or owner or for natural shrinkage. The carrier's liability shall be that o warehouseman, only, for loss, damage, or delay caused by fire or.curring after the expiration of tlie free time allowed by tariffs lawfully on file {such free time to be" computed as therein provided) after notice of the arrival of the property at destination or at the port of export {if intended for export) has been duly sent or given, and after placement of the property for delivery at destination or tender of delivery of the property to the party entitled to receive it,. has been made. Except in case of negligence of the carrier or party in possession (and the burden to prove freedom from such negligence shall be on the carrier or partr in possession), the carrier or party in possession shall not be liable for loss, damage, or delay occurring while the property is stopped and held in ~ransit up!>n the request of the sb1pper, owner, or party entitled to make such request, or resulting from a defect or vice in the property, or for count.ry damage to cotton, or from nota or stnkes. •

(c) In case of quarantine the' property may be discharged at risk and expense of owners into quarantine depot or elsewhere, as required by quarantine regulatioM or authorities, or for the carrier's dispatch at nearest avliilable point in carrier's judgment, and in any such case carrier's responsibility shall cease when property is so discharged, or property may be returned by carrier at owner's expense to shipping point, earning freight both WSY!J. Quarantine expenses of whatever nature or kind upon or in respect to property shall be borne by the owners of the property or he a lien thereon. The carrier shall not be liable for loss or damage oecaaioned by fumigation or disinfection or other arts required or donA by quarantine regulations or authorities even though the same may have been done by carrier's offir.ers, agents, or employees, nor for detention, loss, or damage of any kind occasioned by quarantine or the enforcement thereof. No carrier shall be liable, except in case of negligenre, for any mistake or inaccuracy in any information furnished by the carrier, its agents, or officers, ll8 to quarantine laws or regulations. The shipper shall bold the carriers h~rmless from any expense ther may incur, or damages they may be required to pay, by reaaon of the introduction of the property coverE'd by this contract into any place against the quarantine laws or regulations m effect at such place.

Sec. 2. (n) No carrier is bound to transport said property by any particular train or vessel, or in time for any particular market or otherwise than with reasonable dispatch. Every carrier shall have the right in case of physical necessity to forward said property b~ any carrier or route between the point of shipment and the point of destination. In all cases not prohibited by law, where a lower value than actual value has been represented in wrltin~~: by thn shipper or has been arcreed upon in writing as the releMed value of the proporty as determined by the classification or tariffs upon which the rate is based, such lower vafue plus freight charges if paid shall be the maximum amount to be recovered, whether or not such loss or damage occurs from negligence. •

(b) Claims for lflss, damage, or injury to property must be made in writing to the originating or delivering carrier or carriers issuing this bill of lading within six months after delivery of the property (or, in r.n.'IC of export traffic, within nine months after delivery at port of export) or, in case of failure to make delivery, then within six months (or nine months in case of export traffic) after a reasonable time for delivery has nlansed; provided that if each los.<J, damage, or injury was due to delay or damage while being loaded or u~loaded, or damaged in transit by ~arelessness or negligence, then no notice of.elaim nor filing of claim shall be re:Juired as a condition precedent to recovery. Suits for loss, damage, inJury, or delar shall be instituted only \\itbin two ~ears and one day after delivery of the propPrty, or in cnse of fa~ure to make delivery, then within two years and one day after a reasonable time for delivery hns elapsl'd: Provided, That in case the claim on which suit is based was made in writing within six months or nine months in case of export traFfic (whether or not filing of suoh claim is required as a condition precP.dent to recovery), suit shall be instituted not later than two years and one day after notice in writing is given by the carrier to the claimant that the carrier has dis!lllowed t.hf.> claim .>r any part or parts thereof specified in the notice. .

(c) Anr carrier or party liable on account of loss of or damage to any of said property shall have the full benefit of any insurance that may have b~en effected upon or on ac-count of s111d property, so far as this shall not avoid tho policies or co'ltracta of insurance: Provided, That the carrier reimburse the claimant for the premium paid thereon. .

Sec. 3. Except where such service is required as the result of carrier'a negligence, all property shall be subject to necessary cooperage and baling at owner's cost. Each can:1er over whose route cotton or cotton linters is to be transporte:l hereunder shall have the privilege, at ita own cost a'ld risk of c:>mpressing the same for greater convenience in handhng or forwarding, and shall not be held responsible for deviation or unavoidable dPlays in t)rot.l:tring such compression. Grain in bulk consigned to a point where there is a railroad, public or licensed elevator, may (unless othern;se exprCBSlY noted herein, nnd then if it is not prom?tly unloaded) be there delivered and plaeed with other grain of the same kind and grade without respect to ownership {and prompt notice thereof sh:dl be given to the consignor), and if so delivered shall be subject to a lien for elevator charges in addition to all other charges hereunder.

Sec. 4. (a) Propl-.rty not rt'moved by t.hc party entitled to rPceive it within the free time allowed by tariffs, lawfully on file (snch free time to be computed as therein provided) after notice of the arrival of the property at destination or at the port of expnrt (if intended for export) bas been duly s~nt or give'l, and after placement of the property. for delh·ery at destination has been marie, may be kept in vessel, car, depot, warehouse or pla!!e of delivery of the carrier, subject to the tariff charge for storage and to carrier's responsibility as warehouseman, only, or at the option of the carrier, may be removetf to and stored in a public or licensed warehou.<Je at the place of delivery or other available place, at the cost of the owner, and there held without liability on the part of the carrie'.", and subject to a lien for all freight and other lawful charges, including a reas::mable charge for storage.

(b) Where nonperishable property which· has been transported to rJestination hereunder is refnsad by consignee or the party entitled to receive it, or said consignee or party ent.itled to receive it fails to receive it within 15 days after notice of arrival shall have heen duly s:mt or give'!., the carrier may sell the same at public auction to the highest h1dder, at such place. as may be designated by the carrior: Provided, That the carrier shall have first m'lilerl, sent, or given to the consignor notice that the property has been refused or remainfl uncla~ed, as the case may be, and that it will be subject to sale under the term.'! of tho bill of lading if disposition he not arrange:! for, and shall have published notice containing a descnption of the property, the name of the partf to whom consigned, or, if shipped order notify, the na-ne of the party to be notified, and the time and pb1ce of sale, once a week for two sUCf.essiVe weeks, in a newspaper of genera circulation at the pl!U'.a of sale or nearest place where such newspaper is publisheJ: Provi:led, That. 3:> days shall ba\·e elapsed before publication of notice of sale after said notice that the property was refused or remains unclaimed was m!lile:l, B9nt, or given.

(c); Where perishable Property which has been transported hereunder to destination is refuse:l by ce~nsit~nee or narty entitlerl to receive it, or said consignee or party entitled to receiVe it shall fail to rece1ve it promptly, the carrier mav, in ita discretion, to prevent deterioration or further deterioration, sell the same to the best ad\•antage at private or public s~~;l~: ProvidE'd, That if time serves for notifieRtion to the cons'gnor or owner of the rafusal of the property or the failure to receive it and request for disposition of the property, such not:tf1cnt10n shall be given, in such manner ns the cxeroiRe of due diligence requires, before the property is. sold. .

(d) Where the procedure provided for in the two paragt:aphs last pr<lceding is not pOSSibl'!, it is agreed that nothing contained in said paragraphs shall be construed to abr1dge the nght of the carrier at ita option to sell the property under such circumstances and in such manner as m:1y be authorize:l by law. ·

{e) The proceeds of any sale made under this section shall be applied by the carrier to tne payment of frc:!(ht, demurrage, st:>ra~e. and any other lawful charges and the expense of notice, advertisement, sale, and other necessary expen.<Je and of caring for and m!lintaining the property, if proper care of the s.\!11:! re=tuires special expense, and should there be a balance it shall be paid to the owner of the property sold hc:reunder.

U> Property destined to or taken from a station, wharf, or landing at which there is no regularly appointed froight a!Jent shall be entirely at risk of owner after unloaded from cars or vessels or until loaded into cars or vessels, and except in case o! carrier's negligence when received from or delivered to sacb stations, wharvPs, or landings shall be at owner's risk until the cars are attnohed to and after they are detached from locomotive or train :,.r until loaded into and after unloaded from vessels.

Sec. 5. No carrier hereunder will carry or be liable in any way for any docum9nta, s?ecie, or for a'ly artbles of extra:>rdinary value not specifically rated in the published classifications or tariffs unless a specinlagreement to do so and a stipulllted value of the artirles are indorsed hereon.

Sec. 6. Every party, whether principal or agent, shipping explosives or dangerous goois, without previous full written rlis~losure ·to the carrier of their natur'!, shall be liable for and indemnify the carrier against all loss or damage caused bv such goods, and such goods mav be warehoused at owner's ris~c and expense qr destroyed without compensation.

Sec. 7. Thn owner or consignee shall pay the freight and a\·er.tge, if any, and all other lawful r.hargps accruing on said property; but, except in those instances where it may lawfully be authorized to do so, no carrier by railroad shall deliver or relinquish possession at destination of the property covered by this bill of la:tiog unt.il all tariff rates and charges thereon have been paid. The consignor shall be liable for the freight and all other lawful char>tes. except that if the consignor stipulates, by slgnnture, in the space provided for that purJ>Ose on tho face of this bill of lading that the carrier s .. all not make rlt!liVf~ry \vithout re1uiring pavm3nt of such charges a'ld the carrier, contrary to such stipulation, shall make delivery without requirillg such payment, the ronsignor shall not be liable for such ohar~~;es. Nothing herein s'lall lim!t tlte right of the carrier to require at time of shipment the prepayment or guarantee of the chargps. If upon inspection it is ascertRined that the articles shipped arc not those described in this bill of laiing, the freight charges must be paid upon the articles actually shipped. ·

Sec. 8. If this bill of lading i.<~ issued on tho order of the shipper. or his agent, in eltl.lhnniJe or in substitution for a'lother bill of lu.tlin~;, the shipper's signature to the prior bill of lading as to the statement of value or otberv.ise, or eloction of common law or bill of hding liability1 in or in connection with au::h prior b.ll of laJing, shall. bo considered a part of this bill of ltvling as fully as if the same wore writ.t.en or made in or in C'onnection with this l:iill of ladmg.

Sec. 9. (a) If 11;11 or any P.nr~ !'f said p~oper~y is carried by water over anv psrt of S"lid route, s tch water c<1rring2 sball.be oerform3i _subj~?t to all the .terms and pr~visi'?ns of and all the exemphom from liability contamcd m, the Act of the Congress of the Untt.i!d States, a:>;>roved on February l:l, 1891, an:J entitled An act relatmg to the nav1gatlon of VCSIK'ls, etc./' and of other statutt>s of the United States according carriers by water tho protection of limited liability, and to the r.otditions containcj in this bill of lading not inconsistent tnerewith or with this section.

(b) No such cnrrier by wnt.er shall be liable for any loss or damage resulting from any fire happaning to or on boar:l the vessal, or from explosion, bursting of boilers or br03kagc of shafts, unless caused by the design or neglect of such carrier.

(oJ if diu cih w slndt tmou uxaai&Sd dUe dillgem !fa lli&ktag ttm=m=1tAHFFISOJ/la:ltim&J..f.FiilliJHSR>pely miitiil6!l .. =eq\dJipmt;.wut:wBUpiittud; w stwh uaniez ehail bu liable for any loss or damage resulting from the perils of the lakes, seas, or other watonr, or from Intent defects· in hull, machinery, or appurtenances whether existing prior to, at the time of, or after sailing, or from collision, strandin", or other accidents of navigation, or from prolon~tion of the voyage. And, when for any rt>.a.s:>~ it is necessary, any.vessel carrying any or all of the property herein described shall be at liberty to call at any port or porta, in or out of the customary route, to tow and be towed, to transfer, trans-ship, or lighter, to load Rlld discharge goods at. an~ time, to assist vessels in distress, to de\'lSte for the purpose of s<tving life or prop!rty, and for docking and repairs. Except in case of negligence such carrier shall not be resPQnsible for any loss or damage to property if it be n~nry or is usual to carry the same upon deek. ·

(d) General average shall be payable according to York-Antwerp RulE'.s, 1890, and, as to any matter not therein provided for, acoording to the law and usage of the port of New York. If the owners shall have exercised due diligence to make the ves8el in all respects seaworthy nnd properly manned, equipped, and supplied, it is hereby agreed that. in case of danger, damage, or disaster resulting from faults or errors in nnvigntion, or in the management of the vessel, or from any latent or other defects in the vessel, her machinery or appurtenances, or from unseaworthines.<J1 whether existing at the time of shipment or at the beginning of the voyage (provided the Intent. or other defects or the unseaworthiDI.~ss was not discoverable by the exercise of aue diligence), the shippers, consignees and/or owners of the cargo sbllll neverthelE'SS pay salvage and any special charges incurred i~ respect of 'the cargo, and shnll contribute \\ith the ship owner in general average to the payment of any sacrifices, lossP.s or expense.<J of a general average nature that may be made or mcurrod for the common benefit or to relieve the aiventure from any common peril. .

{e) If the property is being carried under a tariff which provides that any carrier or carriers party thereto shall be liable for loss from Pt'rils of the sea, then as to such carr1er or carriers the provisions of thi~ section shall be modified in accordance with the tariff proviaions, which shall he regarded as incorporated into the conditions of this bill of lading.

{f) The term "water r.arriage" in this section shnll not. be construed as including lighterage in or across rh·ers, harbors, or lakes, when performed by or on behalf of rail carriers. Sec. 10. Any altE-ration, adrfition, or ernsure in this· bill of lading which shall be made without the•s;>ecial notation hereon of the agent of the carrier issuing this bill of lading,

shall be without effect, and this bill of lading shall be enforceable according to its original tenor.

-,--1

Southern Ra~lway Co. v. Burton & Briel, Inc. 45

page 22 } Q. Did the Southern Railway render you a bill for the freight on that shipment?

A. It did .. Q. (Witness is here handed a paper). Do you recognoze

that? A. This is the freight bill we paid on the shipment. Q. How much did you pay? .l\. $634.42. Q. Was there any demurrage on the car ~ A. Not to my knowledge.

Mr. Bethel: I will-ask you to file that freight bill as "Plaintiff's Exhibit B".

Note: The paper filed as "Plaintiff's Exhibit B" as in the following words and figures, to-wit:

---------

Southern Railway Co. v .. Btirton & Briel, Inc. 47:

page 23 ~ . PLAINTIFF'S EXHIBIT B.

See Inst~uctions on Back and Comply Therewith FREIGHT BILL .

Form 1649-T 8-25 Printed. in U. S. A.

To SOUTHERN RAILWAY COMPANY, Dr., for charges ~n Articles transported:

Consignee MAC DONALD & SONS

Destination ADVISE BURTON & BRIEL INC

Route RICHMOND VA-

(Point of Origin to Destination)

Street Address

Way-Billed From Way-Bill Date and No.

5991 MEMPHIS TENN 10 15 2 3 2305

·-··-

Richmond, Va., ... ---··························-------·---·-------·········----·--········192 ....... -

10 20 23 G Freight Bill No. 5459

tFull Name of Shipper Car Initials and No.

MACDONALD & SONS SOUTHERN 122243

Point and Date of Shipment Conn. I.ine Reference Previous '\Va.y-Bill Reference Original Car Initials and No.

FRISCO PRO 7418 10 15 23 WATSONVILLE CAL

Number of Packages, Articles and Marks

840 Bxs Green.Apples

Standard Ventilation at Request on Behalf of Sh~pers of Maker B/L Consents to and Assumes All Liability foJ: Dely of T is .hipment without surrender of B/L if Shippers Written Order to do so is Present to Deliver Carrier SlippeD 10 20 23 VaSt TT

·-·

RecP.ived Payment .... -----·································· ....................................................... ·················································· ............................... .Agent

*For use at ,Junction Points on Freight, subject to connecting line settlement. fSee Rule 9.

SP 35 10 4 23

Weight Rate Freip;ht Advances Total

42295 106-5 450 44 43'-5 183.98 Southern Ra ilroad

R.ichmond Va. .............................. D.P. Tho mpson, Agent

150 PAID Qct 30 19 23

*Total Prepaid, $.-.....................................

----·---Total 634-42

Gcnl:'ral Freight Claim Agent Chattanooga, Tenn.

No. 552334

48 . . Supreme Court of Appeals _of Virginia

RULES

1. This form must be prepared with typewriter, pen or indelible pencil; all information called for to be shown in full and-in a clear and legible manner.

2~ Weight, rate and charges must be shown in detail for less carload shipments.

3. Demurrage, switching, icing or other miRcellaneous charges not included in the rate for transportation, must be stated in detail, and the points at which such charges accrued, shown.

4. When charges are assessed on track scale weights, gross, tare and_ net weights on which charges are based and name of weighing station, must be shown.

5. The route over which the shipment moved from point of origin to destination, includinu; the initials of each carrier and name of each connecting line junction point, must be shown.

6. Overcharges will be refunded only on presentation of original paid freight bills.

7. Original paid freight bills should accompany claims for overcharge, loss or damage. .

8. All freight will be subject to demurrage or storage. charges or both, as provided in published tari~fs.

9. In case a shipment be reconsigned in transit by the original consignee, the name of the original shipper, the original shipping point or the route up to ~econsi~ng point. must not be shown, except by the consent of the oriJrinal or mtermed1ate cons1~ee. (1. C. C. Rule 5518.)

-----~----------------~-----------

Southern Railway Co. v. Burton & Briel, Inc. · 51

page 24 ~ Q. Did you file a claim with the Railroad Company for the damage you sustained on this car i

~~~ w

Mr. ¥arks: There is no issue about their having filed a claim. What counsel are trying to do-

The Court: That is admitted for the purpose of showing tha.t . they did file a claim.

~lr. Marks : There is no dispute ·about that. That is in the record.·

Mr. Bethel: I will withdraw the _paper on the understand-ing that it has be.en agreed by counsel that a claim w.as made.

Q. How many boxes of apples were in this car 7 A. 840. Q. About that freight bill-what day did it arrive in Rich-

mond? A. Tenth month, twentieth day, 1923. Q. That is October 20th, 1923? A. Yes, sir. Q. You say you examined the shipment in that car~ .A. Yes, sir. . ·Q. Did you make up an inspection report on the carY A. Yes, sir. Q. I will ask you if this is the inspection report 7 (Wit-

ness is here handed a paper.) · A. It is, yes, sir.

page 25 ~ Mr. Bethel: I will ask you to enter that as "Plaintiff's Exhibit 0".

Mr. Marks: I object to it on the ground that it is a self-serving declaration. The witness is here, and the most he _can do is to refer to it to refresh his memory.

The Court: Objection sustained. He can speak of his own knowle<!ge, after r_efreshing his memory from that paper.

Mr. Bethel: We note an exception.

Q. On what day did you make the inspection Y A. After refreshing my memory from the paper, lOth

month, 2oth, 1923. Q. What was the condition of the apples in that car i .A.. Having refreshed my memory from this paper, some

of the boxes were broken and robbed, and the apples seemed to be too ripe for storage. .

Q. What was the condition of the ,load in the car? A. The load was shipped solid, and had buckled. Q. Explain to the jury how it was when you examined it 7 A. The apples had been handled so roughly that they had

risen up in the middle.

5.2 Supreme Court of Appeals of Virginia

Mr. Marks: I object to the witness stating how the apples had. been handled ; he has no personal knowledge of the handling of the shipment.

The Court: He can state the condition in which page 26 } he found them, and then if he qualifies as an ex

pert he can state the cause. Witness: I found they had risen up in the middle, and

some of them buckled. · Mr. Bethel: I don't think I could prove any better than I

have already that this witness has qualified as an expert; he has testified that he has been in the business for seven. teen years.

Q. About how many cars of perishable do you handle a year·?. ·

A.: About twelve hundred cars a year.

The Court: If he knows what is the usual cause of buck-1 ing he can state.

TVlr. Marks: If the Court please, I would like to point out that the issue in this case as to the 14 crates is the cause which resulted in the damage; to permit this witness to state that it was from one cause, or another, is to usurp the function of the jury. He can state what he found, but the rlury is here to determine the cause; and that is my objection to the question.

The Court: lie can state as an expert the cause that produced tl1at, and the jury may follow him or not.

~1:r. Marks: So far as expert testimony is conpage 27 } cerned that is limited to things which a jury may

not determine from their knowledge of the circumstances as shown in the evidence. In other words, expert testimony is directed to issues beyond the knowledge of the layman, and in which the testimony of a specially trained mind is required, on a hypothetical case, which I submit can not be the case here. Here we have a simple proposition, and the witness can testify what the facts are, but I most respectfully urge that he should not be permitted to indulge in conclusions and attempt to state, himself, 'vhat the probable cause is, when the jury are here to determine that.

The Court: He did not attempt to state the probable cause, but as I understand he stated what was the cause.

lVlr. Marks: I note an exception, if your Honor please. 1\{r. Bethel : Go ahead. You were speaking of the buckling

of the case. Witness : My experience ha·s been that a carMr. Marks: I object. The Court: Objection overruled.

\


Mr. Marks: Exception. ~itness :-that a car of apples buckling in this

page 28 ~ way is brought about by rough handling. .

Q. Will you state whether or not this car was properly loaded, at the point of origin Y

Mr. Marks: I object. He can state how he found it. The Court: He can state the conditions he found.

A. The condition I found it in would indicate that it was properly loaded.

Q. How was the car loadedY A. This car was loaded in the customary way of loading

apples.

:h{r. Marks : I object to tlie answer and move that it be stricken out.

The Court: It is excluded. Mr. Bethel: We except. Q. Was the car loaded solid or was there a bracing in the

car? Was it the character of" car that required bracing, or ·was it loaded solid!

A. It was loaded solid.

1\-Ir. ~{arks: I _object to the question and answer, on th~ ground that the question was leading.

The Court : The objection is overruled. I will suggest to counsel, in order to save time, that he do not frame his questions so they will be leading.

page 29 ~ Q. As an expert, does a car that is -loaded solid require any bracing!

A. No, sir. Q. It requires no bracing 7 A. No, sir. Q. From the United States Government Inspection Report

of this car at Watsonville, _California, how was it loaded~

Mr. Marks: I object to the question. The Court! The report speaks for itself. It can be read

to the jury. . Mr. Bethel: I mean by that, was the car properly loaded

in the beginning? Mr. Marks : I object. The Court: Objection sustained. Mr. Bethel: Exception.

Q. Just read that report. A. With reference to the load-or the entire r-eport.

. Q. The entire report.


(Note: The witness here read to the jury the following paper:) ·

page 30 ~ EXHIBIT #4.

U. S. DEPT. OF AGRICULTURE

State of California

Food Products Inspection Certificate.

· Loading· and Inspection Point: Watsonville, Calif. Date Oct. 5, 1923.

To McDonald and Sons. Addre.ss : Watsonville, Calif. Shipper-McDonald and Sons. Address-Watsonville,

Calif. Car Initials and Number-Sou. 122243 Kinf of Car. Ven

tilated Box Products inspected and distinguishing marks: ·

APPLES, Shippers' -load ·and count 840 boxes Fancy Newton Pippins, boxes labeled "Redwood Brand, MacDonald & 8ons Watsonville, Santa Cruz Co., Calif~'.'

Condition of load and containers: Loaded entire length of car 19 stacks, 5 layers high, 5

stacks, 4 layers high; all 8 rows 'vide; alternate and top layers stripped.

Condition of Pack : Tight . . Sizing: Slightly irregular throughout load. Quality and c~ndition: Apples are of a fine quality, in a

hard condition and practically free from defects affecting grade. Color, grade, remarks: Apples are from a green to ye1lowish green color and grade Fancy. ·

L. E. DE~ANEY, Inspector.

page 31 ~ Q. When you inspected that car in Richmond was it loaded in the manner stated upon the gov

ernment report Y A. Yes, sir.

·Mr. Marks: I object to the question as leading. . I don·'.t see why I shoulg be forced to make that objection repea"tedly.

The Co.urt: Objection overruled. Mr. Marks: Exception.

Q. Does a car loaded in that manner require any· bracingY A. No, sir. · Q. Going back to that buckling of the car, is it possible

for a car to buckle without doing damage to the contents~

Mr. Marks : I object to the question, on the grQund that it

l I

\

Southern R~ilway Co. v. Burton & Briel, ~c. 55

calls for a conclusion, or opinion of the witness as to various possibilities; he should be confined to the facts.

The Court: Objection overruled. Mr. Marks: Exception.

A. No, sir; I don't believe it would be possible to handle a car so rough as to make it buckle, without bruising the fruit.

Q. Was this fruit bruised f A, Yes, sir. Q. After you examined the car down there what did you

do with the carY page 32} A. I sold it to the Atlantic Fruit Company, ot

Miami, Florida. · Q. What did they do with it, do you happen to knowY A. We had it stored for them. Q. Your company stored it for them; where did you store

it! A. At the Richmond Cold Storage. Q. When the car got down there did you have it again in

spected~

A. Yes, sir. Q. By whom?

· A. By Mr. Hanson, an inspector for the Morehead Inspection Bureau.

Q. Did you see the apples down at the ·Richmond Cold Storage, yourself? · A. No, sir.

Q. You did not go down there~ .A. No, sir. Q .. What is that paper? (Witness is handed a paper.)

·A. This is an assignment of interest from MacDonald & Son, to ourse~ves, of the contents of this car.

Mr. ·Marks: I object to the introduction of the paper. Mr. Bethel : I would like to prove how he got it. The Court: Well, ask him where he got it.

Q. How did you get the paperY A. In a letter from MacDonald & Sons.

page 33} Q. I will ask you if you recognize the signature, or are you familiar with itY

A·. Yes, sir; we have done business with them for quite awhile.

Q. Do you recognize that as their signature 7 A. Yes; sir. Q. ·Please read it to the jury.

56 Supreme Court of ·Appeals -·of. Virginia

Mr. Marks: I object to the introduction, or reading to the jury of this paper, on the ground that it has not been prop .. cr]y proved.


-Mr. Bethel: I will ask you to file that paper as "Plaintiff's Exhibit 0", and read it to the jury.

Note: The paper filed as "Plaintiff's Exhibit C", filed by the witness, was read by him to the jury, and was in the following words and figures, to-wit:

page 34 } PLAINTIFF'S EXHIBIT C.

For and in consideration of the sum of One Dollar {$1.00) and other good and valuable considerations to the undersigned in hand paid the receipt whereby is hereby ·acknowledged. The undersigned sells, transfers, assigns and sets over to Burton and Briel, Incorporated, for its proper use and benefit, all interest in and to its claim and right of action against the Southern Railway Company, a corporation, and all connecting carriers and agents therein for loss ana damage to contents of car Sou. li2243 shipped October 4th, 1923, from Watsonville, Calif., to Burton and Briel, Incorporated, Hichmond, Virginia, together with the rights of action thereunder and does hereby give the said Burton and Briel, Incorporated, and its assigns full power and authority for its own use and benefit to ask, demand, collect, compound and receipt for the same or any part thereof.

In witness whereof, we }lave hereto set our hands and seals this 24 day of March# 1925.

MAcDONALD & SON, K. W. MAcDONALD.

page 35 .} Q. In whose name did you place these apples at the Richmond Cold Storage~

A. In our name. I Q. To ""'hom were they sold f A. Atlantic Fruit Company. Q~ If you sold them to the Atlantic Fruit Company why

was it you placed them in storage in you!l" 'Own name? A.. By storing a c-ertain, or anything over a certain quan

tity of apples, 've get a reduced rate, and we always give our shippers .and buyers the benefit of that wh-en possible.

Q. At the time of the arrival or offer of delivery t-o you by the Southern Railway of this shipment of apples, what was the market price of Newton Pippins of the character and

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quality that these were, in an undamaged ~ondition, if you know~

Mr. Marks: I object to the question, on the ground that it has not been .shown that there was any such market prtce; and. secondly, that it is not the proper method of proving a market price, by asking the witness the price.

The Court: Objection overruled. Mr. Marks : Exception.

Q. Are you familiar with the market price of Newton Pippin apples at that timet

A. Having refreshed my memory from the ,papers, it was $2.25 per box.

Q. What did you get for these applesf page 36 ~ A. We actually got $1.50 a box for them.

Q. Why did you sell them for $1.50, if the market price was $2.25 Y .

A. Because they were in a damaged condition. Q. What was the market price of the.se apples in a dam

aged condition, upon the day of· offer by the Southern Railway Company to Burton & Briel, Incorporated, at Richmond?

Mr. 1\{arks: I object. It certainly must be shown that there was a market price for damaged apples; and further·more, ·this witness is testifying that· he made an actual sale, at the best price he could get.

The Court: I think the actual sale is the proper ~ne. Mr. Bethel: We would like to get the answer on the record. The Court: All right. The jury will retire.

· (Note: Ont of the presence of the jury the question was read to the witness. The witness answered: '' $1.50 a box, the price at 'vhich 've sold them."

The Court: I see no objection to that price· going to the jury. . .

Mr. Marks: Well, there is, bec·ause I expect to show that he sold them for more t'han that.

page 37 ~ The Court : Well, then, you can contradict him in the answer he gave there.

lV[r. Marks:- I objeet to the answer because it is not responsirve to the question.

The Court: Objection overruled.

-----·· -----------------------------


Mr. Marks: ~xception.

(Note: the jury were here brought back and took the seats in the box.)

Q. I will repeat my question: What was the market price of these apples in a damaged condition, upon the day of offer by the Southern Railway Company to Burton & Briel, Incorporated, at Richmond?

A. $1.50 a box, the price at which we sold them.

Mr. Marks: Your Honor understands we make the same objection Y

The Court: Yes, sir. The objection is overruled. Mr. Marks: Exception.

Q. Now will you tell the jury how you arrived at that $1.50?

A. We first thought we had them sold for $1.50 per box-

Mr. Marks: Now he has said $1.50 was the market price, and is going ahead to tell what he sold them for.


page 38 ~ Q. Go ahead T A. We thought we had them sold for $1,75 per

box, but when the man really saw how bad they were we had to reduce the price to $1.50.

Q. What was the price you filed with the railroad company? ·

A. $1.50 per box, which we actually received for them. Q. What would have been the result if you had not reduced

the price 25 cents? ·

Mr. Marks: If your Honor please, what bearing can that have on the caseY I object. ·

The Court: Objection ·sustained.

Q. Did you get $1.50 a box for the full 840 boxes~ A. No, sir. Q. I believe you said some had been robbed and some

broken-how many were robbed and how many broken? A. Our papers there show, 14, I think, I am not sure. Q. 14 broken?

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A. 14 broken and 5 robbed, I .believe. Q. And you sold the balance of them for $1.50 a box~ A. Yes, sir. _

\ Q. Had these apples arrived· in Richmond in good condi-1 tion, what would you have done with them, or did you intend

doing with them f A. They were shipped here with the intention of being

stored; we would in all probability have sold them and stored· them for the buyer, the same way we did. ..

page 39 } Q. Are they the same kind of apples usually marketed in October retail, for eating purposes!

A. They are mar:keted in October, but for storage purposes, not for immediate eating.

Q~ Do you know the color of Newton Pippin apples when green, or unripe 7

A. Well, a Newton Pippin apple is of a greenish yellow color.

CROSS EXAMINATION.

Bv Mr. Marks: "'Q. I understood you to say you handle about 1,200 car

loads of apples a year Y A. No, sir, 1,200 car$ of produce and fruits combined. Q. Have you any independent recollection of this particu

lar car of apples which moved ln Southern 122243, arriving here in October, 1923?

A. Yes, after refreshing my memory from t~~ pape~ there, I have.

Q. I say independently of the papers to which you refer have you any indepe.ndent recollection of this particular .shipment of apples t

Mr. 0 'Connor: If your Honor please, I object. He asked the question and I think the answer was responsive and a complete answer.

The Court: Objection overruled Mr. 0 'Connor: Exception.

page 40 } A. Yes, sir, in view of the fact that we only had two cars of Newton Pippins from California

that season. Q. What was the other car f A. A car from the same party. Q. Have you any idea when it arrived here 7 A. Not the exact date.


Q. Have you any idea whether you inspected the other car!

A. I think I did, yes, sir. Q. Do you know whether you did or not f r'(

_ A.. I think I did. Q. How do you know? A. I remember inspecting it. , Q. Do you remember where you inspected itf A. My impression is that it was at the same place. Q. I am not asking for your impression, but asking whether

you. know! . A. My memory is that I inspected it on the Southern yards,

the same as this one. Q. Did you not testify at the former trial of this case that

you had no independent recollection of this shipment, except -what you could get by referring to your papers, and have you not repeatedly stated to your counsel in your examination here that you could not tell without referring to your papers¥

A. I don't mean to say now that I could tell everything about the car, without referring to the papers.

Q. So you did not mean to tell the jury that inpage 41 ~ dependently of these papers you could tell about

this particular car which moved about three years ago~ .

A. I think I could tell some things about it, yes. Q. What could you tell Y A. I think I could remember the condition it arrived in.

Mr. Marks: Mr. Burton, I will ask Mt. Brown, who reported the former trial of this caset to read to you your tes-. timony upon my examination into your independent recollection of this particular car, and after he has done so I will

·ask you if that is not your testimony on the former trial. Now~ Mr. Brown, will you read itt

Mr. 0 'Connor: We object to the reading of any portion of the testimony on the other t:rial, not agreed to in this case .. The witness has uot answered the· question asked; he was not stated whether he recollected that he testified that way before~ or not.. He ean not be contradicted until he does deny that he testified that way; and I ohjeet, therefore, at this time, to the reading of any testimony given in the former case.

The Court: Objection sustained.

Q. I will ask you this question: Did ym!P not testify at the

Southern Railway Co. v. Burton & Briel, Inc.

former tria~ of this case that you had no independent recollection of this shipment, except what you could get by

page 42 ~ referring to your papers in this case, and have you not repeatedly stated to your counsel here in

your examination that you could not tell without referring to your papers?

A. To be pe1·fectly frank with Mr. Marks, he has &sked me so many questions at the last trial that I could not begin to remember them all.

Q. I ask you if you did not state at the last trial that. you had no independent recollection of this car f

A. I could not say, because my memory is that you asked me questions for about two hours at the last trial, and it is simply impossible for me to remember every answer I gave you at the last trial.

Q. Don't you know it is a fact that you have no independent recollection of this car, except by referring to the memoranda and papers you have here?

Mr. Bethel: We object; he has already asked that .same question twice. ·

The Court: I will permit the witness to answer it again.

A. No, sir, I do not know it. Q. Have you, or not? A. As I stated a few moments ago, I remember these two

cars of apples, because they were the only two cars of Newton Pippins we received from California that season.

Q. Didn't I ask you on the former trial, when you stated that you made an inspection of this car, if you

page 43 ~ had any independent recollection of it, other than the notation to which you had previously referred

in tllis paper, and didu 't you say no 1 A. I can't say whether I did or not. Q. And is it not a fact that you have no independent recol

lectiolll, anrl could not state when you inspected this car, except by 1·eferring to this paper~

llr. O'Connor: I object. He has asked the witness that smue qu~~siion no less than ten times.

The Court: I don't think he has gotten an answer to 1t, yet, Mr. O'Connor: If he were to ask the witness about some

otber .car, right now, the witness might have no recollection of it, but if he takes the paper he made at the time and looks at it then he may have an independent recollection. That is


what refreshing one's memory is for; that is how one gets a :r;ecollection of a thing, and I say that this witness, in view of that fact, has fully answered these questionf!t.

The Court: I think your argument would come better at a later stage of this ca.se. At present your objection is overruled.

Mr. O'Connor: Exception. The Court: Now the witness will answer the question.

page 44 ~ A. No, sir, I don't think I could state when I inspected the car, without referring to the paper.

Qo: So that independently of this paper, as I understand your answer, you could not tell this jury, to save. your life, when ynu inspected this particular car of apples?

A. The exact date, no, sir, I don't think I could. Q. Now, then, you inspected this car of apples on the morn

ing of October 2oth, 1923; ·and you just stated in response to my question that you had no independent recollection of it. I would like f~r you to tell me to what you have referred to refresh your memory as to the time you made that inspection f

A. To the inspec.tion report. Q. Have you got it, or has your counsel got it¥ A. I did have it a minute or two ago.

(Note: The report in question is here produced.)

Q. Is this the entry on this report (which is not in yet) to which you referred to refresh your memory?

A .. That's right. Q. (Reads from paper) ''Date 10-20-23; hour 8 A. M. placed

for loading." Is that the entry to which you referred, and from which yon now tell the jury that you inspected this car on the morning of October 2oth. 19237

A. Yes, sir. Q. This paper is dated October 22nd, 1923,. is it not? A. No, sir.

. Q. And according to this report the hour is page 45 ~ given as appears in that quotation, 8 .A. M., is it

not? A. 8 A. M. on the 20th, yes, sir. Q. Now when you say you inspected this car on the morn

ing· of the 20th, how many crates of apples in the car did you examine?

A. I would imagine possibly twenty-five.


Q. Did you take any of the crates out of the car ~ A. No, sir, not to my knowledge I did not. Q. And out of 840 crates you think you inspected probably

as many as 25 7 A. Somewhere about that. . Q. And. you did not see the res~ of the .shipment, at all, did

you, beGause you did not inspect them when they were unloaded at the Cold Sforage Warehouse¥

A. No, sir; we would consider that a fair proportion. Q. I did not ask you that. I just wanted ·you to answer

my question. Was a representative of the Atlantic Fruit Company, of Miami, Florida, to whom you stated you sold this car of apples, in Richmond at the time you claim to have made the .sale~

A. In my opinion he was; I am not sure about that, but am under the impression he was.

Q. You testified on the last trial of this case that he was here, did you not Y

A. I thought that was the way I made the sale. . · Q. And you also stated that he made a personal

}Jage 46 ~ examination of the shipment with you, did you notY A. I don't remember definitely about that.

Q. Well, didn't heY A. I could not say for .sure about that. Q. Do you mean to tell this jury that you have forgotten

this circumstance in the space of the last ten or fifteen days, that you testified positively when you were on the stand at the last trial that that gentleman was here, -and that you made the sale to him here in Richmond after he had seen the ap~ plesY

A. Mr. Marks, I could not· remember the answers to all the questions you asked me in this trial, in any way possible.

Q. I know that, but you 'vere here testifying under oath BS to what you remembered .. Don't you know that you testified at the last trial that the man was here, and don't you know it to be a fact that he was here.

A. No, sir, I don't know that I testified to that. I am un .. der the impression he was here, but I don't know.

Q. You are not positive of it, now? A. No, sir, I could not say positively about that. Q. Well, didn't you make a contract with this man repre

senting the Atlantic Fruit Company, when he was here in Richmond, to sell this carload of 'apples to him at a certain price, at which you agreed to sell and he agreed to buy, after he had seen the shipment of apples~

61 · Su.preme Court of A weals ·of Virginia

· · A. I could not say for sure whether he .saw the page 47 ~ shipment of apples, or not? We often sell apples

to people without their seeing them, and I am under the im.pression-

Q. But he actually saw this shipment, didn't heY · . A.. I could not say for sure.

Q. So you tell this jury that you can nQt tell us about that at this time; is that right~ A~ I could not say positively, no, sir~ Q. Don't you recall that it was on the 17th day of June

that this case was tried before! ·A. No, sir, I do not know exactly 'vhat date it was; I know

it. has not been so terribly long ago. Q. You said these apples were shipped here to yon, but as

I understand this bill of lading they were shipped to Mac Donald & Sons, ''Advise Burton & Briel."

A. That is a matter of form, as we have to pay an advance on the apples before we get them.

Q. You acted as COfil:Illission merchant in handling this carload of apples, did you not!

A. Yes, sir. Q. And you received your compensation in the way of com

missions on the sale which you made? A. We have. never gotten any compensation out of it yet,

because we have advanced more money on the apples than we have gotten back.

Q. Let's see I You rendered a statement to your customers, 1\{acDonald & Sons, of this shipment, did you

page 48 } not t A. Yes, sir.

Q. (Hands witness a paper} That is your bill-head, is it not~

Mr. O'Connor: I object to the use of that paper and its introduction in evidence, until it is properly identified as having been made by ~Ir. Burton. I don't know where it came from, ·or· who made it up.

The Court: Mr. Marks is just asking him if it is on his billhead. If he disavows it that ends it.

Q. You saw that paper when we tried this case before, didn't you?

A. Yes, sir. Q. And you stated at that time, as I recall, that that was

the statement you rendered to MacDonald & Sons on this shipment?

\ Southern Railway Co. v. Burton & Briel, Inc. 65

A. That is a copy of it, yes, sir. Q. Now, then, according to this statement you show here,

your commission was $84.00 for handling this shipment~ A. We would have made that if MacDonald & Sons had paid

UR back the difference between what the car brought and the amount we paid on the advance draft; but that has never been done, so we have made nothing.

Q. Well, that is a matter of accounting, because you have not collected the amount of your claim from MacDonald.

A. You don't collect commissions from the railroad, for selling other peoples' apples. What I mean by that is, it is

clear in my mind that we have not made anything page ~9 ~ yet on the sale of that car of apples.

Q. You have charged MacDonald & Sons the commission of $84.00 for handling the shipment t

A. Yes, but the adjustment has not been handled. Q. We have nothing to do with the accounts between you

and MacDonald & Sons. Have you not charged them your ...commissions for handling this shipment f

A. The charge is shown there, but that does not mean we have collected it in any way.

Q. Now you spoke about a draft. Let us see that! .. A.. I have not got the draft on me ; it may be with the pa

pers; look at the papers. Q. You look at your papers and see. A. lVIr. O'Connor may have the draft, I can not say; but

this paper right here will show that a draft was attached to it. .

Q. Is that the order you are talking about? A. The order which had to be turned into the Southern

H.ailway for them to deliver the car to us. Q. Now let me see if I can not find the order you are talk

ing about. You are talking about a delivery order, are you~ A. Yes. Q. That is the thing you are talking about? (Hands wit

ness a paper.) A. Yes, sir, and right up here you 'vill see, I imagine, that

there was a draft attached. Q. Now you have your accounts of this ship

page 50 ~ ment, and I want you to produce them. This is the first time I have heard anything about a draft

in connection with this matter. A. Sometime ago when we had this case up here, I went

down to the office and hunted up all the papers I had in connection "rith this matter and brought them here, all I could :find.

66 . Supreme Court of Appeals of Virginia

Q. You don't mean to tell the jury that when you have not got your commissions on this ·shipment of apples, ·and when you say you have not settled 'vith MacDonald & Sons, that your book of accounts between yourself and MacDonald & Sons is not available, do you Y Do you mean to say that is not available~

A. What is not Y . Q. You account with MacDonald & Sons, as to this shipment!

A. No, sir, I have no other papers except those that are here. I went down the other day and tried to locate them for you.

Q. How do you know there was a draft, then Y A. This bill of lading itself shows that. Q. Where does itT A. You ask Mr. Edwards here to tell you whether or notQ. I am going to put Mr. Edwards on the stand, but I want

you to point to anything on that bill of lading that shows anything about the paying of a draft before that car is.. delivered.

A. Here it is. We had to get the order from the bank before we could get the car.

Q. What order~ page 51 ~ A. This delivery order.

Q. Do you know what bank you got it fromY A. No, sir. Q. How do you know it didn't come to you direct Y A. A man would not ship a car. that 'vay if he was going to

sm1d the order direct. Q. So that is the delivery order you are speaking ·about~ A. The one we turned in to get tlie apples, yes, sir. Q. I will ask you to :file that as an exhibit with your tes-

timony. · A. All right, sir. (The paper referred to is here filed as Exhibit No.5, and is

in the following words and figures, to-wit:)

page 52~ PLAINTIFF'S EXHIBIT NO. 5.

MacDonal & Sons Wholesale Fruit Distributors

· Watsonville, California

DELIVERY ORDER

Agent Southern Railroad Company Richmond, Virginia

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Southern Railway Co. ·v. Burton & Briel, Ine. ,67

.. Dear Sir: .

Please deliver Oar So. R. W. 122243, to Burton & Briel, Inc., on surrender of this order and payment of freight and .all other charges, with~ut ·surrender of Bill of Lading ..

COPY OF NOTATION

(Seal} ON

ORIGINAL BILL OF LADING

Permit Inspection, before unloading without bill of lad~ ing.

At request and on behalf of shipper, maker of bill of ladjng consents to and assumes all liability for delivery of this shipment without surrender. of bill of lading, if shipper's 'vritten order to do is presented to delivering carrier.

Yours truly,

MAcDONALD & SONS, Per 1{. W. MAcDONALD.

page 53} Q. In rendering this statement to MacDonald & Sons you have apparently mentioned everything

conceivable, but no menti0n is made of any draft. You deduct freight of $634.42, inspection $25.20, ·cartage, storage, unloading, and icing $40.50, and your commission of $84.00,

.and then you show net proceeds in favor of MacDonald & Sons of $296.68. Why did you not include any draft you paid?

A. rrhe draft would not be shown in the account sales. Q. Do you mean to say that you remitted a net of $296.68

on account of this shipment, when you had paid a draft and had not gotten your money back?

A. I don't think so. Q. I don~t think so either, I agree with you.

·Mr. O'Connor: We object to that. The Court: The jury will disregard that.

Q. Now, Mr. Burton, don't you remember that you testified that you sold this carload of apples to that Fruit Corovany, after its representative had inspected them, for $1,510.98, and that later you made an allo,vance of 25 cents ·a crate on those apples?

AiS Supreme Court of Appeals :of Virginia

A. No, sir, I don't remember all the answers I made to your questions.

Q. Is not that a fact~ . .A. I don't know, sir; the record there shows.

Q .. So you tell the jury now that you don't know whether you sold those apples for $1,510.98 after the man

page 54~ had seen the apples, and he agreed to buy them at that price, and that you later deducted 25 cents

per crate-after you had made that contract. Is that what you tell the juryY

A .. Those records there show what we did, I think; that is the best I can tell you. ·

Q. You have no recollection of it now1 .A. Other than just seeing those papers. Q. One other thing, ~Ir. Burton, referring to that state

ment I see that you charged Ma~Donald & Son $164.20 storage-for storage on those apples. That is right, is it not~ Your ·statement shows it~

A. Yes, sir. Q. So you admit then, that that is a correct .statement of

this transaction? That is what you stated a moment agoY A. I think that is a correct statement. MacDonald & Son

never paid the $164.20 storage, though. Q. I am going to ask you to file that as an exhibit with your

testimony~

.A. Yes, sir. ·

(Note: The paper referred to is here :filed as Exhibit No. 6, and is in the following words and figures, to-wit:.

page 55~ PLAINTIFF'S EXHIBIT Np. 6.

Car. No. Sou. 122243

BURTON & BRIEL, INC. Wholesale .Fruits and Produce Commission Merchants

1218 East Cary Street and 24 South 13th St. Folio 7 4 Richmond, V a., 4-30-24

MacDonald & Son Watsonville, Cal.

57 bx. Newtowns 249 " " 534 " "

840

@ 2.00 @ 1.60 @ 1.87

114.00 398.40 998.58

1,510.98 ' )

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\ Southern Railway Co. v. Burton & Briel, Inc.

Less:

25c per bx. ·aHowance 210.00 Loss on 29 bx .. broken

avg. $1.93 per box 55.98 265.98

CHARGES

Freight 634.42 Int. 25.20 6~4.42

25.20 Storage 164.20 Iceing 40.50 40.50

164.20 Commissions 84.00

Net Proceeds,

69

1245.00

$296~68

page 56 ~ Q. When you made your accounting of this sale as a commission merchant, to your principal,

you showed net proceeds of $296.68 due MacDonald & Son~ Tirat is what that means, does it not?

A. It means that the car netted that much. Q. Did you pny l\tiacDonald & S'on that $296.68?. A. I do not imagine· so, beeaus·e· MacDonald & Son owed u.s~. Q. You simply credited them with those net. proceeds

ag,ainst what they (nved you; that is true, is it not~ A. I don't lm:ow whether it wourd be any credit, or not. Q·. That is what they wouTd be entitled to 011 account of the

net proceeds of this car? A. That ''s rrght. Q. Now, Mr. Burton, these appFes w·ere put in storage in

the Richmond Cold Storage·, were· they not? 'A. Yes, .sir, I think so. Q. And they were ordered over there by you on October

22nd, OT' two· days· after th'e··ca.r was· placed' for· unleadingY A. 1! thmk so. Q.. I understo·od you to say that you did not inspect those

v..pples· wllen tney were unroaded ~· A. :E dou't thrnk I did; to be frank with you I don't thinlt

so·. Q. Did this gentleman who represented the Atljantic· Fruit

Gom'{Jany tl'rat you said' purchased this shipment, inspect them at this time~ or nutl

.A. I don't know whether he did, or not.


Q. You don't think he did, do you Y page 57 } A. I don't think so.

Q. You made an allowance of 25 cents per crate on this account, and I understood you to say on your directexamination that you made the allowance because after the sale was made you found that the apples were in worse condition than you thought they were in at the time you made the inspection on the Virginia team-track; is that right¥

A. The buyer would not stand by the $1.75 price, and we .had to give him a credit allowance.

Q. And did you not say that the reason was because the apples were in worse condition than when he inspected them on the team-track?

A. I didn't say when he inspected them on the team-track; I can't say whether be did· or not; it is impossible for me to remember every detail about a car received three years ago.

Q~ When did this gentleman discover that the apples were not in as good condition as he thought they were when he bought themY

A. I could· not say. Q. You have no recollection abo~t it? A. I have no memorandum here that would tell me about

that. Q. So as ·you have nothing here to which you can refer,

yon have no independent recollection of it Y • A. No, sir. Q. And; therefore, does it not follow that you have no in

dependent recollection of anything else about this . ..-page 58 } shipment except by reference to your papers?

1\fr. Bethel: We object. That is the twentieth time he has asked the witness that question.

The Court: Objection overruled. Mr. Bethel : Exception.

A. Only, as I stated awhile ago, there were but two cars of Newton Pippins from California received by us that season.

Q. Now, Mr. Burton, when this car was ordered over there to the Richmond Cold Storage, you had it inspected by Mr. Hanson, of the Morehead Inspection Bureau, did you not~

A. Yes, .sir. Q. That is a fruit inspection bureau which maintains in

spectors for the very purpose of inspecting fruits f A. Yes, sir, for the railroads. Q. He inspected this car for you, didn't heY

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.A. Yes. Q. You had all the confidence in the world in him, or you

would not have had him inspect your car, would you~ A. That is correct. Q. Why did you interject into your answer that ·he in

spected for the railroads. I didn't ask you that; I asked you if he was not a competent inspector T

~{r. O'Connor: The question is objected to as being argumentative, and as being irrelevant, incompetent

page 59 } and immaterial as to why he said H.anson was an inspector for the railroads.

The Court: On cross-examination I think the question is admissible.

Mr. Bethel: We note an exception.

Mr. Marks: Why did you interject that into your answer, when you admit that this gentleman inspected the car for your account, and was paid by you, and that he was a competent inspector?

\. A. No reason other than just defining his position. Q. But you employed him and paid him for making this in-

spection for you, and he rendered a report to you! A. Yes. Q. And he is a competent inspector? A. I believe so, yes, sir. Q. Now, Mr. Burton, I am going to hand you this .record

from the Richmond Cold Storag~, which was identified and introduced as Defendant's Exhibit No. 1 at the former trial of this case. You have seen that paper ·before, have you not1

A. I don't know, sir, I may have; wh~ther that is the same paper or not I can't say; we had a similar paper to that at the last hearing. ·

Q. This is for car Southern 122243. Don't you recall testifying on cross-examination as to that paper, when you were examined before Y

·A. I don't say I did not; I can't say it is the page 60 } same paper we had before.

Q. Well, assuming this paper is- correct (and I will prove later that it is correct), it shows that this carload of .apples was unloaded at the Richmond Cold Storage on October 24, 1923, and that on February 22, 1924, two boxes of these same apples were delivered to Burton & Briel. Can you tell the jury what disposition you made of those two

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lwxes when they were withdrawn from the storage warehonse on February 22nd, 1924?

Mr .. Bethel: The question and any answer thereto are ob-jected to as being totally irrelevant.

The Court: Objection overrnled. Mr. Bethel: Exception.

A. Na, sir, I can not. I think all the apples in tnat ear were delivered to Bu:rton & Briel, becanse they were stored in our name, according to onr instructions. . Q. It further appears that on March 2'7, 1924,. 25 boxes of these apples were delivered by the Cold Storage to Burton & Briel. Do you know what disposition you made af those-~

A. No, sir; I 'vould imagine 've shipped them ont on instructions of the owners.

~fr. Marks·:. I ol>ject. I don't want your imagination. I move the Court· to strike ont that pairt of his answer giving 'vha t he. imagines.

The Chart:: Only, what the witness· knows- is evi-1

page 61 ~ dence; not what he imagines. J\fr. Ma-rks : I have had to make this· point with

the witness before, and I think your Honor has i:nstrueted him in regard to it; and I now· ask the C'ourt, if he d!eems it proper to do so, to caution this witness not in indulge in imagfnatioti or in answers· that are not responsive ta the· ques-tions·. ·

The Cbnrt: It is aiways desirable for a witness· tO' answer the questions diireetl'y. Of course· a witness nswering a question cat~gorically has a right to give an explana-tion of tlie, matters· within his lrno:w:ledge.

Q. Now on March 31,. 1924,. it appears that 20 boxes' were withdrawn by Burton & Briel from this storage warehouse, of' these same a].Dples; do you know what d'iBpoS'ltion you made of tbem?. ·

A. N·o, sir. Q. It further appears· tFtat 011· tFre same· da'J, March 31, 1!t24,

515 boxes of thes-e same· apples were withdrawn from the warehouse, and foaded in car FGE 41083, and I hand- you cepy of· a: bill of· l'ading issued by the· Ricllmond,_ Frederi'eksburg & Potomac Railroad Cb., dated April 1, 1~4!, covering this car FE!E' 41083. containing 964!: boxes· of' apples sllipped to Oliver W~ Otis, New York, the bill of Iading being· signed

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Richmond Cold Storage, for Burton & Briel. Do page 62 ~ you know whether those apples were withdrawn

and shipped to Otis, in New York, as these records would indicate?

A. Since yon refresh my memory on it, those apples were shipped for the owners to Otis, in New York, for export.

Q. N o'v it further appears from this same sheet of the Richmond Cold Storage, that on April 7, 1924, 10 of these crates were withdrawn by Burton & Briel from the warehouse; do you know what disposition you made of them T

A. I could not say, unless I had something to refresh my memory.

Q. It also appears that on Aprilll, 1924, 249 of these crates were withdrawn by Burton & Briel and loaded into car· C. & 0. 81045. Do you know what disposition was made of them?

. A. I could not say unless I had something to refresh my meinory.

Q. It is ·a fa.ct, is it not, that fruit such as apples are subject to much more rapid deterioration or decay, or tendency to color and ripen, when they are loaded in a car which is standing in a railroad yard, such as the Virginia team-track, tha.n they are when they are moving in transit~

Mr. Bethel: Now, if your Honor please, 've say any answer he may make to that is totally irrelevant. We are not suing for change i;n color of the apples, but because the car was robbed and had buckled and the apples were overripe when they were offered for delivery to us.


page 63 ~ A. Yes, sir, apples will deteriorate faster standing ·around and not ventilated, than they will

when moving in transit. Q. Is it not a fact that apples which remain on the trees

in the orchard, say, from October 3, 1923, to the 1st of November, 1923, will ripen during that period on the trees 1

Mr. Bethel: We object to the question, for the reason he is making this witness his own 'vitness, and has not qualified him as an expert orchardist.

The Court: Iiave you sufficient knowledge of fruit growing to express an opinion on thatf

A. I really do not have any·real kno,vledge of fruit grow-


ing; my impression is that they would ripen on the trees, of course.

Q. You knew enough· about it at the trial of the last case, when I asked yo~ about the second car, which was shipped under refrigeration, to say that they would ripen during the difference in the period of about two weeks sufficient to require the car, moving in November, to travel under refriger-ation instead of ventilation, did you not~ ·

A. It would be impossible for me to remember all the answers I gave on the last trial, if I was on my death-bed.

Q. I am asking you to testify to facts, and that is all I was asking of you when you were on the stand before. Now if you knew that to be a fact before, why don't you know it to be a.fact this time?

A. I was going to add that my impression is page 64 ~ that they would ripen.

Q. Out on the trees where all the air in the universe can come in contact with them and keep them cool f

A. One reason why I thought they would ripen on the trees is because they have the food coming from the trees, which has ·a tendency to make them grow and mature more than they would elsewhere.

Q. So you think that the apples when on the trees and be. ing fed in the usual process of fruit nutrition, would ripen more quickly than a carload of 840 crates of apples in a railroad car? Is that what you mean to tell usY

A. Yes, sir, but I will tell you why I think so'; because you can pull the apples when green and put them in a railroad car and they will never ripen; they might get soft and yellow but never really mature.

Q. Are you married~ A. I should say so. Q. Did your "ife ever go out and buy green apples and

bring them home and put them on the window-sill to ripen Y

Mr. Bethel: We object to that. The Court: That testimony is excluded.

Q. Now you said you paid $634.42 freight on this shipment of apples?

A. I think so, sir. . • Q. But you charged that back to MacDonald

page 65 ~ & Son, didn't you? You are not out of pocket that freight, because you charged it back to them on

this very bill ~ ·

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A. We charged it back to them, but we are out of pocket, as I tried to explain. .

Q. You didn't mean to give this jury the impression that you had to pay this much freight out of your own pocket, 'vhen you were handling the apples on commission~ ·

A. It happens to be so in this case, but of course the freight on the a.ples is charged back.

Q. It has been charged back in this very bill? A. That is on the statement. · Q. Now is it not a fact that your only connection with this

shipment was that of commission merchants 7 A. Yes, sir. Q. And that you filed a claim, claiming that you had sus

tained damage to this shipment, when you had nev.er been authorized by MacDonald & Son to do it-and did it without their knowledge ?

Mr. 0 'Connor: He has now been authorized to bring suit, and the authority has been shown here, and I object to the question.

The Court: What is the object of the question Y Mr. Marks: The object of the question is to show that

Burton & Briel, without authority from the owners of these apples, filed this claim without their knowledge

page 66} and authorization, and that' when we raised the question they got this purported assignment, which

has not been proven here, to sustain this action. In other words, they have no interest in this claim; they are merely litigating a claim in which they have no interest. I want to show to the jury that this plaintiff has not one dollar of interest in this claim. ·

The Court : The question is ·admitted. Mr. Marks: Now is not that a fact?

A. No, sir, not to my knowledge. Q. Do you know this stationery? (Hands paper to wit

ness.) A. Yes, sir, I know the stationery. Q~ You do not deny what MacDonald & Sons state in that

letter, do you~

Mr. Bethel: Let the jury see what is said in the letter. The Court: The jury can see it after the paper is prop·

erly introduced in evidence. A. No, sir, because I don't know anything about this.


Mr. Marks: I will ask you to file that as Exhibit No. 7. Mr. Bethel: We object to its introduction as being purely

hearsay. The Court: The objection is overruled.

· Mr. Bethel: Do I understand your Honor to say page 67 ~ that you overrule the objection as made? .

The Court: Yes. 1\fr. Bethel: Is the paper in evidence! The Court : Yes. Mr. Bethel: I would like to have the paper read to the jury. Mr. Marks: I am going to read it to them if you will give

me the opportunity.

(N otc: The paper in question, introduced as Exhibit No. 7, was in the following. words and figures, to-wit:

page 68 ~ EXHIBIT NO. 7.

MaeDonald & Sons Wholesale Fruit Distributors

Watsonville, California

1.,he Southern Railway System, Chattanooga, Tenn. Attention: J. A. Baumgardner

Dear Sir:.

Sebastopol, Cal, Aug. 13, 1924.

In answer to yours July 25th referring to car 122243 consigned to Burton & Briel, Richmond, Va., we note that Burton & Briel have filed a claim on the car in question, and beg to advise that we have not authorized Burton & Briel to handle this claim for onr account, but we will give them authorization if nec.essary.

Yours very truly,

(Seal) l{W1vi :RFI

MAcDONALD & SONS, I{. W. M.

page 69 ~ Q. Now this purported assignment recites that "for and in consideration of the sum of· one dol

lar, and for good and valuable consideration to the undersigned in hand paid, the receipt whereof is hereby aeknowl-

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\ Southern Railway Co. v. Burton· & Briel, Inc. 7T

edged' '-did you pay MacDonald & Sons this one dollar or any other sum of money in consideration for this paperY

Mr. O'Connor: We object to the question ·and any answer thereto, because the paper is under seal and needs no consideration.

Mr. Marks: It is not under seal. Mr. 0 'Connor: It says here ''Witness our hand and seal''. Mr. Marks: There is no seal there that I see.

()

Did you pay that one dollar, recited in that agreement? A. We paid seven hundred dollars. Q. Did you give MacDonald & Sons that one dollar when

you got this agreement1 · A. We had already given them seven hundred dollars; I

don't kno'v whether we gave them an additional one dollar after that, or not. '-

Q. Are you in the habit of giving money away~ What do you mean by saying you have given them seven hundred dollars?

A. I mean we paid the draft on the car of apples, and did not receive the money back that we paid out.

Q. vVhere is that drafty A. I don't know, sir. I thought the draft was

page 70 ~ with the papers but possibly it might have been lost while the Southern Railway had the claim.

Q. Have you any record of any draft you paid on this sl1ipmentY

A. I don't have any other papers except the ones here, as I searched for them the other day; but the record show·s we paid a draft.

Q. What record Y A. Record of· the Southern Railway Company. Q. And that is the only thing that you have here upon

which you base your statement that there was a draft -attached to that order~

1\.. That is the only thing I have, unless you have the draft in the papers, and it ought to be there.

Mr. Marks: I -am going to ask the Court to permit you to look for that draft.

Mr. Bethel: I think we turned that draft over to the Southern Railway, and never got it back.

Mr. lVIarks: Ifave you any record of it? · ·Mr. Bethel: No more than you have.


. The Court : Mr. Burton will look over his pa pe,rs ·and see if he can find that draft.

Witness: Your Honor, I looked for it the other day and could n.ot find it; I produced all the papers I could find.

page 71 ~ Q. So, then, taking your statement that you gave MacDonald & Sons several hundred dollars,

you mean by that that they are indebted to you, don't you T A. That we paid them several hundred dollars more than

we got back from this car of a-pples; -and that is the reason we filed this claim here.

Q. Is not that a claim against MacDonald & Sons Y .A. No, sir, I would not think so. Q. Why is it not? You have it charged on your books

against them, have you not T · A. No, sir, only in this claim; that is. the only place we

have it. . ~ Q. You have no record of any charge against MacDonald

& Sons of a.ny draft, or any other record of this shipment except what is on that account, as I understand .you~ ·

A. That, and the claim we have against· the railroad company.

Q. Didn't you just state to the Court that you had looked over your papers and had found no draft, or any mention of a draftY ·

A. The papers show that there ·was a draft -attached to the order, and the order was turned over to the railroad .. If MacDonald & Sons had paid us back what they owed us they would not have given us an assignement of the claim.

Q. I want you to read into the record the language on which you predicate your statement that a draft was attached to that order? . A. ''To MacDonald & Sons, Advise Burton & page 72 ~ Briel, Incorporated." That shows that there was

· a draft attached to an order, which order w.e had to get and turn. over to the railroad company before we could

. get the goods. -Q. You testified on your direct examination that your ex

perience was that buckling was brought about by rough handling. Now I am going to ask you this question: Is it not also afact that buckling will be brought about by improper loading or by improper bracing, ·as well as by rough hand-lingY I nm not dealing with this car, now, but dealing with tl}e question of ·what might cause buckling?

A. My 'impression is that it would not, because if the car

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Southern Railway Co. v. B~rton & Briel, Inc. 79

was not handled rough enough to move the load, it could not buckle.

Q. Do y~u mean to tell this jury that if a ca.r is loaded with apples, assuming that it has a space in it which should pe braced, but which is either not braced at all or is improperly braced, that the ordinary wear and tear of railroad movement :would not cause those apples to shift and. buckle in the middle of the car?

A. Buckle means jammed so tight that they rise up in the midde. .

Q. That's right. A. No, sir, I don't think the average handling would cre

ate that, no, sir. Q. Now, Mr. Burton, this statement Exhibit No. 6 shows

· that you sold first 57 boxes of these apples at $2.00 page 73 } a box; 249 boxes at $1.60 a box; 534 boxes at $1.87

a box, making a total of $1,510.98 as the selling price. Then you later made an allowance of 25 cents per box, amounting to $210.00 from that original price. That is correct, is it not~ ·A. According to that paper there it is correct. Q. You testified that there was a market price on apples in

a damaged condition. Do you mean to tell this jury that there are quotations fixing an average market price, from day to day, on damaged apples Y

A. There are no printed quotations in Richmond, of any price, by the dealers who sell the apples.

Q. What did you mean when you said the market price on apples, damaged, on the date these apples arrived here, was $1.50¥

A. In a damaged condition. Q. How did you arrive at that figure as the market priceY A. That was the highest price we were able to get for them. Q. For what apples Y A. For the apples in that car, in a damaged condition .. · Q. For this one shipment of apples Y A. Y e.s, sir. Q. So you are telling this Court and jury that the market

price, in the sense in which that term is used in the trade, is arrived at by a sale of one shipment of apples whieh you made in this one particular instance? Is that right!

A. Our market price is the highest price we can get for a commodity in the condition in which it is.

page 74} Q. And that is what you meant when you told the jury that the market price was $1.50-the price

\Vhich you got for them~


A. Yes, sir. Q. What you actually meant to say was, that you sold this

carload of apples for $1.50 a box, and therefore you conCluded that was the market price t

A. No, sir, that was the highest price I could get for them. Q. That was an actual sale, was it notY A. Yes. Q. You don't know what other people got for damaged

apples, at that time, do you Y A. I don't know that there were any other damaged ones

here at that time; but that was all I could get for these. Q. When did you make that allowance of 25 cents per

crate~

A. I don't know, sir. Q. You have no idea T A. I imagine it was just after the sale was made. Q. The Court told you not to indulge in imagination Y A. No, sir, I don't know.

RE-DIRECT EXA~IINArriON.

By Mr. Bethel: Q. All these several shipments of 4 boxes, and 25 boxes,

and various other numbers of boxes, upon whose orders 'vere they 'vithdrawn from the Richmond Cold Storage Y

page 75 ~ Mr. ~{arks: I object. If there was an· order that is the best evidence.

The Court: Have you any written orders, Mr. Burton~ Witness : No, sir, I have not. All the papers I have are

here. The Court : Answer the question.

A. After we sold them we would not withdraw them on anyone else's order but the o"~er 's.

Q. Then all these small lots, and big lots, one of which you sent by the R. F. & P. Railroad, were shipments that you made out of this car, for the people who bought it from you, were they Y

A. Yes, sir. . Q. Now about this letter here in which MacDonald & Sons

~ay "We will give them authorization, if necessary", MacDonald & Sons you say authorized you to bring suit, and gave you this authority to do it? · A. They did, yes, sir.

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Q. Did you take the deposition of Mr. J\tiacDonald, in Cali-fornia!

A. Yes, sir. Q. He owns the business ~ A. Yes, ~ir. Q. And gave the deposition which has been read in this

ca.seT A. Yes, sir.

Q. Do you recognize that as Mr. MacDonald's page 76 ~ signature, to the deposition in this caseY

A. Yes, sir. Q. Did you find any damage to these apples due to im

proper bracing, or to other causes¥

Mr. Marks: I submit to your Honor that counsel should not be permitted to a.sk questions of his own witness suggesting the answer he wants.

Tl1e Court: The question is improper.

Q. Mr. Marks said something about improper bracing in this car; did you find any improper bracing in the car, or not?

A. Mo, sir.

RE~CROSS EXAMINATION.

By :hf:r. Marks: Q. Mr. Burton, I understood you to say that you had no in

dependent recollection of this car, unless you referred to your records ~

A. My records do not show improper bracing. Q. You mean to say then that' your records do not show

improper bracing-and not that you know of your own per,. son·al knowledge from your individual recollection, that there 'vas no improper bracing? ·

A. If there had been any I would have put it on m#records.

Q. You mean that your records do not show it? A. Yes.

Q. And you are only testifying negatively that page 77 ~ your records do not show it?

A. Yes, sir.

Bv a Juror: · Q. How was that draft paid, by check or cash ~


A. We have to pay it by check to the· bank; it would be made payable to any bank it happened to be turned over to, I don't know what bank it was.

Q. Would not your check book show a stub to that effect? . A. It might. Possibly I might have it in my check book.

1 hunted through my records the other day and brought up here all the papers I could :find; but it might be possible w.e have a check book showing that.

Bv Mr. Bethel: ·Q. Mr. Burton, do you recognize Mr. MacDouald's siJpla

-1ure on that order? ~. Yes, sir. Q. Did Mr. MacDonald authorize the Southern Railroad

itself to turn that car over to you Y A. On payment of his draft. Q. Is not this the order Y A. Yes, sir. Q. Was not this order given to the Southern Railroad Y A. Yes, sir.

Bv Mr. Marks: · Q. Now I understood you to say that you have no inde

pendent recollection of the draft, and that the only page 78 ~ thing which made you think there was a draft was

this notation to which you have refer.red on· this hill of lading~ That is right, is it not? . ·

A. If there had been no draft there 'vould have been no nec~ssity for that notation on the bill of lading.

Q. Now refer to this order that your counsel handed to you, Exhibit No. 5, and it reads this way: ''Agent Southern Railway Company, Richmond, V a. Dear sir: Please deliver car Southern R. W. 122243 to Burton. & Briel, Incorporated, on surrender of this order and payment of freight and all other charges, without· surrender of bill of lading.''

A. That's right. Q. Do you :find any reference in there, in any way, to a

draft~

. A. "All other charges", in addition to the freight. Q. That is your answer, is it? A. Yes, sir.

Mr. Marks: I will ask your Honor, please, to ask the witness to find the check given in payment of this draft; he says he thinks he may ·have his check-stub showing the is-

) Southern Railway Co. v. Burton & Briel, Inc. 83

suance of a check in payment of such a draft as he refers to, 2.nd if he has, I would like to have it produced here.

The Court: will ask you, Mr. Burton, to try and find that check, during the dinner hour,-or the check

1)age 79 } stub-and bring it here with you-The Court will now take a recess until 3 :15.

Mr. Marks: Does the Court understand that this bill of lading has been put. in by Mr. Bethel?

The Court: It has been referred to by the witness. Mr. Bethel: Yes, sir. We would like to have it here until

we finish.

(Note: The Court here recessed until 3:15 o'clock P. M., when the hearing of testimony was resumed.)

page 80 } T. W. ALLEN, a witness introduced on behalf of the plaintiff, be

ing duly sworn, testified as follows :

DIRECT EXAMINATION.

Bv Mr. Bethel: ~ Q. Please .state your name and business f A. T. W. Allen, foreman for Richmond Cold Storage. Q. How long have you been with the Richmond Cold Stor

age? A. Nine years. Q. How long have you had experience in the loading and

11nloading of cars with perishables Y A. Ever since I have been there. Q. Had you had any previous experience,· before going

there1 · A. No, sir. Q. How many cars a year do you handle T A. Somewhere around five hundred. Q. Did you see this car of apples when it was brought down

tf) the Richmond Cold Storage ? A. Yes, sir. Q. What was the character of the loading? A. Loaded end to end, loaded solid, loaded tight, nothing

the matter at all with the loading, so far a.s I could see. · Q. When cars are loaded from end to end do

page 81 } they require any bracing? A. Not if they are tight.

Q. Was this car tight¥ A. Yes, sir.

84 Supreme Court of. Appeals of Virginia

CROSS EXAMINATION.

By Mr. Marks: Q. Mr. Allen, this car arrived here in October, 1923; have

. you any independent recollection of this car, without referring to the record ~

A. No, sir. Q. None whateverf A. No, sir. Q. So that if someone came here and asked you whether

car Southern 122243, loaded with apples,. was placed in the Richmond Cold Storage in October, 1923, you could not to save your life tell, without referring to the records!

A. No, sir, and no one else could. Q. What record have you referred to, from which you made

the statement here before this juryf A. Well, you have the record there. We have a daily book

and whenever a car comes in and it is not loaded properly I put it on this book, and it is copied from there on to a receipt he has. - Q. Is this the paper to which you refer¥

A. Yes, sir. Q. Will you look at that paper and tell me

page 82 ~ whether there is anything on it showing how the car was loaded-whether it was braced, or any

tlling pertaining to the loading or bracing~ A. No, sir, but if it had not been loaded properly t. wquld

have had it on here .. Q. Suppose a car came into your storage warehouse with

say ten era tes buckled in the middle, would your record sho:w that?

.A.. Yes, sir. Q. Does that record show it 1 A. No, sir. Q. Now it is practically conceded in this case that some

, of those crates had buckled. Why doesn,t your record show thatf

A. Well, this car was loaded solid, and when a car is loaded solid there is but one thing that can cause it to buckle, if it is loaded tight, and that is if the engine should strike a car. l1ard and ·jerk it, or handle it rough, as we call it, that is the only way it can be buckled in the middle.

Q. Now you have not answered my question. Yon said your report would show the condition of the. car when it arrived; and if it did not show a certain thing that would mean that

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Q Southern Railway Co. v. Burton & Briel, Inc. 8s

that" certain. thing did not exist. Now I tell you that it appears in this case that 14 crates were damaged by buckling

and your report does not show it. How do you page 83 } explain the fact that your report does not show

it, when the condition actually existed~ A. I explained how it could be done. Q. But I did not ask you that. A. I said this report would show it if the car had not been

properly ·loaded. Now if this car had not been properly loaded I would have stated that on my book, and it would have been copied on the receipt. There are thousands and thousands of them down there not properly loaded, that is on there.

Q. You stated a moment ago that if this car came in with some crates damaged due to buckling, your report would sl1 ow it, didn't you Y

A. Yes, sir. Q. Now I tell you that it is a fact in this case that 14 crates

in that very car were damaged, due to buckling. Now if your r~port showed everything that you say it would show, why don't it sho'\v that?

A. Well, I say it does not show that it was caused from buckling.

Q. They were damaged due to buckling, now why didn't your report sho"r it 1

A. I don't say that it was or was not; according to my way of handling the car it was not buckling.

Q. What do you mean by your way of handling the car? A. Well, I handle about five hundred cars a year,

page 84 } and when a car bucldes, or has been handled badly, I put it on my book, and it is then copied on the

receipt. Q. Now this car actually buckled in the middle and 14

crates were damaged. Why didn't you report that, if you show everything on your report?

Mr. 0 'Connor: I didn't understand the witness to say that he showed everything on his report. As I understood the witness he said if a car was not properly loaded it would be shown on his report.

The Court: I think the witness has answered the question a.s far as he can. .

The Witness: I told him that this report here is my answer. The Court: And that is the only answer you can give? "\Vitness : Yes, sir.

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II 86 Supreme Court of Appeals of Virginia '-.

Q. Your report does not show ·that that car was loaded~-~ solid, does itY ·· · · ' .. · -· ·. · .. ·. : · ::

A. No, it does not show that, but-in other words, if a car. is.not loaded properly, either braced· or· solid, I put if on my daily report.; it does not make any difference .whether a car is loaded solid or braced, as far as· I am· concerned, if it is loaded all right. · · · · · · · · · · · · ·· 1

. Q. You say . this car was loaded solid ~ · A. Yes, sir. · · · · · · · · · : .

page 85 ~ Q. How do you know it was not braced 7 A. When a box car comes in_:_you ·never see a

box car loaded with as many boxes as that unless it is loaded solid. Take a regrigerating car~ they :as· ·a· rule,· the ··bigges~ of tbem-

Q. What do you mean by a box. carY A. A box car is a car not a refrig.erator' car. Q. Don't you know that box cars vary· v·ery ~ecidedly. ~

length, height and width~ A. Yes, sir. · Q. Is there anything there to show the height of this car~ A . .No, ~ir. . · · · · · Q. Or the widthJ · .li.. No, sir.

. Q. Of the lengthY A. No, sir. Q. How do you know that that was a car so long that wit~

that number of crates in it it had to be· braced Y · · A. Not with that many. A 40' foot car.' w.ould have held.

that many without being braced, and t~at is ~s-large a car as they make.

Q. How do yo~ know that~ A. Automobile cars are made larger .

. Q. How do you know that a 40 foot car is as large a car as is used? · · · ·

A. For handling apples. . · Q. How do you know it Y

J~age ~6 ~ . A. Because I have handled five hundr~d a·year;.· . _ and never saw one beyond that.

Q. Yo\1 ~e~n to say you have never seen one, is that it~ Jl. Yes, ~ir. . Q. And you do not mean to say that you know. the railroad~

~0 I not uSe 'larger ones than that' . . - . . . A. Only cars used for automobiles. Q. How. ~9 you know that Y A. Because no one has ever seen them larger .. Q. N9w assume that this was a ~ft. car-=-:

Southern Railw~y. Co: v. ~urton ~ ~ri~l, Ipc. 81

/. Mr. Bethel: We object to any assumption. We aretrying this case ~th a.· p·articular car~ · ., · ·

. Q. You c.o~d .not look at -that r.~po~t a11;d te~~ t9 s~v~ xour hfe, whether that shipment was braced in the car, or wa~ u solid lmid without bracing, could you? ; . . .. . . . . . .

A. No, sir. Q. Now another thing: if the inspector who inspected thi&

car for Burton. & Briel-~ .di~~te~est~d p~rty, employ~d ~n4 Jlaid by Burton & Briel-said there was ·bracing in .that car, could you deny it? . . ·' · ·

A. Yes, sir. ·

. Mr. Bethel : No one in this court room· will presume to say whether this witness who has been inspecting cais· for the

railroads in great numbers, so ~I~. ~u~ton testi: page 87 } :tied, is a disinterested witness. .

tnined. The Court: The objection to ·the· questig~ ~s s~s~

Q. Do you know Mr. Hanson? A. Yes, sir. . .. : .' ·

. Q. If Mr. HaD;son p;roduced his record and t~sti:fied, and his record showed that there was bracing in ·tliis 1 car, coul4 you from anything yqp s~e .on the report deny itt

. Mr. O'Connor.: If your .I~onor please, Mr. Hanson has not testified there was 'llr:acing .in. 'this car, and, ther.ef~~e, I ob~

ject to the que~tion. . .. . ·. · The Court: Oqjectiou su~tl}ir~ed. . . .

Mr. Marks: I expect Mr. Hanson to show tftat there wa~ bracing in that car, and that it was not suffici~nt to suppor~ the load; and I submit 1 have the right to ask this witness whether he ~o~ld deny th.at, i~ t~e ip.spector .. w~o was t~~r~ for ~he very purpose of 1nsp~ctlng the car .CS:Id.,t4ere -:wa~ braCing. ·· · ·

The Court: I don't think you can ask the witness that. . .. . Q. But you have no independent recollection of thi~ ~art except what you get from that report in ygu~· ~~p; i:S t~a~ right? · A. Yes, sir.

page 88} RE-DffiECT EXAMINATION~

By Mr. Bet}lel: · ·Q. You saw this car~

88 Supreme Court of ·Appeals of Virginia

A. Yes, sir. Q. You remember seeing it down at that warehouse f A. Yes, sir. · Q.. You remember that some of the boxes were broken, some

robbed, and the apples bruised, and the car buckled! A. Yes, sir. Q. You remember that distinctly! A. Yes, sir. Q. Can you tell us approximately what size car that was f A. 36 foot. Q. And I understood you to say that a ·36 foot car loaded

(.)nd to ·end does not need bracing~ A. Provided the boxes fit in tight. Q. Were these fitted in tightt A. Yes, sir; they had an inch and a half or inch and three

quarters board there to make thm tight. __ Q. That is what you call stripping~

A. Yes, sir. Q. And not bracing? A. Not bracing, no, sir. Q. Now, Mr. Allen, the United States Government inspec

tion made of this car in California says it was loaded the entire length of car 19 stacks, 5 layers high; 5 .stacks, 4 lay-

. ers high; all 8 rows wide; alternate and top lay-page 89 ~ ers stripped. Is that the proper way¥

A. Yon see when yon .have not got enough boxes to entirely load your car-say you start 7 high, to go all over

·the entire car-then you have to drop down a box and have to come in behind this lower stack with a strip, and that keeps them from slipping backward and forward. That is what they call stripping.

Q. In other words, a car that is fully loaded, from end to end, does not require bracing ; and it is only when a car is not fully ]oaded that you put a strip in to keep the boxes from slipping?

A. And they use that for ventilation, too. Q. Do you know whether this car was being given stand-

ard ventilation down there T A. Well, it had one door closed and one door open. Q. What about the vents Y A. Two of the vents open and two closed. Q. Is that standard ventilation-or do you know~ A. No, sir. Q. It was not being given standard ventilation when the

Southern Railroad brought it to your warehouse Y A. No.


RE-CROSS EXAMINATION.

Bv Mr. ~{arks: ·Q. How do you recall about the strips, and so forth, in this

car? Does this report show anything about that 1 page 90 ~ A. He asked me a question about the cars, not

about this particular one. Q. So you were not talldng about this particular car, 1s

that right? A. Yes, sir.· Q. How many clays a week do you work do'\vn there? A. Six and a half. Q. Do you ever lose any time? A. I have lost since I l1ave been there about two months·

in nine years. Q. How do you know that you were there and personally

saw this car? Is that your handwriting on that report? . A .. No, sir, hut the man who put it there knew I unloaded

the car. Q. Who is he? A. Mr. Robinson. Q. Put what there? A. ~fy name-T. W. Allen. If someone else had unloaded

it he would have put someone else's name. Q. Ho'v do you remember about the details of this car,.

when you Hny yon have no recollection of it, and the only way you know about it is what is Hhown on that report?

~f r. Bethel: I don't think he testified that. ~Ir. Marks: I so undcrstootl him.

page 91 ~ Q. You testified n moment ago that you had no independent recollection of this car, except what

that report showed; is that correct? A. That's right. This is a reminder, to bring your memory

fresh about anytbing. The same way witl1 you, if you didn't have any report to look back to you wouldn't know anything either.

Q. When you 'ook at that report you have no independent·recollection except of the things shown on that report, have vou1 · A. That'~ right.

Q: So you don't know whether you saw that car or not, except from that report, do you?

A. Certainly not.

;

90 . Supreme Court of Appeals of Virginia .\/ B-v Mr. Bethel:

·Q. After seeing that report, however, it refreshes your recollection?

;·· A. Yes, sir. "\Ve unloaded only two cars of Newtons in .1923, and handling only two cars of that brand almost any:qne would remember them without seeing the book.

Q. Now, Mr. Allen, I asked you awhile ago abo~t the United -States government inspection report on this car in California as to how it was loaded, and I asked you if that car was properly loaded,, from this report. I was talking about this particular car, and now I ·will ask you again, was the car properly loaded?

A. Yes, sir, that 'vas properly loaded-just as ;p~ge 92 ~ that report says.

•<. (Witness here stood aside.)

page 93 ~ C. C. PEARl\tiAN, a witness introduced on behalf of the plaintiff, be

ing first duly sworn, testified as follows:

DIRECT EXAMINATION.

Bv Nlr. Bethel: , .. ~ Q. Please state your name and business? ·. A. C. C. Pearman, of W. C. Crenshaw & Co. · · Q. What company are xou with 1

·A. W. C. Crenshaw & Co. Q. What is your connection 'vith that company~

• A. Vice-President. Q. About how ma~y cars of perishables a year does your

company handle f A. Between eight hundred apd a thousand, I guess. Q. How long have you been in that business t A. About fourteen years. Q. Are you familiar with the methods of loading and un-

·loading cars, and the character of stripping and bracing required, and ''rhat standard ventilation is? : A. I think so. . Q. It is in evidence here by the United States Government Weather Bureau Reports, that on October 19, 1923, the high tNnperat.ure was 75, the low 55., and the mean 65. That means :. . . the average, as I understand. In order for a car to

'page 94 ~ be under standard ventilation how should the vents and doors be, when the temperatures are those I

hnve named!

\


A. When it is above freezing all vents should be open, the ends and sides.

Q. On October 20th, 1923, the high temperature was 63, the low 53, and the average was 58. Should the vents be open or closed then f

A. All the vents should be open. Q. On October 21st the high was 62, low 47 and mean 54;

on October 22nd the high was 57, low 47 and mean 52; on October 23rd the high was 49, low 43 and mean 46; on OctoLer 24th the high was 57, low 43 and mean 50; how should a car which required standard ventilation be ventilated for all of that period~

A . .All the vents should be open. Q. Should at any time part of the vents be open and part

closed! A. No, sir. Q. What was the market price, around October 20, 1923,

on Newton Pippin apples in the city of Richmond, of this condition and quality-~pples of fine quality, in a hard condition, and practically free from defects -affecting grade Y

A. Supposed to be fancy, or extra? Q. Just read the government report. I would

})age 95 } like to add this in the question: The apples were described as follows: Excellent quality and condi

tion, hard and firm, and of good keeping quality. The ap}lles were of the Newton Pippin variety, California fancy grade, and of excellent quality and condition, grown in a district noted for raising apples of especially good keeping quality. What were those apples worth in Richmond, at the market price, on October 20, 1923?

A. Looking up our records, they were 'vorth around $2.50 a box.

Q .. How about from the 20th to the 24th, was there any material change in the price 1

A. No, sir. . Q. A carload of apples comes into Richmond loaded solid,

that is, from end to· end; is it customary or necessary to have that car braced?

A. Loaded solid from end to end 1 . Q. Yes. A. No, sir. Q. What character of cars are usually braced? A. Mostly refrigerator cars, although some ventilators are

braced; but ·when loaded from end to end· there is no room ... for bracing.


Q. It has been. testified to in this case, or is in evidence by the government inspector's report that this car was loRded its entire length, 19 stacks, 5 layers high; 5 stacks, 4 lRyers high; all 8 rows wide; alternate and top layers stripped. It is in evidence here that this car was 36 feet

long. Did that car require bracing~ page 96 ~ A.. No, sir; not 'vhen loaded end to end, no, sir.

Q. It says here "Loaded entire length of car"; does that mean loaded from end to end¥

A. Yes, sir. Q. Being large handlers of fruits and perishables, do you

have occasion to store such goods in cold storage warehouses ver~r frequently?

... ~. Yes, sir, espec-ially apples. Q. "\Vhen you sell a car of apples is it customary for you t.o

f!t.ore the apples Yer:y frequently in your own name r

1V[r. Marl{S: Objected to as irrelevant and immaterial. 'fhe Court: Objection overruled.: Mr. Marks: Exception.

A. Yes, sir. I will explain the reason, if you want me to. Q. All right. A. The reason they are stored in the name of the receiver,

HS we call it, is this: at the beginning of the season we make arrangements with the storage· people and contract to store so many apples; a certain amount of storage space that the receivers take is at a certain rate, a cheaper rate than any one gets who just w·ants to store one .or two cars; so naturally a buyer of one car 'vho wants to store it in Richmond

·will nine times out of ten ask you to store it for him in your name, rather than in his, so he can get a cheaper

page 97 ~ rate. · Q. Now when it is shipped out of storage in

whose name must it be shipped~

Mr. ~larks: Objected to as irrelevant mid immaterial. The Court: Objection overn1led. Mr. Marks: Exception.

A. The apples would have to be shipped out in the name they went in under, and they would have to be shipped out on an order signed by tl1e person i.n whose name they went in.

Q. Are you familiar with the cl1aracter of apple described in that government report-Newton Pippin apple? ·

A. Yes, sir.

•

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-------------------


Q. And its keeping quality, and so forth 1 A. Yes, sir. Q. Apples of that character and condition leaving Cali

fornia in October and sent here, are those apples usually sold here in Hichmond at that time, I mean at retail Y

A. No, .sir.-

Mr. ~larks: I object to the question as immaterial and ir-relevant. The question is what was done in this case.

The Court: Objection overruled. :L\ir. Marks: Exception. 'Vitness: A Newton pippin, as well as most all the other

pippins, such as the Albemarle apple, i.s one of the first apples harvested in tl1e fall, and it is practically the

page 98 ~ last apple that comes into consumption in the ~ spring.

Q. Do you know the color of that apple when it is unripe 1 A. A Newton pippin turns yellow when it is ripe. -(~. Is it customary with yon commission merchants her.e.

to try to resell apples for people to whom you have already ~old them? -

(Objected to, and withdrawn.)

Q. When a carload of J)erishables comes in-fruits or vegetables, or what not-on consignment to you, and it is damaged, do you file a claim 'vith the carrier, regardless of whether you are authorized or not~

}lr. J\iarks: Objected to a.s immaterial. The Court: Objection sustained. l\1r. Bethel: Exception.

Q. In this government report here the inRpector says about these apples, when they were loaded in the car in California, the apples are from a g-reen to yellowish green color, and fancy grade. Does that yellowish green color indicate that the apple is ripe, or is it the natural color of that apple?

A. From g-reen to a yellowish g-reen color; the Newton pippin has a kind of fiu.sh on it, and I imagine-

~Ir. ~larks: I object to his imagining; if he don't know, let him say so.

Witness: From this report it looks like the ap~ page 99 ~pies were in good condition.


CROSS EXAMINATION.

By Mr. Marks: . Q. I understood you t~ say these pippins had a yellowish

color when they were coming to turn ripe; is that correct Y A. Yes, sir~ Q. Now a yellowish green color would indicate that they

were turning ripe, would it not~ A. N.o, sir. Q. Why not? A. I said a yellowish color, not a yellowish green. Q. You have a green, that is one color, and a yellowish green

is turning from green to yellow, is it not Y . A. No, sir, I would not think it was turning from green

to yellow; it could be taken off the tree 'vhen yellowish green. The yellowish green he speaks of is not the same yellow I ,e

am talking about when the apples turn ripe, because if. it was a· yellowish green he would have noted on the government report that the apples were ripe, or beginning to turn ripe.

Q. That is your explanation of it, is it' A. Yes, sir. Q. You didn't see this shipment of apples, did you Y A. No, sir. Q. And know nothing about it~ A. No, sir.

Q. If apples are pulled in an orchard say on Oc]Jage 100 ~ tober 3rd, and another lot is pulled along in the

latter part of October, would not the ones pulled lust be riper than the ones pulled first?

A. That is, the first part of the crop, and the last part? Q. Yes. A. Yes, sir, I imagine they "~ould ; they should be.

RE-DIRECT EXAMINATION .

. Bv ~Ir. Bethel : . · Q. Would every one of them necessarily be in a ripe .con· "dition?

A. Not necessarily, no, sir; they could come from different orchards.

Q~ Mr. Pearman, suppose we have here the car in question found on the 20th day of October, 1923, with some of the vents open and so'me closed; and we again find that .car on Octoher 24th with the vents still some of them open and some of them closed; is the car receiving proper ventilation, when

/


the bill of lading says it must have standard ventilation~ A. No, sir. Q. What effect will the failure of the car to receive stand-

ard ventilation have on the apple? · A. It will affect its keeping quality.

' Q. Tell us just 'vhat you mean by that? A. Well, if a car is not being properly ventilated and is

going through a temperature of from 55 to 60 outside, with the vents closed on it, naturally it will be a whole lot

page 101 ~ hotter in the car and that heat has the tendency to cook the food.

Q. Will that heat also ripen it up any¥ A. Oh, yes, turn it yellow.

()Vitness here stood aside.)

page 102 } BERT LEE, a witness introduced on behalf of the plaintiff,

being first duly ~worn, testified as follows:

DIRECT EXAMINATION.

Bv l\Ir. Bethel : ·Q. Please state your name and business to the jury? A. Bert Lee; fruit inspector. Q. How long have you been in the inspection business~ A. Fifteen years. Q. For whom have you inspected? A. Morehead Inspection Bureau, and. for the Produce In

~pection _Bureau. Q. Have you inspected for railroads during· those fifteen

:vea1·s Y .. A. Yes, sir.

Q. What railroad have you inspected for! A. About thirty-five.

Mr. Marks: I object to the question as immaterial. }rfr. Bethel: I want to qualify him as an expert.

(~. How many cars during those fifteen years do you estin1ate that you have inspected; or how many cars do you inspect a year, either way~ .

A. It would be pretty hard to say, but somepage 103 ~ 'vhere in the neighborhood of an hundred thou

sand.


Q. It -is in evidence here from the United States Weather Uureau that on October 19, 1923, the high temperature was 75~ low temperature 55 and mean tem _ _gerature 65; on October :20, the high was 63, low 53, and mean 58; on October 21, the high was 62, low 47, and mea11; 54; on October 22, the high \vas 57, low 47, and the mean 52; on October 23, the high was 49, low 43, and the mean 46; on October 24, the high was 57, low 43, and the mean 50. Now during that time, it is in evidence that on the 20th day of October, the 22nd, the car in question in this case was found to have one vent in the end of the car open, and one vent in the end closed; one door closed and one door open. On the 24th, the next time we sflw that car again, that car had the same vents open and closed and the same doors open and closed. It is further in evidence that the contract with the railroad company. required this car to be carried under standard ventilation. I want to ask you first, if this car was receiving standard ventilation dnriug this period?

1\. No, sir. (~. Secondly, I want to ask you, considering the tempera

tnres I read to you, what was the condition that car should have been carried in, during that period"?

A. All vents open. Q. On the United States Government inspec

page 104 ~ tion report of the car involved in this controversy it is stated that the car was loaded its entire

length 19 stacks, 5 layers high; 5 stacks, 4 layers high; all 8 rows wide; alternate and top layers stripped; and the car was 36 feet long. 'Vill you tell this jury whether or not that car was properly loaded f

A. Properly loaded. Q. Did that car require any bracing 7

. A. No, sir. Q. A board an inch thick and six inches wide, used as a

strip between the boxes there, is that what is called bracing? A. No, sir; just what is called a strip. · Q. What is tl1at done for? A. To take up the space. Q. During this period of years have yon inspected apples? A. Yes, sir. (~. Do you know the Newton pippin apple~? .A. Yes, sir. Q. '\Vhat character of apple is that; is it a kind that is

usually eaten immediately when pulled from the tree or shortly thereafter, or a kind that is put in storage?

)

I r I

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Southern Railway Co. v. Burton & Briel, Inc. ·97

A. Put in storage. Q. What is the color of that apple 'vhen unripe? A. Green, with a yellowish tinge. Q. How do they look when they begin to turn ripe? A. They get a more yellow color.

· Q. Get a deeper yellow color f page 1.05 ~ A. Yes, sir.

Q. What ls the effect of keeping a Newton pippin in a car that is not receiving standard ventilation, con~ldering the temperatures I have just read to you ?

A. It becomes ripe. Q. You mean by that it will turn a deeper yellow? A. Yes, sir. Q. Will it get softer, I mean mellower f A. It will get mellower. Q. Would or would not the temperatures which I have·

r1uoted to you affect the keeping qualities of those apples, in a car not receiving standard ventilation 1

A. Yes. Q. "\Vhat effect w·ould it have1 A. It would ripen them.

CROSS EXAMINATION.

By ~Ir. Marks: ·Q. V\7hat is your present business f A. Inspector. Q. You do something else, do you not~ A. No, sir. Q. Are you not connected in some way with a commission

l1 ouse here? A. No, sir. Q. Not connected with one in any capacity?

A. Not in any capacity. page 106 ~ Q .. Are you now· inspector for this Southern

Produce Company? ... c\.. Not the Southern-for the Produce Inspection Servic.c. Q. \Vhat is that Y

.A. I am proprietor of that. Q. Where is your office. A. Any place on Cary Street. Q. Don't you conduct a business on Cary .Street under the

name of Bert Lee? A. No, sir, I do not. Q. Is not there a business conducted there under that name f

98 Supreme Court of . .A.ppe~ls of Virginia

Mr. O'Connor: I object to that question and any answer thereto, as being totally irrelevant, incompetent and 1mmaterial.

rrhe Court:. vVhat is the relevancy of that? Mr. Marks: The relevancy of it is that I think there is a

business conducted on Cary Street under that name, and I think this witness is connected with it. Have I not got the right to ask him about it~ I don't have to accept his categorical statements.

The Court : You may impeach him, or prove the contrary 'by other witnesses, hut I think you will have to accept his answers.

Mr. Marks: Your Honor rules that I can not ask him the question?

page 107 ~ The Court : Yes, sir. Mr. 1\farks: I note an except}on.

Q. ~1r. Lee, you didn't see this car, did you~ A. No, sir. Q. And have no knowledge of it whatever 1 A· That's right.

(Witness here stoocl aside.)

page .108 ~ W. E. BURTON, a witness heretofore introduced on behalf of

plaintiff, was recalled for further examination.

Bv Mr. Bethel: ~Q .. Mr. Burton, did you find among your records at your

office the check that you paid to the hank for this car of ap-ples-the stub of the check, I mean 1 - ·

A. I did not find the check; I found in our check book the stub where we had written off the check.

Q. On what bank was it drawn? A. First National Bank .. Q. How much was it? A. $840.00. Q. Just show it to the jury. (Witness here shows a pa

per to the jury.)

Bv a Juror: · Q. Was this a consignment? A. A consignment; and this was the advance made on the

car.

-------------


By Mr. Bethel: Q. What was the date of that entryi A. 2nd of October, 1923.

page 109} CROSS EXAJ\tiiNATION . • Bv Mr. Marks:

.. Q. Now, Mr. Burton, will you let me see that, pleasei A. Yes, sir. Q. What is this sheet Y A. That is the stub of our. check book. Q. Now this check was given on October 22, 1923, is that

right? A. Yes, sir. Q. That was in payment of a draft which was ·attached to

this order which is in the record here as Plaintiff's Exhibit No. 5, is it?

A. I think so, yes. Q. And you would not get this order until you paid the

draft, 'vould you 1 A. No; that is what I told you this morning. Q. Now, then, you drew this check on October 22, 1923 Y A. That's right, sir. Q. At which time you delivered it to the bank and paid

the draft and got this delivery order; is that right¥ A. Yes, sir. Q. And then you took this delivery order down to the

Southern R-ailway as its authority to deliver this car to your rl,hat is correct, is it not f-

A.- Yes, sir. Q. Now you had no right to enter that car or do anything

ill connection with it until you took up this draft, did you Y

page, 110 } 1\tir. 0 'Connor: I object to that question. It is a question of la'v as to whether he had the

right to enter the car before any _particular time. Mr. Marks: All right; I will withdraw the question.

Q. So you had no authority to get that car or do anything in connection with it until you got this order 1

A. I had authority to do anything but take delivery of it, I think. I saw nothing there to restrict my doing anything, except taking delivery.

Q. And on the 22nd of October you took up the draft, with tl1is order attached 1

A .. Yes, sir.


Q. Now I want your records showing your charge of this $840.00 on the account of MacDonald & Sons?

A. We have no records that I could locate anywhere on that, at ·an. I tried to find ·the draft, and am under the impression the draft was filed with the railroad company -at the time the claim was filed; and I went through all the papers to find anything else. There was no charge against MacI>onald, as I told you this morning. We filed that claim there.

Q. Any sum that you paid on account of this draft you paid on account of l\iacDonald & Sons, did you not?

A. I paid it on the apples. . Q. Yes, but you charged it to MacDonald & Sons 1

A. I don't know whether it was charged to page 111 ~ MacDonald & Sons or not.

Q. Do you mean to say that you, as commi.ssion merchant handling a carload of apples on commission, \vould pay out for ~IacDonald & Sons $840.00 and not charge tl1em with it?

1\ .. If we got the apples we would not necessarily charge l1im with it; and we did get the apples in this case.

Q. And you can not find any record of an account between you a.nd MacDonald & Sons, showing how much they owe you, or how much you owe them?

A. All we have is the claim against the railroad company. Q. What wa.s the market price, dq you know, of apples of

this character, in the spring of 1924-along in March and .April f

A. I could not say, sir. Q. Don't you recall testifying -at the fo1omer trial f A. My impression is that the apple market was low, par

ticularly on that quality of apples, in the spring·. I could not say.

Q. rrhc price of apples was low then in the spring? A .. Dependent on the quality and condition.

By ~Ir. Bethel: · Q. 'l'his $840.00 that you paid on the draft, is in addition

to what you paid on the freight too; is it not~ A. Yes, sir.

BY a tTuror: · Q. I understand this was a consignment.?

A. That's right, sir. page 112 ~ Q. Do you keep accounts with the consignors,

at your place?

.. I

\


..A.~ No, sir, not unless we have to carry over from one year to another.

Q. So the posting of this item would not, under your bookkeeping, go to the consig11or's account 1

A. No, sir; we do not keep a fully valid .set of books, what you might call.

Q. By :Nir. Ma.rks: I understood you to say that you have nothing 'vhich you could show, setting out the account between you and MacDonald & Sons 1

A. No, sir; this claim we have charged up against the railroad company is all we have.

Bv :Nlr. Bethel: ·Q. In these shipments to you of fruits an<l vegetables, when

they come in damaged you always file claims with the railroads on all of them, do you not ·1

A. Yes, sir, unless instructed not to do so. Q. That is your duty to your shipper, is it not¥ .A. Yes, sir, we have to protect hif;! interests.

~{r. ~1arks: .I object. ']~he .shipper can file claim as well as l1e can.

Q. ':el1at is customary in the trade, is it not? ..A.. Yes, .sir.

(Witness here stood aside.)

Mt.". Bethel: ':rhe plaintiff rests.

page 113 ~ E. ,J. ROBINSON, a witness introduced on behalf of the defendant,

1Jeing first duly sworn, testified as follows:

DIHECT EXAMINATION.

Bv :Mr. ~farks: · Q. You are the President of the Richmond Cold Storage,

Incorporated, arc you not f A. Y cs, .sir. Q. Will you please take that paper and state to the court

<).nd the jury what it is? A. This is a memorandum covering a car of apples re

ceived October 24, 1923, and stored under our Lot No. 1355, for account of Burton & Briel, Incorporated.

102 Supreme Court of Appeals of· Virginia

Q. Where does your lot number appear? A. In the upper roght-hand corner. Q. Now in the right-band column of this page I notice the

c~ption "Received". Is that your record of what was received, and the condition~

A. That is the record of the contents of the car. Q. Please read that record to the jury. A. It says 821 Boxes of Newtown pippins; then 5 boxes

robbed of all contents through window and door; 14 boxes smashed and recoopered to store. 2 end vents

page 114 ~ open and 1 door ventilated. Q. Up here in the upper right-hand corner I

notice some abbreviations and figures. State what they are! A. Temperature 31 to 33. Q. Does that mean the temperature in the car, when re

ceived? A. The temperature under which w·e carry them in stor

age. Warehouse No. 1, Room No. 6. R-eceived lOth month, 24th day, 23 year. ~

Q. No~v on tl1e left-hand side of this sheet, under the caption "Delivered", there appear a number of entries Will ~·on read those entries to the .iury ~

A. February 22, 1924, 2 Boxes delivered to Burton & Briel. J\Iarch 27, 1924, 25 Boxes delivered to Burton & Briel: ~larch ~~1, 1924, 20 Boxes delivered to Burton & Briel; March 31, 1924, 515 Boxes delivered to Burton & Briel; April 7, 1924, 10 Boxes delivered to Burton & Briel; April 11, 1924, 249 Boxes delivered to Burton & Briel. That takes up the total number put in.

Q. What do these figures with a circle around them on the extreme left, indicate?

A. They indicate the number left after the different with~d 1·a w·als.

Q. Down near the bottom of this statement I read the following: ''Storage charges paid by Burton & Briel, October 24th, $164.20, season to April 1st. April 1st, $12.95, April

storage, 259 boxes; total $177.15". Please ex-puge 115 ~ plain what that is?

A. $164.20 covers the season's storage to April l~t. $12.95 is the monthly storage accruing after April 1st, 1924, on the remainder of boxes left in storage as of that date.

Q. "\Vhich had not been previously removed? A. That's right. Q. I will ask you to file this statement as "Defendant's

Exhibit No. 1 ". A. All right, sir.

Southern Eailway Co. v. Burtoiii& Briel,.InG;

page 116 }•

IQ^i

DEFENDANT'S EXHIBIT NO. 1

Read terms and conditions on which you accept this Warehouse Receipt.

RICHMOND COLD STORAGE, Inc. Comer 18th and Clay Sts., Richmond, Va.

Received Subject to Rules and Conditions Endorsed on Back Hereof

We Guarantee Temperature Only

For Account of Burton & Briel

Address.

From R. R. in Car Initial Sou. .No 122243

Temp. W. H. R Lot No.31 1 6 1355

To M D Y Rate33 10 24 23 20c bx.

DateNo.

Pkgs

(819) 2/22 2..

(794) 3/27 ...25..

(774) 3/31 ....20..

(259) 3/31 -515.

(249) 4/ 7 ....10..

4/11 ..249..

..storage ch

..Oct 24

-Apr. lst.„.

arges

DELIVERED

-Bxs .B & B.

. " B&B.

-B & B. in FGE

-B & B...-

.B & B in C & O

paid by Burton & Briel

164.20 season to April 1st

12.95 April storage 259

.$177.16

Date

41083

81045.

bxs.

No.

Pkgs

Freight.— (Not Negotiable)....

..Labor and Dray. i

No.

Pkgs

.821..

RECEIVED

Said to Contain

...Bxs, Newtown

season

Weight

..5 Bxs. robbed of all contents through window and

...819.,

...560..

...259..

door...

.14 Bxs. smashed and recoopered to store...

.2 end vents open and 1 door ventilated....

.Seals

.Sou. 910145

.. " 910149

Received By F. W. Allen.

...Checked By

104 Supreme Court of Appeals .of Virginia

GENERAL RULES AND CONDITIONS GOVERNING STORAGE

The within Memorandum Receipt is given by the RICHMOND COLD STORAGE, Inc. and accepted by the OWNER, under and subject to the following RULES and CONDITIONS:

1. Definitions: The words, RICHMOND COLD STORAGE, Inc. as herein and after used, are to be taken and means the party with whom the ~ are stored. And the word, OWNER, as herein and after used, 18 to be taken, and means the party who stores the goods.

2. RICHMOND COLD STORAGE, Inc. shall not be liable for any loss or damage 'to the property stored, caused by the act of God, or by noy other act or thing beyond the control of the 'RICHMOND COI.D STORAGE, Inc. or by fire, rust, ratage, vermin, natural decay, or any other loss or damage not the direct result of negligence of the RICHMOND COLD STORAGE, Inc.; furthermore, the RICHMOND COLD STORAGE, Inc. does not examine packages or contents of same and will not be responsible for condition of same under any t'ircumstances whatsoever.

3. No responsibility is assumed by the RICHMOND COLD STORAGE, Inc: for leakage, defective or insufficient cooperage, boxing, crating or packing, or for wear and tear. Loose meats and any class of goods not properly packed at the OWNER'S risk. Not responsible for shrinkage in weight or depreciation by time. Reasonable allowance should be made by the owner for ordinary wear and tear in handling goods.

4. When goods are to be withdrawn from the warehouse, present this memorandum warehouse receipt with a written order from the party to whom this ticket was issued (giving lot number). One day's notice is required for access to, or delivery of goods. A charge will be mnde for unpacking and repacking.

5. All charges must be paid on delivery of goods. Storage shall be due and payable by the OWNER to the RICHMOND COLD STORAGE, Inc. monthly. All other charges such as freight, draxage, labor and tho like paid by the RICHMOND COLD STORAGE, Inc. in order to store the property in the RICHMOND COLD STORAGF.'S warehouse, shall be paid by the OWNER on receipt of the property into said warehouse, and all other charges paid by the RICHMOND COLD STORAGE, Inc. while the property is stored in its possession, shall be paid monthly at the time storage charges are due and payable. The rates herein set forth do not include insurance either against loss by fire or accident.

6. In storage charges, rates are quoted in cents per package, quantity. Weight on package where gtven, or approximate. When there is any material variation in weight, the charges will be proportionately increased or decreased as the case may be, and all packages are to be charged for at gros8 weight. ·

7. A storage term is one calendar month or a fraction thereof· The monthly term to begin on the day of the month goods are received and run for one calendar month, including the day of receipt. For example, goods received on June 2nd for storage may remain until July 1st, on the first month's term, but, if on hand July 2nd, a second term will ha\•e commenced, and an additional month's storage will be charged. This rule will not be waived or deviated from.

8. All goods unclaimed or upon which all charges have not been paid for a period of· six months or over, may be sold by the RICHMOND COLD STORAGE, Inc. at public auction after reasonable notice.

9. This Warehouse Receipt is ar.cepted with the understanding that these or any goods stored hereafter may be held for money due or any money that mny become.due hereafter.

10. It is a condition of this MEMORANDUM RECEIPT that in no case shall the RICHMOND COLD STORAGE, Inc. be liable in any way or in any manner, for any articles of extraordinary value, unless by special agreement, and a stipulated value is agreed upon at the time goods are stored. ·

11. If the OWNER wishes to secure a negotiable receipt for the goods stored, RUch a receipt will be issued to him upon the surrender of this memorandum, but in case a negotiable receipt is so issued, under no circumst.ances will the RICHMOND COLD STORAGE, Inc. allow the goods to be removed, un.til the negotiable receipt is returned properly endorsed.

12. This Memorandum Receipt is given on the condition that the mere fact of the loss or damage to the property stored shall not be deemed or taken as evidence of negligence on the part of the RICHMOND COLD STORAGE, Inc., nor shall the RJCHMOND COLD STORAGE, Inc. be liable except upon positive proof of negligence on its part, the right to introduce any other evidence of negligence on the part of the RICHMOND COLD STORAGE, Inc. being waived and relinquished by the OWNER.


page 117 ~ CROSS EXAl.VIINATION.

By Mr. 0 'Connor : Q. This record here that you have testified from shows

that at different times different numbers of boxes were withdrawn from storage, by Burton & Briel, after they had been Htored with you. Does that mean that Burton & Briel were the owners of those goods?

A. Not necessarily. Q. Do you know anything about a custom of storing goods

in the name of the commission merchant, for the benefit of the owner?

lt. It is done frequently . . (J. Explain to the jury how that is, and what it is done f A. I don't know why ; I can not say. Q. Is it because the commission merchant has a better

ratef · A. Frequently a commission merchant will re

I>age 118 ~ ceive apples from several growers and store them under his contract, in order to give his custom

ers the benefit of his contract rate. Q. There is nothing unusual or irregular about that f or in

the commission merchant subsequently withdra,ving the goods in his own name 1

1\... It is frequently done. Q. That is the 'vay they would ba.ve to withdra"r them

in the same name in which stored? A. Absolutely. Q. Now from your record here as to these conditions, was

that car receiving standard ventilation 1 A. I am not qualified to answer that question. Q. I believe you testified that some of the vents were closed,

nnd so~e open, is that correct~ A. That is the evidence on the receipt. I am not qualified

to answer what standard ventilation consists of. Q. As an operator of a cold storage plant, from your knowl

edge and experience, will apples that have been exposed to 1wat in a railroad car keep as well, or as long, as· those that ]mve not? ·

A. Well, from w·hat little knowledge I have, usually it is desirable to get apples under refrigeration as quickly as possible after they come off the trees.

Q. If they are subjected to a high. temperature between the time. they come off the trees and go into storage, will that affect their keeping qualityf ,

-- ------------

108- Supreme Court of Appeals of Virginia ·

11age ll9 ~ Mr. Marks : I object to the question, on the ground that it has not been shown that these ap-

ples w.ere subjected to a high temperature. The Court: Objection sustained.

Q. Did you see this car¥ A. Yes. Q. ],rom that report there-you have testified from it, I

uelievef A. Yes. . Q. Was that car of apples in good condition when you re-

ceived it, or not 1 .A.. I can't say. You mean ·as to the character of the fruit r Q. I mean the condition Y A. Yon mean of the containers ~ Q. I mean of the containers and of the fruit~ A. Well, there is a notation on the list of that condition.

RE-DIRECT EXA~IINATION.

Bv nlr. Marks: · Q. I am going to ask you to state what this paper is; please,

sir!

1\ir. Bethel: \N e object to the introduction of that paper. :Nir. Marks: I want to show that the apples which were in

this car, and for which a suit is here pending page 120 ~ for dan1ages; and the apples which were contained

in this other car, were withdrawn and shipped in the very same FGE car to 'vhich I have referred, and I have a witness here to testify 'vhen they went out. In other words, this report shows that on March-

Mr. Bethel: We ask that the jury be excluded. rl,he Court: Gentlemen of the jury, wa.lk out in the hall.

(The jury l1cre retired.)

1\ilr. 1\ilarks: I .want to sho·w that tl1is report which is in evi·dence, shows that on :March 31, 1924, 515 boxes of these apples 'vere withdra"rn from storage. Now in anotl1er suit pPnding here, concerning apples in a refrigerator car, covered by this report, on l\iareh :31st they withdrew from that shipment 439 boxes, making a total of 954, all of which were londed in this FGE. car, and went to New York for export.

1\fr. Bethel: I-Iow· do you know that?

I

\ \


1\'Ir. l\Iarks: Because it is show11 on the report. His own renort sho,vs that they were loaded in that car.

The Court: I think· you have it in evidence that the apples which were damaged were afterwards shipped to New York.

J\tir. l\iarks: Here is the point: If these pippin page 121 } apples shipped from the Pacific coast in Novem-

ber required re~rigeration to keep them from getting ripe, then necessarily apples shipped from there in October, which is a warmer month than November, required refrigeration.

The Court: I don't think you can show that by producing that other report.

~Ir. ~farks: I want to connect them up with the apples in the other case.

The Court: You can probably use the evidence to show that another shipment was made under refrigeration but I do not think it would necessarily follow even then. Let the witness answer, but I will haYe to exclude that other paper.

1\tir. Marks: All right, sir. I de.sire to note an exception. lVIr. 0 'Connor: Your Honor is not going to permit the

question? . The Court: I say if he wants it in the record he can get

the witness's answer, so that he can take advantage of it in a bill of exceptions.

~Ir. l\{arks: I will put it in the record then.

Q. Mr. R.obinson, state what that report is, please? A. This is a memorandum covering a car of apples, ~IP

93185. Q. Which was admitted to your storage house

page 122 } on what date 1 A. N OYClnber 24th, 1923.

Q. Ho,v many boxes? A. 980 boxes. Q. And what was the first withdrawal'? A. ~larch 31, 1924, 439 boxes. Q·. Do the entries on this record correspond with the en

tries which you have explained in detail 011 the other record, lJeing Defendant's Exhibit No. 1?

A. There were 980 boxes in this car and onlY 840 in the other. · .,

Q. But your entries on this report under the caption '' R.ereived" show the nun1her of boxes that von received on that ~nte7 ~

A. 980 boxes received that date. Q. And the entries under the delivered colum~1 show when

.. 110 Supreme Court of Appeals of Virginia

you delivered those apple~ to Burton & Briel, and the number delivered, at different dates~

A. That's right. Q. And the year of delivery was 19241 A. Yes.

__ Mr. Marks: Please file that as "Defendant's Exhibit No. cl .:..

The Court: The Court excludes the paper just referred to, and the question and answer relating thereto, as being irrelevant, there being already evidence before the jury that the apples for which damages are claimed 'vere shipped to New Y:ork for export.

page 123 ~ Note: The jury here returned to the court-room and resumed their seats in the box.

(The witness here stood aside.)

Mr. Nlarks : I no'v desire to introduce, and will read the depositions of two ·witnesses taken on behalf of the defen·dant.

Note: The depositions of-

Clyde Raymond Tipton, and "\V. Nathan Harper, were here read.


CLYDE RAYNIOND TIPTON, taken oil behalf of the Defendant, on May 4th, 1925.

CLYDE RAY~.fOND TIPTON, a witness being first duly sworn, dc':poseth and saith in anFwer to interrogatories as follows:

Question 1. By defendant's attorney: 'Vhat is your name in full~

Answer. Clyde Raymond Tipton. Question 2. Where do you live 'f Answer. Cincinnati, Ohio. Question 3. What is your business ? Answer. Transportation Inspector, Southern Railway. Question 4. Ho·w long have you been Transportation In-

spector~

Southern Railway Co. v. Burton & Briel, Inc. 111.

Ans,ver. About five years. Question 5. What are your duties as Transportation In

~pector?

Answer. The duties are those assigned by the General Superintendent of Transportation, to check all transportation matters, and anything that comes under the head of the Operating Department.

Question 6. Would it or not be correct to say, then, that you are an Inspector to follo"r up and trace the handling of all transportation business over tlw lines of the Southern Railway System 1

Answer. Yes, over Lines West. Question 7. Are you familiar with the schedules for the

movement of freight trains carrying perishables, ·in force in October, 19231

Answer. Yes, sir. Question 8. Is 'the record of the movement of car Southern

122243 over the lines of the Southern Railway page 125 } System Lines West acce.<;ible to you, .so that you

can examine the same and ascertain what is con-tained in that record?

Answer. Yes, .sir. Question 9. "\Vhere are those records situated? Answer. We have the records in lVIr. Mitchell's office, in

Cincinna tL Question 10. Do those records include, with respect to this

car, ventilation records~ Answer. They do. Question 11. From these records, will you please state when

and at what place this car was received by the Southern Railway System !.Jines West, and give from the same schedule 1he movement of this car over the lines of the Southern Rail-way System Lines West 1 .

Answer. This car was received from the Frisco Railway, Memphis, 2 :10 P. M. October 15, 1923. Car went forward in rrrain 52, 2:15 A. 1\L October f6; arrived in Chattanooga J 2 :30 A. M., October 17; went forward via Lines East Train No. 52 9 :00 A. M., same date.

Question 12. Was or not Train 52 the regular scheduled ·.train on which freight of the character contained in this car

should be forwarded~ Answer. It is. Question 13. And was there any earlier train on this occa

sion, on which this car could have been sent forward~ Answer. Not to my knowledge. Question 14. Did or not this car in conformity with the


regular schedule for the handling of freight of this character over the Southern Railway System Lines West'?

Answer. It did. As a matter of fact, it received better than schedule movement.

page 126 ~ Question 15. Referring now to the records of ventilation of this car, will you please state what

instructions were received by the Southern Railway System as to the ventilation of the car~ What do the records sho'v with regard to the ventilation of this car while it moved over the Southern R.ailway System Lines West~

Answer. The records indicate that the vents were open the entire time while in possession of Lines West. This car was traveling under standard ventilation.

Question 16. \V a.s this or not standard ventilation for freight of this character moving at that time of the year~

Answer. It is .

.. A.nd further this deponent saith not.

C. R. TIPTON.


vV. N .. IIARPER, taken on behalf of the defendant, on the 16th day of June, 1925:

Question 1. By defendant's attorney: What is your name in full.

Answer. William Nathan ·Harper. I am personally desig-nated in the notice to take this deposition as 'N. ~f. Ifarper.

Question 2. "\Vhere do you live¥ Answer. Charlotte, North Carolina. Question 3. "\Vhat is your business~ Answer. Assistant to General Superintendent of Trans

portation, Southern Railway, for Lines East. Question 4. How long have you been assistant to General

Huperintendent of Transportation 1 Answer. Nearly six years. Question 5. \Vhat are your duties as the assistant to Gen-

t~ral Superintendent of Transportation~ . Answer. :More particularly the distribution of freight equip

ment over lines east hnt any other special duties assigned by the General Superintendent of Transportation, including the 8dwdulc.s, etc.

\

' \.


Question 6. Would it or not be correct to sa.y that it is one of your duties to follow up and. trace the handling of all transportation business over Lines of the Southern Railway System, Lines East?

Answer. It would be in special cases assigned to me, as has been done in connection with the matters involved in this case.

Question 7. Are you familiar with the schedules of the movement of freight trains carrying perishables, in force in October, 19231

Answer. Yes. (~uestion 8. Is the record of the n1ovement of the car South

ern 122243 over the lines of the Southern Railway System Lines East accessible to you so that you can ex

page 128 ~ amine the same and ascertain what is contained in the record 1

Answer. Yes, sir. Question 9. Where are those records situated·¥ Answer. In the office of 1\ir. W. M. Cowhig, General Super

intendent of Transportation Lines East, Charlotte, North Carolina.

Question 10. Do those records include, with respect to this car, ventilation records 1

Answer. They do. Question11. J.i,rom these records, will you please state when

aud at what place this car was received by the Southern Rail\vay System Lines East, and give from the same schedule the movement of this car over the Lines of the Southern . Railway System Lines East'~

Answer. This car arrived. at Chattanooga over the Lines of the Southern Railway System Lines West on October 17th, 1923, at 12:30 A. M. and ·went forward via Lines East, train No. 52, at 9:00 A. 1\I. October 17th, 1923. It arrived at Knox·dlle, ':eennessee, at 1:20 P. 1\L October 17th, 1923, and went forward at 2:45 P. M. from Knoxville on October 17th, 1923. It arrived at Asheville, North Carolina, at 4:00 o'clock A. 1'1. October 18th, 1928. It ·went fonvard from Asheville at 6 :15 A. 1\L October 18th, 1923. It arrived at Spencer, North Carolina, at 3:55 P. M. October 18th, 1923, all by train No. 52. lt went ftmlJ·anl from Spencer, train 56, at 7:30 P. l\L Octoher 18th, 1923. It arrived at Danville, Virginia., train 56, at ~ :30 A. M. October 19th, 1923. It went forward from Danville extra train, engine 546, at 10:30 A. l\L October 19th, 1923. lt arrived at Richmond, Virginia, extra train, engine 546, at 7:20 P. l\L October 19th, 1928. It w·as placed for unload-


ing at 7:00 o'clock A. J\'I. October 20th and consignee notified ar 9:00 o'clock A. JVI. October 20th, 1923. Consignee inspected this car in our yards at f1 :00 A. M. on October 22nd, 1923,

and requested reconsignment to C. & 0. yards page 129 ~ for unloading at cold stor'age plant, and deliv

ery 'vas made to C. & 0. on same day. Question 12. Were or not trains 52, Chattanooga to Spen

cer and train 56, Spencer to Danville, regul~r scheduled trains on which freight of the character contained in this car should be forward to Richmond, Virginia'

Answer. They were, and a.re. Question 13. What \vas the schedule time of departure of

train 56 from Danville for Richmond' · Answer. 8 :50 P. l\L Question 14. What time did this car actually leave Dan

,·iHe? Answer. At 10=30 A. ~I. October 19th, 1923, instead of the

seheduled time of departure of 56 at 8:50P.M. October 19th, 1923.

Question 15. Why did this car leave Danyille at an earlier l•onr than the schedule for 56 ?

.. A.nswer. There happended to be an unusual condition on this date wherein the Richmond division had an extra engine 546, and crew at Danville and a.nd made up and sent out an · t~xtra train, moving· Southern, No. 122243 and other cars. '.l'J1is car moved out of Danville ten hours and twenty minutes c·arlier than it would have left by train 56.

Question 16. vVas there .any earlier train on which this car ·· eou]d have been sent forward·~

Answer. No. · Question 17. Did nor not this car move in conformity with

the regular schedules for the handling of freight of this char:-~cter over the Southern Railway System Lines East?

Answer. It did except that, as stated above, it left Dan\'ille for Richmond ten hours and twenty minutes in advance over the regular schedule for the handling of freight of this character ..

Question 18. Referring to the records of ventilation of this car, will you please state what your records ·show with re-

. ga.rd to the ventilation of this car while it moved page 130 ~ over the Southern Railway System Lines East t

Answer. The records show that the vents were open the entire time while along· the Lines East between Atlanta and Rich~ond, this being a ventilated box car, said car lu~ing l1andled under the usual standard ventilation for cars of this character.


Question 19. Was this or not standard ventilation for freight of this character moving at that time of the year?

Answer. It was.

And further this depo.nent saith not.

W. N. HARPER.

page 131 } ROLAND BARFOOT, a witness introduced on behalf of the defendant,

being first duly sworn, testified as follows:

DIR.ECT EXAMINATION.

Bv Mr. Marks: .. Q. Mr. Barfoot, where do you live a.nd 'vhat is your occu

pation? A. I live at 2713-A Third A venue. I am loading clerk for

the Eastern Steamship Company. · Q. '\Vere you in the employ of the Southern Railway Com- ·

pany in October, 1923 ~ A. Yes, sir. Q. vVhat 'vere your duties at that time~ A. Yard cl~k . . Q. You have no connection with the Southern Railway

Company now, have you? A. None at all. · Q. How long has it been since you left the employ of the·

Southern Railway Company? A. I left in the spring of 1924. Q. Here is a book which I have opened at page 219, and

'viii ask you to take that and examine it, and state if you know what it is?

A. Yes, sir, this is a book containing records of freight received by the Southern and delivered.

Q. Do the entries on that page 219 have anypage 132 } thing to do with Southern car 122243?

A. Yes, sir, it has a record of said ca.r. Q. In whose handwriting are those entries? A. Mine.

~Ir. Bethel: We object to it as a self-serving paper. The Court: He has not. introduced it.

Q. Please refer to that record which you have before you,

~~~~~~~-~-~~~~~~~~~-- -- -~ ---

--


and state if you can from that record when this car was placed for the consignee~

Mr. Bethel: We object to that, because I understand Mr. Marks to ask him if he can state f~.:om that record which he made. If this 'vitness has no independent recollection of this thing I think he should not be heard.

Mr. llfarks: If the same were true as to your witnesses all of your testimony would go out.

The Court: If the 'vitness after refreshing his memory from that record can answer the question, he may do so.

A. That car was placed on the Virginia team-track at 7 A. lVI., on the morning of the 20th of October, 1923.

Q. Can you state when Burton & Briel were notified of the arrival and placement of that car~

A. At 9 A.M. on the same date-October 20th-by 'phon6. Q. Do you know whether they were given any

. page 133 ~ other notice later ? · A. Yes, sir, they had a notice from the office.

Q. vVritten notice~ A. Written notice, on the same date.

By Mr. Bethel: ·Q. Did you send that notice, or mail that notice, yourself? A. No, sir. Q. You are just testifying to what someone told you 1

By the Court: Q. How do you know the notice was sent out~ A. Because it is the custom; they have a regular notice man

who takes them out. Q. But you don't kno'v of your own knowledge that it was

sent out~ A. No, ·sir, I did not see it go out.

The Court: Them that is excluded. Mr. lVIarks: All right, I will prove it by the receipt.

By J\!Ir. Marks: Q. Did you personally see this car oil the morning of Oc

tober 20th, 19231 A. Yes, sir. Q. Can you state whether the seals were on the car doors

at that time 1 A. Yes, sir; 44-Y.

I I

\ \

Southern Railway Co. v. ·Burton & Briel, Inc. 11.7

Q. VVhat initials'? page 134 ~ A. S. P. Co. Southern Pacific.

Q. Southern Pacific seals 44-Y were on each door, were they?

A. Yes, sir. Q. At what time of the morning did you examine that car? A. I 'vould say between 8 and 8 :15. That is always the

first thing I do when I went on duty. Q. What were your duties when you started out in the

morning¥ A. My duty 'vas to canvass all the delivery tracks; the

team track first, because that was perishabl013, take the seals on the cars; record of car number and what it contained, and who it was for; and then I would go from the perishables tracks to the other tracks and do the same thing.

Q. And you did that with -respect to this car¥ A. Yes, sir. Q. Do you know whether :iVfr. Burton, of Burton & Briel

made an inspection of this car? . A. Yes, sir, he did, on l\1onday, the 22nd. Q. Were you there when he made the inspection¥ A. Yes, sir. Q. And you and he examined the car tog·ether ¥ A. Yes, sir. Q. 1\fr. Burton has testified, after refreshing his memory

from a paper ·which we have here, that his recollection is that he inspected this car at 8 o'clock A. 1\L, on the morning

of October 20th, 1923. Can you state whether page 1:35 ~ the seals on that car had been broken at that

time~

A. ':rhey had not been, no, sir. Q. Is it possible to enter a car and make an inspection of

it, a car such as this, without breaking the seals on the car? A. No, sir. Q. When this inspection was made by 1\fr. Burton and you

on nionday morning, wl1ich was on October 22nd, 1923, do you recall what the condition of the doors 'vas-the solid doors of the car?

A. rrhe door on one s~de was open, and on the other side the door was closed.

Q. The solid door on one side was. closed, and the solid door on the other side was open, leaving- only the ventilator door closed. In order to get into that car what did you and :Mr. Burton have to do with the solid doors~

A. We l1ad to open them-get the nails back and open them.

118 Supreme Court of ·.Appeals of Virginia

Q. Before you could get into the car and inspect itT A. Yes, sir. This closed door 'vas on the platform side,

where all inspections of cars were made because the platform was even witl1 the door and made it convenient to get in and out.

Q. Where did Burton & Briel, Incorporated, receive their shipments of this kind, at that time ol

A. Almost all on the Virginia team-tracks. Q. Where this car was located at the time? A. Yes, sir.

Q. Now when you inspected that car on the page 136 ~ 22nd, please state what the condition was so far

as the vents were concerned, and any condition that you found as to robbery, or other condition of the shipmentT

A. Well, the two vents in the: end of the car, one at each end, were closed.

Q. There were two vents in each end of the car and one vent in each end :was open and the other vent in the end was closed, is that right t

A. Yes, sir. Q. You stated -that one ventilator door was open and the

other closed by the solid door being closed, is that right T A. Yes, sir. Q. Did you find any crates in there which had been pil

fered or robbed? · A. Yes, sir, there were I think five crates; some was robbed from the vent in one end of the car, and the others was robbed near the door, through the rods or through the slats in the ventilation doors.

Q. How had that robbery been accomplished~ A. Through the rocL~ in the doors and through ·the rods

in the windows, and the vents in the end of the car, and through the rods and slats in the ventilator doors.

Q. Did you :find any of the crates in the center of the car, at the door, damaged?

A. Yes, sir, there were some in the center of the car. Q. Do yon recall ho'v many?

page 137 ~ A. It is on this record; it seems to me there were seven or eight-at least seven.

Bv :Nir. Bethel: · Q. You say it is on that record you have there 1 A. I think so.

\


By J\ir. Marks: Q. Do you know whethe~· Burton & Briel unloaded that car

on the Virginia team-track' A. They did not. Q. What disposition was made of it, do you know? A. After inspecting the car ou !Jionday, the 22nd, the car

was billed out to the Richmoud Cold Storage.

Mr. O'Connor: If your Honor plea'se, I 'vould like to know if he lrnows, and ho'v he knows, these things. Do they appear on that record there, and that they subsequently billed this. car outf

The Court: Do you testify of your own knowledge T Witness: Yes, sir, right now, yes, sir, but it is also on the

record here. This record was made by me at the time. I left the Southern Railway Company in the spring of 1924, and until I was here a few weeks ago I had no.t seen this book.

The Court: If you had not made that record would you recollect it?

page 138 ~ A. No, sir, _,I would not.

By :Mr. 1\farks: Q. Now, Mr. Barfoet, when you went into the car to in

spect it could you have done so without breaking the seals, unless they had theretofore been broken~

A. No, sir,· I could not have gotten in; the door we went through was nailed up, ·and 've prized it open.

Q. After the car was ordered from the Southern to be delivered to the C. & 0. for the Richmond Cold Storage, did you apply new seals to the doors~

A. Yes, sir. Q. I hand you this bo·ok and will ask you to sta.te if that

is a record of the new seals you applied~ A. These seals I applied, yes, sir; or rather, they wer.e

applied by the colored man who had the sealing irons, and I was present and put them on the record.

Q. Is that record iu your own hand,vritingf A. Yes, sir. Q. What seals did you apply? A. 910149 and 910145. These were applied and put on the

car after l\ir. Burton had :finished, and the car left the yard under those same seals. ·

Q. On October 22nd, 1923? A. Yes, sir, the car left the team-track that night.


page.l39 ~ CROSS EXAMINATION.

By Mr. O'Connor: Q. How long had you been working for the Southern 1 A. At this particular time? Q. Yes, previous to that time~ A. 01,1 I would say two years or three years; I was with

the Southern on two different occasions. Q. Were you working at night or in the day time, in Octo-

ber, 1923? A. Day time. l~. At what time did you get to work 1 A. Went to 'vork at eight o'clock iu the morning-some

mornings at seven. Q. Do you know at what hour you went to work on the

morning of October 20th, 1923 "? A. Went to work at eight. . Q. Do y'ou know at what hour you went to work on October

22nd, 1923~ A. Eight. Q. Did I understand you to testify that this car was placed

at seven A. :WI. on October 20th f A. Seven A. M., right. Q. How do you know that, if you did not get to work until

eight? A. It was there at that time, anu that is the time the record

showed the shifter was there on Virginia Street. Q. Then you are not testifying of your own knowl~dge as

to when it was placed~ page 140 ~ A. I did not see it placed, but it was there at

8 o'clock. Q. It might have beea shifted in the night before~ A. No, sir, it was not there the night before, because I went

around in the afternoons, and at all times during the day. Q. As a matter of fact did it not arrive during the night? A. I don't k1l.ow whether at that season of the year you

would call seven o'clock night, or not. Q. I mean didn't it come into Richmond during the night~ A. I suppose it did. Q. You don't know what tin1e they placed it for unloading,

do you f You know it was there at eight o'clock~ A. Yes, I know that. Q. Do you have a record showing the seal numbers to be

S. P. 44-Y, on this particular car~ A. Yes, sir, the seal hook is here. Q. Did you keep that record?

Southern Railway Co. v. Burton & Briel, Inc: 121

A. Yes, sir. Q. You made that record~ A. Yes, sir; that is the book I carried with me every day. Q. Is that in your handwriting"/ A. It is. Q. And the seals that were on this car on the morning of

October 22nd, \Vere what numbers 1 A. 44-Y. Q. Both of them~

A. Both seals. page 141 ~ Q. Both sides the same number?

1\. Yes. Q. Then on October 22nd, I believe you said you and Mr.

Briel inspected the car, and that you applied new seals, is that correct f

A. After he was there, yes. Q. Were these S. P. seals intact when you inspected them

on October 22nd ~ A. No, they had been broken, because the door had been

closed. Q. And you don't know when they were broken, do you Y A. I did not sec them broken.

· (~. Then ~!r. Btu·ton might have been in that car at any tirne between eight o'clock on October 20th and the time you nnd he were in there on October 22nd, might he not~

1\.. No, sir; they were found broken and the door nailed up at eight o'clock Monday morning the 22nd.

Q. cy ou don't kuo\v when they were broken t J.\. rrhey were all right at four 0 'clock on the afternooon

of Saturday, the 20th. Q. liave yon got a record of that 1 A. I don't know whether there is any record there, or not. Q. How do you know they were all right~ A. Because I would go around every hour, or half an hour,

during the day, and I carried my book with me,- and if there was anything wrong it would be noted.

Q. Didn't you testify that you had no independpage 142 } ent-or any recollection of these seals, except

after you had refreshed your memory from these tecords ~ Does it show aunvhere on these records that these seals were intact at four ~o'clock on the 20th'? .

A. I have not looked at .the seal book. (~; \Vell, look and see. A. And as I say, it would not be there prohahl:v, because

it was not required to take the seals every hour in the day.

12~ Supreme Court of Appeals of Virginia

Q. You don't know whether it was there at ..four o'clock October 20th, or not, do you 1 You think it was there 1

A. I know it was all right then. Q. Ho·w do you ln1ow it~~ Is it ·on the record¥ A. It is not on .the record. It has been three years since

I saw this book. As well as I recollect it was customary to take the seals during the day by anyone who inspected the cars. Of course, when they w·ere broken it was customary to apply new seals and show it on the record~ These seals 'Were all right when I left at four o'clock on the 2oth.

Q. What did you do when you found this car robbed, on October 2oth 1

A. How is that? Q. You testified you found this car robbed on October 20th,

5 boxes. What did you do about that 1 A. You could notice through the slats that someone had

been running their hands in between the rods page 143 ~ and taking apples.

Q. I asked you what you did about that after vou discovered it f · A. I made a report on lVIonday morning· when we went in ihe car and found what was gone.

Q. Why didn't you make a report then? A. Because I didn't feel t.hat I had the right to break the

seals and go in there; I was looking for Mr. Burton to come down most any minute.

Q. You testified that you knew it had been robbed through the slats? o

A. You could see that a few boxes had been tampered 'vith, but slightly.

Q. You did not report that to anybody? A. I don't remember whether I did or not. I know the

record was not completed, and ·was not made until Monday morning at the time we went in the car.

Q. As a matter of fact did not the railroad special ·agents, who have been referred to as po.lice, come down there on the morning of that day and nail up that door?

A. Which morning? ~· Q. October 20th 1

A. I don't know, sir. I don't la1ow what time he nailed it up; I know it was not nailed up Saturday evening at four o'clock and I found it Monday morning nailed.

Q. Do you know ·~{r. Wooldridge? A. Yes, sir ; he 'vas employed by the Southern

page 144 ~ at the same time I was.

Southern Rail~ay Co. v. Burton & Briel, Inc. 123

Q. ·He was one of the special agents, or police? A. Yes, sir, he was in my office.· When I left at four o'clock

Saturday it was all right, and I found it nailed up ~{onday morning; that is all I. can tell you. I was not on duty Sunday, at all.·

Q. If they did that before four o'clock on the 20th, the seals would have been bound to be broken, would they not Y

A. I would think so, yes. The seal would have to be broken if they closed the door.

Q. On this rec.ord that you have here, in your own handwriting you_have a notation "Consignee inspected car 11 A. M. 10-22-23. Is that the only record by whic.h you re-fresh your memory as to when the consignee inspected the carY

A. Yes, that is the only record. Q. Would you remember, without this, that it was on the

22nd? A. Oh, yes, after knowing what car it was and about what

time it was; I remember the car coming in robbed, and I remember going in there and going over the boxes and judging how many .boxes were taken out, and all.

Q. You were yard clerk then and worked from eight o'clock in the morning, and until four or ·five~

A. Yes .. Q. Your duties were, I understand, to inspect every car

and the condition of the seals? A. My duty 'vas to take a record of the car

page 145 ~ number and seals. "rho it was for, and 'vhere placed.

Q. How many of tho.se do you suppose you examined each day?

A. It varied; sometimes we would have three or four cars of perishable stuff on the team-tracks for delivery, and sometimes more; and then there were a great many other cars sometimes, down in the shopyard, loaded witl1 wood and lumber a.nd stuff like that.

Q. You ins'pected all sorts of cars, did you not 1 A. Well, I took a record of them; I don't know about in-

specting them. · Q. Do you tell the jury that you remember-:-without re

freshing your memory, that you have an independent recollection of tl1e number of the seal on this car?

A. I don't kno'v that I would remember the number 44-Y, without the record.

Q. Do you tell them you ·have an independent recollection of the seals being unbroken on this car, without refreshing your memory?

12-1: Supreme Court of Appeals of Virginia

A. I do. Q. Do you remember testifying before in this case? A. Yes, I was here and testified. Q. Did I understand you to say today that there were two

vents in each end of this car 1 A. Yes. Q. Did you say that there was one vent in each end of th~

car when you testified here before page 146 ~ A. One vent in each end.

Q. Yes. A. One vent open, I reckon. Q. Do you deny that vou said that this car had but one vent

in each end ~ .. • A. No, I don't deny it; I don't remember it. If you have

it there-but I hardly think I could have said that; you must have misunderstood me, I reckon; two vents open, one in each end.

Q. You now say there were two vents in each end of the car, and one at each end closed 1

A. ·That is correct. rrhat was the record ~Ionday morning, ye& I .

Q. Did you open the vents when you found them closed 1 A. No, sir. Q. 'Vhy didn't you! A. They were nailed up by the officers, for protection to

the fruit. Q. Who nailed them up' A. I was told that it was done by the police force. Q. You mean the Southern Railway employees~ A. Yes. Q. Does this record show the condition of the vents~ A. That record shows that the car came in under standard

ventilation, I think. Q. Does it show whether the vents 'vere open or closed?

A. They would be open, with standard ventila-page 147 ~ tion. ·

Q. Does it sho,v, that is what I asked you~ A .. It is supposed to show it, but of course I have not looked

at it. Q. I notice that. this entry here "Consignee inspected the

car 10-22-23'' is in a different or heavier lead .. than the rest of the memorandum on there. llave you any explanation to make to t4e jury as to that f

A. A different pencil was used, evidently, because it was at a different time.


l\{r. Marks: Now, if it is going to be passed around I 'vant it to come into the evidence.

The Court: If it is shown to the jury it may come into the evidence.

~Ir. Bethel: Yes, we will put it in. Mr. 1Yiarks: That is, that page, of course. The Court : Yes, that page.

page 148 ~ EXIDBIT NO. 9.

Oct. 20th, 1923.

Sou. #122243 seals-S. P. Co. 44/Y 44/Y :VIacDonald & Sons Advise Burton & Briel 840 Boxes Green apples Placed on Vt. St. team tracks' 7 A. 1L 10/20/23. W. B. received from yard 10.45 A. M. 10/20/23. W. B. to Rate Clerk 11.00 A. M. 10/20/23. W. B. Cashier 11.15 A. ~I. 10/20/23. Consignee notified 9.00 A. l\L 10/20/23. Consignee Inspected car 11.00 A. ~I. 10/22/23 Consignee started to unload car. Std. Ventilation. Doors and one \Vindow in each end

370 used. Car Robbed. 3 Boxes mty. Rods in 1 Box 3/4 full. ) end window 1 Box 4 apples gone ) bent West side Door Robbed through slats 1 Box 3,14 full Slipped to C. & 0. East side Door. 2 Boxes 3/4 full for Cold Storage 7 Boxes between doors with tops broken 10/22/23.

caused by shifting car in transit no apples out of these boxes gone. Memphis Tenn. W. B. 2305 10/15/23. Shipper :MacDonald & Sons, Frisco Pro 7418 10/15/23 'Yatsonville, Cal. S. P. 35 10/4/23

At request on behalf of shipper maker of B/L consents to and assumes all liability for delivery of this shipment without surrender of B/L, if shippers written order to do so is presented to delivering carrier. Chgs. Gtd. by Boncl.


(Car left team tracks night of Oct. 22nd, 1923.) Q. Is it not a fact that a colored man placed the seals on

the cars down there f You did not apply them, did you? . A. I told you a colored man applied them, that he carried the sealing iron, but that I took a record of the seal put on the car and put it. down on my record.

Q. What method do you use to determine whether or not. a seal is intact? "\Vhat method did you use in this particular caser

A. What method~ All I can tell you, if it is page 149 ~ se~led properly through the hasp and staples,

like it should be, and the seals are clinched. Q. What do you do to determine that? Do you go up to

the car and take the seal and pull it to see if it is firm, or just 'valk up to the car and glance at it 1

A. With some seals it is necessary to catch hold of them and try them, ·and with .some seals it is not.

Q. Do you know which you did in this case·? A. I don't know as I do; I know it \vas sealed; I examined

it very closely when it first came in, to make a record of it. Q. Where is .your office located on those yards? A. It is a little to the-I ·would say east-of the foot of

"Virginia Street. Q. Can you see both sides of the cars on those yards, from

your office? A. No, sir, not while the car is being placed; you can see

them when they come over and are going to be placed, when the engine brings them over; after they are placed you can not sit in your office and see; you can see some at the lower end, next to the river.

Q. There are a number of tracks there, are there not? A. There are tracks between the team-tracks and the freight

depot. Q. Suppose your office is here (indicates) ; there are tracks

down here, are there not Y A. Well, say the office stood right over there

page 150 ~ (indicates) ; Virginia Street tracks run north and south-go across the river and come on up-north

and south. ~Iy office was to the east of Virginia Street. Q. Is there just a single track there? A. The Virginia team-track. Q. tl ust one track~ A. No, there is a transfer track, on the inside of that, the

platform between that and the team-track. The track is so situated that a dray will back up from the Virginia Street side and unload the car, practically on the inside, for the con-

---------------· ------ - ·-. - - ----


. venience of getting in and out of the car, and without going to the transfer track which was next to it.

Q. If there had been a car, or a train of cars, on this transfer track that you speak of, could you see either side of the car on the Virginia team-track, from your office¥

A. You could see the southern end of the whole tracks. Q. I am talking about the .sides of the cars? A. Oh, no, you could not see the sides of all of them, from

the office. But you see my duty was to go around constantly during the day, because it was up to me about the delivery of these perishables, and it was up to me to know that they had a right to go into these cars before I admitted them, and I made a constant canvass, every hour and .sometimes oftener.

Q. Now, Mr. Barfoot, how do you determine this car was on the Virginia Street team-track~

A. How do I determine it? page 151 }· Q. Yes.

A. That is where I found it. Q. You ·are testifying from yo_ur personal recollection of

itt A .. Sure. Q. Not from any record? A. I kno'v it was on Virginia Street-all of their cars, they

would not be ready for delivery unless they were on Virginia Street. If it had been 011 any other track it '\YOuld have been a track they could not get to.

Q. Do you ever place cars for Burton & Briel -anywhere except on Virginia Sb~eet?

A. Sometimes if Virginia Street is full they could be placed· around on the spur until (hey could be put on Virginia Street.

Q. Is it or not a fact that seals do not have the same number-you do not find two seals with the same number, do you~

A. Some lines have the same number, yes. Q. They dof Are .you positive of that? What lines~ A. I think the Southern Pacific, for one. Q. Have seals of the same number f A. And other lines out there have seals of the same num- -

ber. Q. The same number f A. ·Not on different cars, but on the .same car. Q. In other words they are twin seals 1 A. I suppose that is what you might term it. Q. I mean seals applied to the same car? A. Yes.

128 Supreme Court of ~ppeals of Virginia

page 152 ~ RE-DIRECT EXAMINATION.

By Mr. Marks: . Q. Now, }Ir. Barfoot, since these gentlemen have put this

book-in evidence here I 'vill ask you a few questions about it. I notice your entry here ''Consignee inspected the car 11 A. M. October 22, 1923' '. '' Consignee started to unload car'' follows that; and this follows your entry as to the condition of the shipment, and the robberies, and one door closed and one window open. .Are these entries following the en-

. try "Consignee inspected car 11 A. :WI. October 22, 1923 ", made as a result of your inspection on that date~ I mean, do the entries follo,ving this line which reads ''Consignee inspected car 11 A. l\L 10-22- '23' '-the entry showing the condition which. you found at the time that inspection was made on October 22, 1923 ~

A. Well, this record was put on here, a complete record of it, after inspecting it at 11 A. ~I. with 1\tir. Burton, because up to that time I was not sure as to how many boxes were robbed and how many taken out, and of course that is in another pencil. Part of this record was made on the 20th, and this inspection wa.s made on the 22nd, which accounts for two different pencils being used. I just picked ·up another pen~il when that was inserted. This was a form used; I would get the w_ay-bill of the car and after I got the seals on the car I filled in who it " .. as for, and 'vho shipped it, where it was going to, and what it contained, .and all that.

Q. In other words, as I understand you, the enpage 153 ~ tries on this book, at the top of the page, before

the entry that the consignee inspected the car at 11 A. l\L on October 22, 1923, were made on the 20th?

A. Yes, sir. Q. And the rest of the entries, belo·w that, 'vere made on

the 22nd, after the inspection? A. Well, I would not say the rest of them, because this

carries the way-bill reference here, and I had the way-bills in my possession when the car :first arrived, and I had to get information off the way-bill, because the way-bill had

· to go to the office immediately so that this notice could be made out for the consignee, and a part of this record down here was made at that time, but this place was probably left open as was customary, so that when I went in the cat it could be noted.

Q. Your report here of the condition of the vents and the conditions you found in the car, was made as the result of that inspection on the 22nd?

Southern Railway Co. v. Burton & B_riel, Inc. 129

A. Yes, sir.

By a Juror: . Q. J\{r. Barfoot, is that team-track the same track that runs

across Cary Street to, I think, some produce company-or is that team-track a track where there are bumpers at the end of it~

A. The one that runs across Cary Street and up the alley? Q. Yes. A. That is the same track extended, but the part what we

call the Virginia team-track deliveries, would be page 154 ~ from J\Hll Street.

Q. South of Mill Street1 A. Yes, south . of Mill Street, down to the switch, which

holds five or six cars.

Juror: The reason I asked is simply because if the car was standing on that track 'vith the bumper at the end of it, and anything should cause it to be bumped into, it might probably cause the contents of the car to jam when it was bumped back.

RE-CROSS EXA1\ilNATION.

By Mr. 0 'Connor: Q. When was this record made, what day? A. Well, part of it was made on the 20th, and it was

completed_ on the 22nd. Q. What is that date at the top of the page, October 20,

1923 ~ What does that mean ? A. It means the day the car came in; that is the date the

record was started. Q. In order to clear this up-you Jon 't mean to tell the

jury that this one single entry here, of ''Consignee inspected car 11 .A .. 1\L, 10-22-'23, was put on there at one time, and no other entry made at that time, do you?

~Ir. ~larks: He didn't say that. . J\1:r. 0 'Connor: I say you didn't mean to tell the jury that,

did you? Mr. ~farks: The witness said the entry of the inspection

on the 22nd was made after the car was inspected on the 22nd and it was just as clear as it could be stated;

page 155 ~ I don't see how counsel could have misunderstood him. ?

The Court: I will permit the question.

130 Suprem~ Court of Appeals of Virginia

A. "\Veil, now, the· record of the damaged fruit and the record entered there of the time of delivery, was all made 'vithin thirty minutes. It is possible-! can not saY. for sure, but it is possible-that I may have entered the tll;ne of delivery as soon as I saw ~Ir. Burton come to the car. When I see a man has gone into a car I generally look at my watch the first thing and if I am near my book I generally jot down the t~me, and the1;1 of course I go rig·ht to him and hang around until he gets through and see what he says; but I do not know that the record of the damaged stuff and the record of the time that Mr. Burton inspected the car was all made within say thirty minutes time, because the record was taken out of · the car and put on this book immediately upon my return. It did not take 1\Ir. Burton long to inspect it.

Q. I have here w·hat you say is a record of the seals on this car. I notice a number of cars on this same page, six of them, to be exact-eight, I thii1k. The only car here of which the number of the seal is given, and notified 9 A. M., is the car in question. Will you explain to the jury why a similar record is not made of the other cars here, and why only this particular car¥

A. Because the seals on the other cars had been broken and they were being unloaded, people hauling from them.

Q. Why didn't you mark on there the date they were notified~

A. Well, they were unloading. page 156 ~ Q. Does this show they were unloading?

A. That long dash represents unloading. This da.sh represents the day released. (Indicates on book.)

Q. Now. we will take another page. Here is a car here, it does not show that it was released or unloaded, and there is no record there of any notice or any seals on it. Why is that! ·

A. Which car is it? Q. This car right here. (Indicates on record.) A. That is a car of brick, from the brickyards, and they

never have seals on them. Q. Did you mark on here the time notice was given, on that

car, like you did on this car in question! A. You mean consignee's notice ? Q. Yes. A. Well, it was not customary to notify people by 'phone.

unless the cars contained perishables. Of course we did lots of times, but it was not required. Perishables were the things we were behind. We sent out the written notices the same


day the cars arrived, on bricks, lumber and stuff like that, and that was sufficient.

Mr. Bethel: We want to introduce the seal record. The Court: You may have copies made from those pages,

and file the copies.


page 157 ~ EXHIBIT NO. 10.

SOUTHERN RAILWAY SYSTEM

Va. St. 10/20/23. ___________ .,--:Division Cars Delivered To. _____________________ R. R.

Numbers and Condition of Seals Hour N.orE SorW NorE SorW Deliv'd lnitfuls Numbers Kind Destination Bide Side End End

1 FOE 32444 Blalock 2 3 FOE 42970 Heisler 4 5 NH 90787 Fulton Brick· Wks 6 7 CC&O 3106 W. D. Duke 8 9 Sou. 335894 West Point

10 11 Sou. 122243 Burton & Briel notified 9 A. M. 12 13 14 15 16 17 IS H.T.T.Y2 19 20 SAL 28621 W.D.Duke 21 22 VGN 18456 Robions, V n. 23 24 25 ~6

27 28 29 30


page 158 \ (EXHIBIT NO. 10, SECOND PAGE)

Form 613

Station ^Date 10/20 1923Cars Received From R- R-

Niimbers and Condition of Seals

Hour Kind N or E S or W N or E S or WRec'd Initials Numbers Ice Destination Side Side End End

(1) Cabbage .. 14(3) Apples(6) Tile X(7) Brick x(9) S Paper (Trading out (D. H. Hey)

(11) Apples S. P. Co. 44/Y 44/Y

(20) Brick(22) Manure (Loading out) Billed out

page 159 D. S. WOOLDEIDGE,a witness introduced on behalf of the defendant,


DIRECT EXAMINATION.

By Mr. Marks:Q. Mr. Wooldridge, you live in Richmond, do you?A. Yes, sir.Q. Were you in the employ of Southern Railway in Oc

tober, 1923?A. Yes, sir.Q. In what capacity?A. Sergeant of Police,Q. That is, of the special service of the Southern Railway

Co.?A. Police department of the railway.Q. Are you with the Southern Railway now?A. No, sir.Q. How long has it been since you were in that service?A. I left the service April 15, 1924.

Mr. Bethel: We object to the question. Ask him if he isnot in the service of the C. & O.


Q. To what service did you go then? A. To the law department of the C. & 0. Railway. Q. You have been there ever since 1 . A. Yes, sir. Q. Does the fact that you have been in the law department

of the C. & 0. Railroad since the time you left page 160 ~ the service of the Southern Railway Company,

. affect your testimony in this case in any way 1 A. No, sir. Q. Have you any interest in the outcome of this action, one

way or the other f A. No, sir. Q. Counsel's apparent suspicion that your service with

the C. & 0. might prejudice your testimony at this time, is founded, or unfounded, which 1

A. Unfounded. Q. Now coming back to this particular case, do you recall

having a~y connection with this Southern car 122243, on October 20th, 1923, while you were in this police service 1

A. Yes, sir. Q. Do you know what you did, and what you found~ A. Yes, sir. Q. Please state what the condition was that you found' A. On the morning of October 20th, 1923, I was called by

l\ir. Lohr, of the Southern Railway Company, to inspect a car on the Virginia Street siding-a carload of apples---'apparently robbed. I went there and inspected the car and found that the rods in the top end windows were bent, and apples to the extent of a quarter or half a box had been robbed from four or five boxes, at each end of the car.

Q. How many boxes in each end of the car f A. Four or five boxes, one-quarter to one-half

page 161 ~ of the contents from each box. The side-doors ·had been robbed, through the forcing of the door

used as a ventilator; that is, the slats were broken on each side On one side the hole 'vas bigger than on the other; on the side of the smaller hole a quarter of a box of apples had apparently been robbed from two boxes. On the side of the larger hole there had been a quarter of a box of apples taken from three boxes. That is as 'veil as I remember. The car when I inspected it was under seal protection.

Q. It was under .seal protection at that time, was it~ A. Yes, sir. Q. 'Vhat do y~u mean by that-seal protection f A. I mean that the seals were intact on the side doors.

134 Supreme Court of Appeals of Virgmia

Q. Those were the only doors that carried any seals, were they not~

A. Well, for perishable freight, yes. Q. I mean for entrance and exit, to and from the carY A. Yes. · Q. Did you close either of the solid doors Y

Mr. Bethel: We object. The Court: Tell what you did.

A. I nailed the door that had the largest hole in itf Q. The door or the ventY . A. The side door. I did not do anything to the end vents,

that I recall; apparently all of the apples were page 162 ~ gone that could be reached through the end vents.

CROSS EXAJ\IITNATION.

By Mr. O'Connor: Q. I believe you said that ~1ister somebody called you up

that morning about the car? · A. Mr. Lohr came into the office and told me about it.

Q. And you went right down, did you? A. Yes, sir. Q. Did you break the seals then and go in and look to see

what was taken, and examine the car-or stand outside~ A. I examined the car from the outside.

. Q. Did you notice whether it was buckled or not, or shiftedt

A. I noticed some boxes broken in the center of the car, ·appearently from rough handling of the car or improper ·bracing of the load, I don't know.

Q. It was one or the other? A. One or the other.

By the Court : · Q. What day do you say you were there! A. October . 20th. Q. In the morning? .li. Yes, sir, between nine and ten.

page 163 ~ RE-DIRECT EXAMINATION.

By Mr. ~{arks: Q. Do you recall about what time in the day it 'vas that you

made this examfna tion ~


A. Between nine and ten o.'clock in the morning of Octo-ber 20th. · ..

By Mr. O'Connor: Q. When you closed that door and nailed it up you broke

the seal on it, didn't you? A. Well, I don't recall. Q. Necessarily that is right, is it not~ A. If the car was properly sealed I would say I would.

By Mr. Marks: Q. But if it broke the seal you nailed the door up, so you

had a nailed door in lieu of the seal that was broken Y A. Yes, sir.

(vVitness here stood aside.)

Note : Court here adjourned till tomorrow morning, July 2nd, 1926, at 10 :00 o'clock. .

SECOND DAY-July 2nd, 1926, 10 o'clock A. M.

page 164 } EDW AR.DS, a witness introduced on behalf of the defendant,


DIRECT EXAMINATION.

By Mr. ~larks: Q. Mr. Edwards, you are no'v in the employ of the South-

ern Railway Company, are you not? A. Y~, sir, chief clerk to the agent. Q. How long have you been employed by the company¥ A. Sixteen years. Q. It appears in this case that the car in question was

delivered to the Southern Railway Company at Memphis, Tennessee, on October 15th, 1923, at about 10 P. M.; that it moved from Memphis to Richmond over the lines of the Southern Railway via Asheville, the direct route, and arrived in Richmond at about 7 o'clock, P. :i\ti. on the night of October 19th, and was placed in position for unloading at 7 o'clock A.M. on the morning of October 20th. From your contract with the railroad business and knowledge of the usual time required for movements, accor<;ling to the schedule, if you know the schedule on this movement, please state what char-


acter of movement that was, with respect to the time required · to bring the car from l\tlemphis to Richmond 1 .

A.. The average time from :Wlemphis to Richpage 165 ~ mond, approximately about one thousand miles,

is from four to five days. This car moved in about four and one-half days.

CRQSS EXAMINATION.

By l\tir. Bethel: . Q. Do you know the exact distance from ~Iemphis to Rich

mond! A. I have not figured it out to the mile, but it is approxi-

mately one thousand miles. Q. Will you figure it out for us ~1 A. Yes, sir. · Q. You need not do it right now, but a little later. Do

you kno'v how far it is from vVatsonville, California, to Richmond?

A. Approximately thirty-five hundred miles. Q. It is about three and a half times as far from Watson

ville, California, as it is from :Memphis, to Richmond, is it not?

A. That's right. Q. How long have you been in the railroad business ~ A. About sixteen years. Q. What is your position? A. Chief clerk to the agent. Q. Don't you know that cars come frequently from Wat-

sonville, California, to Richmond, in ten. day.s? A. At that time they did not. Q. Do they do it now? A. Not from Watsonville proper, I don't think; but from

· that vicinity we are getting them here within ten page 166 ~ days, at the present time.

Mr. Marks: That may be, your Honor, but the Southern Railway Company is not responsible for any part of the movement except between l\'Iemphis and Richmond. All we are concerned with is the movement over the lines of the Southern Railway Company.

The Court: \Vhat is the object of that testimony1 Mr. O'Connor: The object is this: to compare the move

ment over the Southern, with the movement over the other roads, according to the mileage, and to show the time it took for the entire trip of 3,500 miles, as compared with the


time it took for that part of the trip over the Southern, of 1,000 miles. I think thos·e facts should go to the jury for whatever they are worth.

The Court: You have not shown that they were operating under similar conditions, and that evidence .is excluded.

By 1Ir. Bethel: Q. 1\tir. Edwards, do you know the conditions under which

this car was carried on the other lines¥ A. I do not. Q. On the Southern Pacific, or on any road before it was

received by the Southern¥ page 167 ~ A. I do not.

Q. Do you know whether your road has investigated the handling of this car from the time it received it until it was given to the initial carrier~

A. From the records read by. :Nir. :Niarks on yesterday, they indica ted that.

Q. Is that the answer to my qustion ~ The records Mr. l\farks read yesterday 'vere concerning the movement from :Memphis to. Richmond ?

A. That's true. Q. I am talking about the movement from Watsonville to

Memphis. A. I am not familiar with that. Q. You don't kno,\~ f A. No, sir. Q. Are you able to say that the Southern Railway has not

investigated that movement f A. I can not tell you.

Mr. l\farks: I object to that as immaterial. The Court: What has that got to do with this case' You

are not suing the initial carrier. l\fr. Bethel: We very much appreciate that fact, but we

are suing the Southern Railway and I want to show that this railroad knew the condition of the stuff at the time it received it.

The Court: I did not so understand your question.

page 168 ~ Q. Then you don't know whether the Southern Railway inspected that car of apples when it re

ceived it, or not~ A. I can not say. Q. Do you kno'v whether that car had the same seals on it


when it ·arrived in Richmond, as were put on it at Watsonville, 'California Y

A. Yes, sir; the record of the Yard Clerk showed that. Q. If the same seals were oh it when it arrived in Richmond,

as were put on in California, would it not be proof that the Southern Railwa·y did not inspect it when it received it Y

A. It would appear so, yes, sir.


page 1~9 ~ N. E. HANSON. a witness introduced on behalf of the defendant,


DIRECT EXAMINATION.

By Mr. Marks: Q. What is your name and residence~ A. N. E. Hanson, Richmond, Virginia. Q. What is your business? A. Fruit Inspector. Q. How long have you been engaged in inspecting fruitY A. Eight years. · · Q. During that time have you had occasion to inspect ap

ples arriving at Richmond in carload lots Y . A. Yes, sir.

. Q. Did you make au inspection of this car Southern 122243, for Burton & Briel, Incorporated, in October, 1923?

A. Yes, sir. Q. For whom did you make that inspection Y A. Burton & Briel. Q. Where did you make the inspection Y A. At the Richmond Cold Storage. Q. Is this your report of the inspection that you made at

that time?

page 170 ~ }.fr. Bethel: Now, if your Honor please, when . we presented the inspection 1·eport of Mr. Bur-

ton, if I recollect correctly you observed that it was not to be used, as a self -serving paper. For the same reason we ask you to exclude this.

Mr. Marks: Mr. Burton's paper was in the shape of fl claim he was to make. · The Court: This is a report made by an agent of the plaintiff.

Mr. Bethel: lVIr. Burton made his report-

.Southern Railway Co. v. Burton & Briel, Inc. 139

The Court : That was a self -serving paper; this is not. This. is a report your agent made. -I do not think you could use evidence occurring a few days later, but to contradict the statement another 'vitness made as to the condition of the fruit this witness is competent.

Mr. Bethel: All right.

By Mr. Marks: Q. Is that the report of the result of your inspection made

at that time? !.. Yes, sir. Q. To whom did you make that report1 A. To the firm of Burton & Briel.

· Q. You delivered that report to them at the time, did you~ A. Yes, sir. Q. Now start out, omitting the formal part about the car

number, place, and so forth-

page 171 ~ 1\1r. Bethel: We ·are going to object to the reading of it, until it is introduced as an exhibit.

Mr. Marks: Counse~ knows as well as I do that the paper is coming in.

Mr .. Bethel: Well, put it in. . Mr. Marks: I have the right to have this witness explain

it. The Court: Suppose you file it now as an exhibit in the

case. Mr. Marks: All right, sir.

Note: The paper referred to is here introduced as Defendant's Exhibit No. 2, and is in the following words and figures, to-wit:

p~ge 172 ~ Car No. 122243 Initial Sou. Track R. C.- 'S. R. R. Sou. Date 10-24-23 Time inspected

P. M. Seal Broken-No. Seal Applied, M. I. B. No. Hatches 0 or C None Plughs

0. or C. None. Drain Pipes 0. or C.-None. Ice. No. Heaters x Temp. Out x Temp. Commodity

-Top 52, Bottom 49. Weather Oldy. Condition of Car. Fair. Was car equipped with standard bracing and false lloorsf

No. · Commodity-Apples. Kind of Containers, Boxes.


Loaded 01{ High-4 7 5 \Vide 8 long-22. Grading Fancy. Pack 0. K. State of Maturity Various. Boxes of Newtons Pippin Apples. End to end load. Strip-

ped 0. K. Wedged at doorway with 1" x 6" pieces. Load slightly

buckled in center and find 14 boxes with covers and side slats broken. 3 boxes 'lt A end of car with· contents all pilfered and 2 boxes at A end 1/6 pilfered, 1 box north side door contents pilfered, 2 boxes south side door 1/3 pilfered. Seals broken by R. C. S. employees and states same wer.e intact. Top end vents open and bottom e:rid vents closed.

1\<looreheacl Inspection Bureau.

1 side door closed 1 side door ventilated. Red Wood Brand. Various size packs. Boxes repacked show less than 1% decays. Turning ripe and· firm, 20% yellowish color. Balance green. Runs light to orchard defects a~d blemishes.

N. E. HANSEN, Insp. M. T. B.

page 173 ~ By Mr. Marks: Q. No'v start out with your inspection of the

seal, and state what that is. A. (Reads from report) ''Seal broken. No.'' In other

words, when we enter a car, if the seal is not already broken we have to break the seal to ente~· the car, and if I break a seal I always take a record of the number of the seal. If it

, is already broken I do not. . Q. That means when you inspected the car at the Richmond

Cold Storage, the seal had been broken1 A. Yes, sir.

Mr. Bethel: The report says t.he seal was broken by the Richmond Cold Storage employees. It is three lines from the bottom.

Q. That means that you did no.t break the seals, I under-stand? ·

A. No, I personally did not. "Seal applied. M. I. B." In other words, if I find a seal on a car, and break it, upon finishing my inspection I put on my own seal, and keep a record of the seal I apply.

Q. So that notation "Seal applied. 1\L I. B." means that you did not apply a seal on finishing your inspection?


A. Yes, sir. "l.Iatche.s, none. Plugs, none. Drain pipes, none. No ice. Temperature, top .... "

Q. That about hatches· and drain pipes, that refers to refrigerator cars, does it not~

A. Yes, sir. page 17 4 ~ Q. There is supposed to be none in a v.entilator

car? A. No, sir. "No ice. Temperature, top 52; bottom 49. Q. What are those temperatures? A. That is the temperature taken of the top layer of ap-

ples; with the car loaded full. Q. How do you take the temperature of apples? A. With a thermometer specially made for that purpose. Q. Do you take it of the apples themselves or of the atmos-

pheric conditions surrounding the apple's? A. The thermometer is inserted into the apple, or the

commodity that you may he inspecting¥ Q. So that was the temperature of the apple itself taken

that way? A. Yes, sir. The weather was cloudy. Condition of the

car, fair. Q. What do you mean by condition of car fair¥

· A. Well, as far. as the fruit was concerned there was nothing wrong with the car. In other words, we are not car inspectors, but if we find loose doors, plugs, or any equipment ·which may be injurious to the fruit, we generally note it in our inspection.

Q. "\Vas there anything the matter with that car construction?

A. No, sir. Car was not equipped with standard bracing and false floors. Commodity, apples. l{ind of containers, boxe.s. Loaded 0. J{.; 4 & 5 high~ 8 wide, 22 long. Grading, fancy. Pack, 0. 1{. State of maturity, various. Boxes of Newton pippin apples. End to end load. Stripped 0. 1{. \Vedged at doorway with 1 X 6 inch pieces. Load slightly buckled.''

Q. Wl1at do you mean by "Wedged at doorway page 175 ~ 'vith 1 x 6 inch pieces".

A. That is the size of the rna terial used. Q. \Vhat do you mean by "w·edgecl at doorway", explain

that. A. If the boxes-the length of the boxes is not. so as to

take up all the slack from the end of the car, from one end to the other, they generally strip them or brace them at the doorway with matei·ial, so a.s to hold them and keep them from shifting.

.142 Supreme Court of Appeals ~f Virginia

Q. Was this car braced at the doorway'? A. I have it here wedged ~t the doorway with 1 x 6 inch

pieces. Q. Is a 1 x 6 inch piece a sufficiently strong piece of wedg.;.

ing for a load of this character? A. Not with that. number of boxes in the car.

Mr. Bethel: We object to the question as leading. The Court: Objectioi1 overruled. Mr. Bethel: I object to it for the reason that it is leading;

and secondly, because it is immaterial, and the report itself shows that the bracing was not broken, and if not broken it was sufficient, it makes no difference if it was but an inch in diameter.

The Court: Objection overruled. Mr. Bethel: Exception.

Q. Please explain why the wedging of that size would not .be sufficiently strong wedging to maintain the position of the load such as this Y

A. Well, there is too much weight behind the wedging; a 1 x 6 inch piece is very small ; the wedging should .

. page 176 ~ be of 2 x 4 material. · Q. If you know, st.ate how wedging of that sort

would fail to sustain the load and hold it in place. Would it be apt to break, or give? Just explain to the jury what the condition would be, with a wedging of that sort Y . A. Well, we find carloads of apples braced with that sort of piece arriving at destination in a damaged and shifted and broken condition.

Q. Would that character, of wedging necessarily have to break in order to permit shifting and breaking in two, in the sense it would be severed into two parts?

A. Yes, it would have to break all right. The bracing or wedging, either one, 'vould have to give, if the commodity was properly loaded and the wedging or bracing was properly placed in the car.

Q. There is a difference between" giving" and "breaking", is there not?

A. Well, yes, it d~pends on how the bracing or wedging is constructed. There are lots of times when we find what is called bracing or wedging nailed to the side of the car, and if that gets loose the load may shift; .but tl1at would not be standard bracing. With standard bracing the only way a "shift would occur would be that the bracing would break down.

------~-~--------

Southern Railway Co .. v. Burton & Briel, Inc. 143

Q. Can you state what the condition of the bracing was in this car when you made this inspection T

·page 177 ~ Mr. Bethel: Objected to. It has not been shown that there was any in. it.


A. No. I say "wedged at doorway with 1 x 6 inch pieces". I can not state whether they had been broken, or not.

Q. Will you .state whether, in your opinion as a fruit inspector, and in the light of your experience in inspecting shipments of this kind, that a load of apples such as that contained in this car would shift in an ordinary railroad movement from California to Richmond, with a bracing 1 inch by 6 inches such as your report shows was used in bracing this car? '

Mr. Bethel: ~Iy objection is that the question is irrelevant, for the reason that we are not concerned with what happened between California. and Memphis, to this shipment. We are only suing the Southern Railway Co. It is the same objection we made a little while ago.

The Court: Objection .sustained.

Q. }lr. Hanson, please state whether, in your opinion, in vie'v of your experience in inspecting cars of this character, that a shipment loaded as this shipment 'vas, braced with 1 inch by 6 inch bracing such as your report shows was used in thi.s car, would shift", under an ordinary railroad movement,

taking into consideration the average movement page 178 ~ which a freight car is subjected to in ordinary

railroad freight operation~ A. Yes, sir; a 1 x 6 inch bracing is absolutely too weak;

· the material should not be less than 2 x 4 inches in diameter, and absol~tely sound material free of knots, and properly constructed.

Mr. Bethel: We ask that the question and arut:wer be stricken out, as there is no evidence that the car was braced. The witness said a moment ago that this was a wedging in this car, and if the car had not been properly loaded the wedging would have broken if it had been too weak; but regardless of the size of it ~t held and did not break. ·Now Mr. Marks has gone of-f into the realm of .shifting cars with


proper bracing. There is no such thing in this case. This was a stripped car, not a braced car.

The Court: Objection oyerruled. Mr. Bethel: Exception.

Q. Now since counsel has sought to make the distinction between bracing and wedging, I will ask you the same question except instead of using the 'vorcl ''bracing" I 'vill use the

. word "wedging". Is wedging of that size sufficient to with-stand au .ordinary ·movement tQ which a freight car is subjected in railroad freight operation?

.A. "\V ell, there are different kinds of wedging. page 179 ~ Sometimes if you just have .a space of probably

six inches, or six to eight inches, if you make the wedging strong enough if a box were to come right up against something like that you would not need any bracing. If there wa.s a space of six to eight inches at the doorway, and there was no bracing, the wedging 'vith material of the size which was used in this car would naturally be too weak.

Q. Now go ahead and pick up from that point your report, and read on .

.A. "Load slightly bucked in center, and find 14 boxes with coyers and side slats broken.''

Q. Now please state if that buckling which you note on your report could have resulted from the use of the 1 inch by 6 inch "~edging in this car, instead of the larger wedging which you said should be properly used~

Mr. Betl1el: I have not beard him say that a larger wedg..; ing should ha.ve been used. We object to the question as not being supported by the evidence.

The Court: Objection overruled. ~Ir. Bethel: Exception.

A. Yes, we find cars loaded in this manner buckle; also cars not loaded in this manner buckle.

Q. So it could have been caused by the use of that size 'vedging, as I understand you f

A. Yes, sir~ Q. Now read on ..

page 180 ~ A. Three boxes a.t. A end of car with contents all pilfered, and two boxes at .A end one-~ixth

pilfered; one box north side door contents pilfered; two boxes south side door, one-third pilfered. Seals broken by Richmond Cold Storage employees, and stated same were intact. Top end vents open, and bottom end vents closed. One side

•


door closed, one side door ventilated; Redwood brand; various size packs ; boxes repacked show less than one per cent decays. Turning ripe and firm; twenty per cent yellowish color; balance green. Runs light to orchard defects and blemishes. '' Signed, Hanson.

Q. You say boxes repacked show le.ss than one per cent decay. Does that refer to the boxes which were repacked that had buckled f

A. No, sir.

!{r. Bethel: Objected to as leading. The Court: Objection overruled. Mr. Bethel: Exception.

Q. Please refer to that point in your report and state what_, boxes that phrase referred to : ''Boxes repaclred sliow less than one per cent decay."

A. Well, boxes taken from various parts of the car. In making an inspection you will not inspect the bad order boxes for condition of fruit-that is, to show the condition of the balance of the car-although you will inspect the bad orders

to determine the amount of damage done. That page 181 ~ is sometimes done while they are still in the car,

or after the commodity has been unloaded. I\{any . times the bad order boxes are inspected after the car has been· unlpaded, so as to determine the amount of damage to the entire bad order boxes.

Q. You say "twenty per cent yellowish color, balance green.'' Please state, from that and tl1e other part of your report which you have read, whether those apples were in good or had condition at the time you 'inspected them, disregarding the 14 crates which were damaged by buckling, and the ones ·which were pilfered.

A. There ·is nothing on here which reports any damage to the lot, whatsoever, so far as the fruit is concerned.

Q. Please state \vhether the condition of the fruit as shown by your· report was a proper condition, for storage in thf' storage warehouse through the season~

A. Yes, there is· nothing here to indicate that the commod-ity could not be stored. :

Q. "Orchard defects and blemishes "-what does that mean, as used in that report~ "Runs light to orchard defects and blemishes".

A. Well, such as stem punctures, sca1ls, scale and different orchard defects.

Q. Here is the government inspection report, which is


plaintiff's Exhibit No. 4 in this case, and says: "The apples are of fine quality, in hard condition and practically free from defects affecting grade. Appl,es are. from green to yellowish green color, and fancy grade.'' Is there any differenc.e in

the condition of those apples as shown by this page 182 ~ government report, and their condition as shown

. by your report, disregarding of course the 14 crates which were damaged and the 5 which were pilfered Y Just explain 'vhat difference there was, if any. State first if there was any difference, and, if so, 'vhat it was.

A. There is not very much difference in either inspection, that I can find.

Q. And in your opinion· these 821 boxes-being the number remaining after eliminating the 14 boxes which were damaged by buckling, and the 5 which were pilfered-were in good .condition for sale or storage, at the time you made your inspection -as shown by your report?

· A. Yes, sir. Q. It appears in evidence in this case that on October

·20th, 1923, the fact that these boxes had been robbed was discovered, ancl that one of the ventilator doors was closed; one of the solid doors was closed and nailed, ·and that at that time one vent, being the lower vent in the end of the car, was closed ; and that the car was not ordered by Burton & Briel to the Cold Storage until October 22nd, which was .two days later. At that time the temperatures were as follows: On October 20th, high 63, low 53, and mean 58; on the 21st, high 62, low 47 and mean 54; on the 22nd, high 57, low 47 and~mean 52. Now with those temperatures, ~nd the vents of the car in the condition which I have stated, please state whether

. in your opinion that period of approximately two page 183 ~ days, with . the vents in that condition, could

have materially affected this shipment-the other ventilated door and the two windows in the top of the ends of the car being open~ .

A. It would not affect the commodity so that it could be detected by any fruit inspector. He could not see any material damage there, with those temperatures, and apples will not damage with those temperatures.

CROSS EXAMINATION.

By Mr. Bethel: Q. By whom are you employed? A. The lVIorehead Inspection Bureau.


Q. For whom does the Morehead Inspe~ti:on Bureau examine cars, principally~

A. For anyone who requests an inspection. Q. Did you hear my question? I asked you for whom they

. examined principally? For whom do they do most of their examining?

A. The only way I can answer that is to say for any one who is financia.lly interested in the commodity, either as carrier, shipper or receiv.er.

By the Court: Q. For whom do you examine principally1 A. For everybody. Q. I .said principally. Don't you know what I mean by

that, when I say principally? A .. Your Honor, right now I could not state.

page 184 ~ By Mr. Bethel: Q. Don't you know that .ninety-five per cent of

your inspections are done for the railroads T A. No, sir, I do not know that. Q. What per cent of· them is done for the railroads l A. I know that in 1924 there were as many men employed

in California and in the 'vest, for the shippers, as the Morehead Inspection Bureau had working for all the railroads.

Q. I am not talking about California, but in Richmond 7 A. Oh, in Richmond! I beg your pardon. Q. ·Do you examine for the railroads, or for the commis

sion merchants, as a rule~ A. Why, in Richmond, for the railroads, yes, sir. Q. It seemed to me my question was plain. You did not

'vant to evade it, did you T A. No, sir, I had no idea of doing so. Q. How was this car loaded? Was it loaded from end to

end1 A. According to ~y inspection, yes, sir. Q. Now look at the government inspection and see how it

w·as located? A. Loaded entire length of car. Q. When a car i.s loaded from end to end, the· entire length

of the car, loaded solid, as we call it-when there is rough handling <?f the car what usually happens-rough handling of the car by the railroad¥

A. We generally find broken containers. Q. How are the containers broken'

page 185 ~ A. By jamming of the car. Q. That you call buckling, do you not f

148 Supreme Court o~ Appeals of Virginia

A. Yes, a load can be jammed and buckled; and still be jammed and not buckled.

Q. Yes, sir, that is what I thought. And don't you know that a car never buckles unless it is loaded tight¥ Don't you know that is the only 'vay it can buckle, when it is loaded tight 1 Don't you know that to be a fact?

A. That depends on how tight, yes, sir. . Q. All right, give me every single illustration you know

about, of what it depends on. A. If there is a bracing that would extend more than six

inches-that is the bracing itself-then probably when a shifting occurs it will not buckle, but when it is loaded up less than .six inches when the boxes come together they will probably buckle.

Q. Do you know the difference between buckling and shift-~! .

A. Yes, sir. Q. Shifting is when there is extra space in the car; ·and

buckling is when the car is loaded solid from end to end and spews up in the middle, isn't it 1

A. Yes, sir, the boxes ri.se up. Q. Then I say a car never buckles unless it is loaded tight,

does itt · A. Well, as I stated, if there is only a space-do you mean

. when there are any wedges or braces between page 186 } the boxes?

Q. Read that government report there and see how the car was stripped. It was stripped every other case and stripped on top, was it not 1

A. Yes, sir. Q. Is that the proper way to strip it 1 A. Yes, sir. Q .. Was it not loaded from end to end? A. Yes,. sir. Q. Could that car shift 1 If the apples took up the full

space of the car could the apples shift about in that carY A .. No2 sir. Q. Of course not, it is a perfectly obvious proposition.

Then if it didn't shift it buckled, didn't itt A. Yes, sir. Q. And it buckled here f A. Becau:se it was jammed. Q. Then we come back to the original proposition that you

stated as au expert' on this stand, that buckling never happens unless the car is loaded tight. Is that correct. I just want a yes or no answer.

Southern Railway Co. v .. Burton & Briel, Inc. 149

The Court : .. Answer th.e ;question. Witness: I don't just get him on that.

(The question is here read to the witness.)

A. Yes, that is correct. Q. Then you found this car had buckled.

page 187 ~ Then what did that 'vedge have to do with it? ~ Well, that was put in there to keep the slack

out of the boxes. Q. How much slack w.as there ~ A. I do not state here. Q. Did you examine tl1e cart· A. Ye~, .sir. Q. How :tnuch slack was in itt A. I don't know of any slack. Q. Do you know what size stripping it was~ A. You mean this wedge stripY . Q. Yes, that or any other that was in there? A. The wedge strip was 1 x 6 inch pieces. Q. Did not that 1 x 6 inch stripping take up all the space

there wa.s? A. It probably did, all right. Q. Then how could you put in any bigger pieces, if they took

up all the space there was for stripping? A. I don't kno'v that it did take up all tl1e space, because

the load had already shifted. Q. Why don't you know? You 'vent do'vn there and in

spected it? Now, Mr. Hanson, 'vhen you sa'v that car was it receiving proper ventilation? Or was it receiving stanc1-ard ventilation?

A. No, sir. Q. What was the condition of the fruit, with regard to its

maturity? A. The condition of the fruit?

page 188 ~ Q. Yes, the apple.s? A. Turning ripe, and firm.

Q. Yes, turning ripe. Does the goYernment report there say they were turning ripe?

. A. I find nothing on here about turning ripe. Q.. Then there is right much difference between your re ..

port and the United States government inspector's report, is there not ? ·

A. He has not· stated anything about the maturity of the apples, other than that they were in hard condition and prac· tically free from all defects affecting grade.

---------------------------------

150 .Sup_reme ~ourt of Appeals of Virgip.ia

Q. Well, now, Hanson, very fortunately the same man who gave his deposition in this case happens to be the governor inspector; he says here that the apples were of good quality and in excellent shipping condition. Mr. MacDonald, the owner of the car, says they were of excellent quality and condition, hard and firm, and of go.od keeping ·quality; the apples were Newton pippin variety, California· fauct grade, and of excellent quality and condition, grown in :;t- district noted for raising apples of exceptionally good keeping'quality. From the statement of the governmei1t in-spector -·and Mr. MacDonald would you th~nk the apples were rip.e when .shipped~ . - - · --

A. No, I certainly ·would not. _ Q. Then if they were not ripe when shipped there is right

much difference between the condition of them- in Richmond when you examined them, and what existed in· California; is not that true.? .. . · · .. · - · -.

·A~ I do not see any material difference in here, page 189 ~ which· says they are firm and hard. Were they

not t_urning·_ :ripe? It is natural for them to be . turning ripe after they· are picked. · .

Q. What ·is the natural color of the Newton pippin 7 ·! A. When matured, or green? __ Q. I mean _unripe-that is unripe-when they are not ripe

-when they are pulled of,f the tree,- and yet not mello.:w or ripe-picked for- storag~what is the color .o.f the· apple at that time? · . A. Yell ow and gre.en. _

Q. Green tinged with yello,v, is -it notY A.. That is the characteristic color;. it depends on the con-

ditions: · · Q. We are talking about these apples? A. ¥es, .sh.- · . .. Q. When they got here to Richmond if some of them were

yellow that_ did not affect the grade, did it? · ·· A. No, sir. · . Q. Now in this report-you say you made this report to

,Mr. Burton 1 A. Y'es, sir. _ Q. Did you send a copy of it to your home office, or fur-

nish your company with a copy? · A. I keep a file copy .here. Q. Was a copy furnished to the railroad? . . . A. Not that I know of. I could tell by Jooking -at -my -file. Q. I notice on this report that you made here that you say

--------


the condition of the car was fair. What did you mean by· that? · ; · _

A. Well, possibly part of the car, or somet'hing like that, or ··one·' or two pin·ts of the ceiling, might have been

page 190 }. loose, and I could not call it a good .car; and could not call it a bad· car; but there was nothing about

the car that. ,I could see which would affect the. _hauling of the apple's. - ~ · . ·

Q. Didn't you telll\tlr. Marks just now that the equ~pment was in good condition~ - ·

A. No, sir. . Q. You say thaf this· car was ·loaded 0. 1{. What. do you

mean by the car being loaded 0. 1{. f · . · ' A.· It ·was ·loaded all right. . · . . _. Q. Properly, it was a car, as I understand, loaded from

end to end, and stripped, and was ·not the khid of car "that required bracing; is not that true? ·

A. I -don't think it needed any bracing, from my inspeQ-tion. , _

Q. You say the pack was 0. 1{. What do you· mean by that? · ·· · . · · ·

A. The pack of· the apples-of the boxes.

AQ. Tyhr~ ·'YQf~ ~rop~rly I?acke~. in therct f ·

. es, s1r. Q. You say" End to end load .. Stripped 0. 1{." What do

you mean by "Stripped 0. K''. Do you mean the same stripping the- government inspector mentioned~

A. Yes, sir; the' boxes· were stripped to keep them. from getting eide7w-as in the car. -

Q. Yes; none of them set side-ways, did they f... · A. There is nothing here to indicate that they' did. Q. ''Load buckled in center and find boxes broken,'' and

so forth.· · _ · _ Q. ·Now, Mr. Hanson, did you make this report

page 191 } from your own personal inspection and knowl-edge of the facts down there ? · · ·

A. Yes,. ~ir,-I p1ake them all·that way,- or.,my .name wquld not be on them. That seal on the re-I probably inquired as to the se~l; they pr9bably said something about· pilferage, which they ·generally do, and kept a record. The seals had already been: b.roke:q, and I probably took their word for that. · , · ..

Q. And when you say the eontents of some of the boxes were stolen you know nothing about that, but put it on the report? i

·152 Supreme Court of Appeals of Virginia

. A. Yes, I could see that they had been pilfered through the dopr and the ~nd vents.

Q. Top end vents open and bottom closed. I understood you to say that the car at that time was not receiving stand ... ard ventilation-when you saw it 1

A. No. Q. Redwood brand. Various size packs. Boxes repacked

~how less thall one per cent decay. -Apples that show less tha.n one per cent decay, what kind of apples ar.e they? A~ Good apples. · Q, Are they not fancy apples-the very best quality of

p.pples¥ A, Sure. Yes. Any car of apples could show less than

one per cent decay, and not be fancy. Q, Was this fancy ~t11ff Y A. They say it was. I never graded it. Q. Turnb1g ripe, you say here, vVbat would be the effect

on a Newton pippin apple shipped in a ventilator car if the car does not receive standard ve11tilation Y Would ·

page 192 ~ it have a tendency to ripen~ A, Yes, sir.

Q. Can you tell this jury that the fact that this car did not receive standard ventilation, did not cause this fruit to ripen?

A. Well, that depends absolutely on how long it was not under standard ventilation, whether that caused the ripen .. ing of the food; or whether it was just the natural ripening proce,ss of the fruit itself. I don't know how long these vents or plugs had been closed, and the temperature while they were closed.

Q. I don't know how long they had been closed. We know they were closed the :first time we sa'v the car, and we know they were closed when you inspected the car two days afterwards. Would that period have a tendency to ripen-four days?

A. Fruit ripens from the time it starts to grow. Q. I am not asking you when it starts t6 ripen; I ask you

whether the car not being under standard ventilation for four days would have a tendency to ripen the apples?

A. Yes. Q. Now, Mr. Hanson, you say you found some decay in

the apples, did you ~ A. No, sir. Q. Sir~

A. l said less than one per cent deeay1


Q. Does the government report show any decay when they started Y

A. No, sir . . Q. Is it customary or usual, and according to the proper

method of loading cars, to. brace an end to end page 193 } car? ·

A. Not if the boxes are in tight to take up the space, there is no necessity for bracing.

Q. Bracing is used on refrigerator cars and cars not fully loaded; is that true?

A. Yes, sir. Q. Did;n't you tell Mr. Marks a moment ago that you

thought there was too much weight in the car? What did you mean by that? I didn't quite catch it.

A. His question was to the effect if braced by 1 x 6 inch pieces, that would be sufficient. I said no, due to the fact there was too much weight for 1 x 6 inch; there were eight hundred and some boxes, I believe, and half of that weight would be against that.

Q. If that bracing did not break it showed that it was sufficient, didn't it?

A. Yes, in this case. Q. It is usual and customary for apples to be shipped in

ventilator cars at that season of the year, is it not Y A. Yes. Q. There is nothing improper in shipping them in ventila

tor cars? A. No, sir.

RE-DIRECT EXAMINATION.

By Mr. ~{arks: Q. Is there any greater reason for shipping them under

refrigeration in November, than there is in October?

page 194 } 1\tir. Bethel: Does your Honor think that a proper question 1 I don't see how it can help us

solve this problem. The Court: I will admit it.

Q. In other words, if refrigeration is required in November, would there be greater or less reason for refrigeration in October?

A. There would be greater reason for refrigeration; the hotter the clPnate the more the commodity should be refrigerated.

l-54 Supreme ·Court of Appeals of· Virgini~

Q. Now, Mr. Hanson, I still do not see the difference that counsel tried to point out in these reports. You say twenty per cent yellowish color, balance green and yellowish green .. Does that indicate any difference, in your mind Y

A. There is no difference, other than that I give the per-··centage, and there is no difference on this. ·

Q. ''Turning ripe and firm; twenty per cent yellowish color, balance green.'' As I understand, you do not note any difference between the condition there, except you give the percentage of apples. that are turning, and he did not?

A. That's right. Q. Has an apple any inherent tendency to ripen and as-

sume a yellowish color after it has been pulled from the tree Y A. This variety, you mean 1 Q. Yes. A.. Well, yellow and greenish colo·r is the ch~racteristic

color of this certain variety of apple. · _ Q. If you go out into the orchard and pull one of them from

a tree and let it stand around say ten or fifteen page 195 ~ days, would there be any tendency in that apple

- during that period to ripen, from day to day? A. Yes, sir, it would ripen some; from the time the apple

js picked or even while it is . growing, it gradually ripens. Q. And the process of ripening would continue from day to

day, as long as the a·pple remained in existence, would it not~ A. Yes, sir. Q. Or until it was· put under cold storage temperature,

such low temperature as to prevent it from ripening? A. Well, they will ripen ·under storage also, but of course .

not as rapidly. Q. They will ripen in cold storage? A. Yes, sir. Q. The Southern R-ailway Company had nothing to do with

your inspection of this shipment of apples; did it 1 _ A. No, sir, it was not inspected for the Southern Railway in 1923.

Q. It was inspected for Burton & B'riel, ·at their request? A. Yes. Q. As a matter of fact you were not inspecting any ap

ples for the Southern Railway at that time, were you~ A. Not -any commodity for the Southern. Q. Are you interested in the Southern Railway Company

in any way? A. No, sir. Q. The Morehead Inspection Bureau, as I under.st~nd it,

is a fruit inspection bureau which inspects for all parties-

Southe.rn Railway. Co. v. Burton & Briel, Inc. 155

· any one 'vho wants a shipiD:ent insp.ected and page 196 } will pay for the inspection, is that rightf

A. Yes, sir. Q. Will you let me see that other report which you have

there? (Witness here hands a paper to .examining counsel.) It appears that on April11, 1924, 249 boxes of these apples which had been in storage since the fall of 1923 were withdrawn from storage and loaded in C. & 0. car 81405. Did you make an inspection of the shipment in that C.·& 0. car 81405?

A. Yes, sir.

Mr. Bethel: We object to that and do not think it has ~nything to do with this case. .

The Court: What is the objection? Mr. Bethel: We consider it irrelevant. The Court: Objection overruled. Mr. Bethel:· Exception.

Q. For whom did you make the inspection of that car? A. For the C. & 0. Railroad. Q. Is this your file copy of that report? A. Yes, sir. ·Q. Please state the date you made that inspection? A. April 11, 19~4. · Q. What does the inspection show as to the condition of

the apples 1

The Court : He can state from his own knowledge after refreshing his memory, but I will not admit that report in evidence. · ·

page ·197} Q. Just refer to the report and refresh your memory, and state what the condition of these ap

ples was at that time in April, 1924, when they were withdrawn from storage.

Mr. Bethel: I object to the question because counsel is assuming that the witness can refresh his ~emoq.

The Court: Objection overruled. Mr. 1\{arks: Just refer·to the report and refresh your mem

ory, and state if you can what was the condition of those apples at that time?

A. The condition of the apples was all right when they


came out of storage, just as any other apples would come out in the spring, showing an occasional slight scald or spot rot.

Q. That was the condition you found them in-good condition-when you inspected them in April, 1924 Y

A. Yes. ·

RE-CROSS EXAMINATION.

By Mr. Bethel: Q. Let me see that report, please, sir. (The paper is here

handed to counsel.) You did not read all this report to the jury, did you Y

The Court : The report 'vas not read to the jury; the witness was only allowed to look at it to refresh his memory.

f page 198 ~ Q. Now, I will ask you to look at this report and refresh your memory and see if those apples

were not scalled when you inspected them 1 A. Yes, sir, I believe I stated that. Q. What causes a scall of an apple T A. The gasses evaporating from the apple cause scald. Q. If an apple gets too hot in a car which is not receiving

proper ventilation, it will scald "ron 't it, after put in refrigeration¥

A. Yes, it has a tendency to scald.

2nd RE-DIRECT EXA~IINATION.

By Mr. ~larks : Q. ''Color fair to good, showing an occasional slight scald

and spot rot." I wish you would explain that to the jury, what you mean there by'' an occasional slight scald and spot rot" .

.A. Well, at the present time there is nobody can really: control scald. It can be retarded but not controlled. Cold storage naturally retards scald, and the latest information received is that the gasses coming out of the apple cause it to scald. That is not a scalding of the apple but merely just a discoloration of the skin, a general turning from a brown to a dark brown. There are hvo kinds of scald, one a soft scald which will affect the. edible properties .of the apple slightly, and the common scald which as in this case merely turned the epidermis of the fruit either to a slight tan brown or possibly a heavy brown color. Scalled apples may go into

Southern Railway Co. v. Burton &. Briel, Inc. 157

storage in the fall in perfect condition and come page 199} out in the .spring showing a condition of slight

scald. vVe do not find scald on apples on the blush side of the fruit, due to the fact that the blush side on highly colored fruit colors up and the scald evaporates on the pale side. Apples that are under refrigeration while in transit, or under ventilation, and put in storage, often come out in the spring in a scalded condition. A proper and even temperature while in .storage is one of the greatest factors in reducing scald; and also in the last few years there

. have been used oil wrappings and waxed wrappers to wrap the individual apples in, which has been found to be a great factor in reducing scald. The spot rot on apples is either a blue mould or brown decay following a stem puncture or possibly a cut· or sting or whatever the case may be; in ·other words, allowing this disease to enter the apple once the skin is punctured.

Q. What condition would you say these apples were in · when they 'vere withdrawn from storage in April, 1924, con

sidering the fact that they w·ere pulled in California, shipped to Richmond, and placed in cold storage in October, and remained there until April of the following year?

A. Well, the life of a Newton ptppin apple is from October to May; that is, a California green Newton pippin. Other pippin varieties, such as the Albemarle pippin grown in Virginia, have a much longer keeping quality, a firmer apple, than the apple grown in CaliforniR;, or the apple grown in New York.

Q. Now, I don't think you quite understood my question. What would you say was the condition of these

page 200 ~ apples in April, 1924, which you inspected, taking into consideration the fact that they had been

pulled in California and shipped to Richmond and placed in storage in October, and remained in storage until April following?

A. They "rere in the average condition of any commodity that comes out of storage in the spring.

By a Juror: Q. Would a scald apple have any effect on the export ship-

ment, at allY . A. Yes, it would have an effect on any market; it detracts

from the appearance of the fruit, and in time of course scald will gradually break it down.

Q. Are apples inspected before they are loaded for export 7 A. Inspected here at Richmond, do you mean?

158 Supreme· .Court of Appeals of Virginia

Q. No, where they are shipped 1 A. Yes, I think so, in most cases, they will either have a

government inspector or be inspected by the steamship company, or by the party shipping them, so as to keep a record of the condition of the fruit, so that in case of a claim or some misunderstanding at the other end they will be able to pro-

. teet themselves. Q. If they were too had to be shipped for export then,

they would .be turned back, would they? · · A. I don't know whether the steamship company could re

fuse them; that is beyond my power to say. page 201 ~ Possibly, if there was something radically wrong

with the fruit they could refuse t,hem; I don't know just what the ruling is in foreign countries. There are lots of States that you are not allowed to ·ship fruit when infected with certain disease, and possibly that is true as to · export.

Q. They would have to be in good condition to ship? A. Well, yes, apples for export should be in good condi- ·

tion, especially after taken out of storage and being handled again, they should be in the best of condition and be handled as little as possible, and be placed under refrigeration again ·as soon as possible. In other words, it is very poor policy -to withdraw apples from storage and place under ventilation, because that sudden Ghange is a great factor in bringing out scald. ·

Q. Would this apple that you speak of, after it was brought from cold storage, _be classed as a fancy article 1 ·

A. Yes, you can not throw it out of grade unless the percentage of scald or decay is such. If the percentage of scald does not exceed ten per cent, or where the decay does not exceed two per cent., the fruit could not be thrown out of grade; it would still be in grade.

By ]\.fr. lVIarks: Q. All these apples were in that grade ? A. Well, they must have been. I really did not grade the

fruit; I do it sometimes, but in ·my special report there is n·othing to indicate that the fruit· could be thrown out of grade.

·page 202 ~ 2ND RE-CROSS EXAMINATION.

By Mr. Bethel: Q. You speak of these apples having spot rot. Could

bruises cause spot rot~

· Southern Railway Co. v. Burton & Briel, Inc. 159

A. Yes, sir. Q. So that when you mentioned bee stings· and stem punct-

ures you did not name all the things that cause spot rot f . A. "\Veil, bruises are generally followed by blue mould, al

though as I just stated spot rot will follow bruises. Q. Was the scald in this apple the kind of scald which

would very likely follow the shipment of this- apple in a ventilator car, where the car had not been under standard ventilation f

A. Not necessarily, no, sir. Q. r did not ask you that. I asked you if this scald was

the character of scald that could follow the shipment of aRples in a ventilator car which had not been prop.~rly ventl~-atedf ·

A. Yes, it could follow. Q. And the spot ·rot could have been caused by the rough

handling of the car, could it not f A. It could, yes, sir.

By Mr. Marks: Q. But your inspection of the shipment when it went into

storage showed there were no bruises, as. to the 821 cases, as I understand itY

Mr. Bethel: Don't ans,,rer that question. I vouch the record. That inspection report does not show that. ·

The Court : The question is very leading.

page 203 } By Mr. Marks: Q. Mr. Hanson, were there any bruises which

your first inspection detected, which caused this spot rot such as your second inspection showed f

A. No, sir. I did not note on my· inspection report any bruises. No doubt there was some bruised fruit in the containers.


1\'Ir. Marks: If your Honor please, I now want to introduce in evidence a. certified copy of the last report to the State Corporation Commission, filed by the Bert E. Lee Co.,. Incorporated, which is the company I asked Mr. Lee about yesterday, and he denied having any connection with it. Mr. Bert E. Lee is here named as President of that company, and Mr. W. E. Burton as Secretary & Treasurer. He denied that he had any connection with any company down there.


Mr. Bethel: I have no objection to it. The Court: All right, you may file it.

Note: The paper in question is here introduced as Defendant's Exhibit No. 3.

page 204 ~ DEF. EXHIBIT 3.

Report to State 'Co·rporation Co1nmissi.on.

To be made upon organization by every .domestic corporation and upon ente1ing Virginia by every foreign corporation and annually thereafter by all corporatioRS within thirty days after the time appointed for holding the annual meeting of stockholders.

Made pursuant to Section 3820 of the Code of Virginia, 1919, as amended.

N arne of Corporation Bert Lee Co. Inc. Location of Principal Office in Virginia Richmond, Va. County or City with street and number if any there be. *N arne and Postoffice address of agent upon whom pro-

cess against the corporation may be served. Character of business transacted Wholesale Fruit & Pro

duce. Common Preferred

xMaximum capital stock authorized by charter $25,000.00

xAmount of stock actually issued $10,000.00 xAmount of stock actually outstanding For non par value

stock show above information in shares.

xDate of last annual meeting of stockholders June 30, 1925. Date of last election of directors· June 30, 1925.

Name Bert L<'e W. V. Burton W. E. Burton

Nmne Bert J,,~c M. V. Burton W.E. Burton

OFFICERS.

Title. Adclre:~s

Prcsit!ent Hichmoncl Va. v. " " Sec'y. & Treas "

DIRECTORS.

Address Richmond Va

" "

Date Term of Office Expires 1 year 1 I(

1 I(

Date Term of Office Expires 1 y~ar 1 " 1 "


Date appointed for holding the next annual meeting of stockholders June 30, 1926;

W. E. BURTON, Secretar¥.

M. V. BURTON, V. President.

page 205 ~ *The name and postoffice address of statutory agent is to be given by a dornestic corporation

only when all officers and directors are nonresidents of the county <>r city in "rhich its principal offic~ in Virginia is located, and the agent named must be appointed by written power of a tton1e¥ as provided in Sec. 3854 of the Code of Virginia, and in all cases by fm~eign co1·porations auth.orized to do business in Virginia, foreign corporations are required by law to designate the Secretary of the Common.:. wealth their statutory agent and in addition should show the name of the agent in charge of their business in Virginia.

xThis forin for u~e by all corporations, and those without ¢a pi tal sto~k should insert the word ''None'' opposite each ·Hem, which refers to stock, and change the word "Stockholders'' to "~!embers";

(Fiied as of Juiy 16, 1925.)

page 2o6 ~ COM~iONWEALTH OF VIRGINiA

(Seal) Departmei1t of the

STATE OORPdRATION COMMISSION.

I, R. T. Wilson, Clerk. of the State Corporation Commission, do he.reby certify that the foregoing is a true copy of r~port to the State Corporat.ion, py.rsuant.to the provisions bf Sectioil.382Q,_ Oode of _Vh:ginia, 1919, made by BERl' LEE COMPANY, INCORPO;RATED,. cov:ering the annual meet~ ing of stockholders held June 30, 1925.

I FUR'l'HER QERTIFY, that the. original of saici _report )vas filed in this office on the sixtee11th day of July, 1925, and is preserved as a permanent record in this office.

_ IN TESTJ~ONY·WHEREOF, !.hereunto set my hand at Richmond, this 2nd day of July, A; D., 1926.

. . R. T. WILSON, Clerk of the Commission.

"162 Supreme Court of Appeals of Virginia

page 207 ~ EDWARDS, recalled as a witness on behalf of the defendant,

further testified as follows:

. DIRECT EXAMINATION .

. :ay Mr. Marks : Q. It appears from this freight bill, plaintiff's exhibit B,

that the freight on this shipment from California to Richmond was $634.42. Does that include the part which the Southern R·ailway received for its movement from Memphis to Richmond~

A. Yes, sir. Q. How much was that~ A. $183.98. Q. That is under the column headed freight. Now the dif-

ference $450.44-what does that mean' A. The charges up to Memphis. Q. For the haul on the other railroads? A. Yes, sir.

CROSS EXAMINATION.

By Mr. Bethel: Q. What is the distance from Memphis to ·Richmond? A. 932.8 miles.

RE-DIRECT EXAMINATION.

By Mr. Marks: Q. How many terminals were there between Memphis and

Richmond! A. Five.

page 208 ~ Q. What were they? A. Danville, Salisbury, Asheville, Knoxville,

Chattanooga, Selma and Memphis~ Q. And this car in coming through from Memphis to Rich

mond had 'to pass through those five terminals to get here Y A. Yes.


The Plaintiff here Rests.

page 209 ~ . W. E. BURTON, recalled on behalf of the plaintiff, 1n rebuttal,

further testified as follows :


DIRECT EXAMINATION.

By Mr. Bethel: · Q. 1\IIr. Burton, Mr. Lee testified on yesterday that he had

no connection with this corporation. Are you an· officer in that corporation~

A. I am not. . Q. Has he any connection with it~

Mr. Marks: I call for the production of the stock books and the minute books of that corporation, if they want to deny that official report :filed with the State Corporation Commission. ·

The Court: Objection overruled. Mr. Marks: E~ception.

A. No, sir, he has not. Q. How long has it been since he was disconnected? A. I would say approximately six months; I don't kriow

the exact date. Q. This report that you made· to the Corporation Commis

sion-look at it and see the date. Was it not on page 210 ~ June 30th, 19·25 1

A. Yes, sir, June 3Qth, 1925. Q. That is more than a year ago? A. Yes, sir.

CROSS EXAMINATION.

By Mr. Marks: Q. This corporation has a minute book, has it not Y A. I would think so. Q. It has a stock book, has it not? A. I would think so.

Mr. Marks: I call for the production of those books, if your Honor please.

Mr. Bethel: Let him get the records in the proper manner, by a subpoena duces tecum!

The Court: The records Mr. Marks has called for do not appear to be in the possession of the plaintiff in this case, and the motion as made is overruled. · ·

. Mr. Marks: When a witness comes on the stand and is testifying here as. an officer of a corporation and a .stockholder,

.and says in view of that connection with the corporation he . '/. knows what interest people have in it, we certainly have the

i 64 Supreme Court of Appeais of Virgiiiia

right, I submit, to call upon him to produce the best evidence, which is the records themselves. I am not calling on the other, who is not appearin in court here, to do that.

The Court : The motion is overruled. page _211 }- Mr. Marks: Exception.

The Court: If the motion had· been made at the time, the Court would have excluded that certificate from the State Corporation Commission, but as counsel did not" object I let it come in, and having let it in I allowed this witness to answer.

Q. Mr. Burton, is it not a fact that wheri a carload of apples is sold, the purchaser pays a certain price plus the freight, and that the freight in this case was paid by whoever you sold these apples toY

A. No, sir; we sell the apples, generally speaking, deliv~ ered in Richmond.

Q .. Was not the freight iri this case paid by the party to ivhom you claim you sold these apples?

.A. No, sir.

(Witness . here stood aside.)

End of Testimony:

Southern Railway Oo. v. Burton & 13riel, Int3. 165

page 211~} EXltlBI't NO. -8

5-24-24 100 M D 11704 Forin 850

Uniform Domestic Straight Bill of Lading Adopted by Carriers in Official, Southern and Western Classification Territories, March 15, 1922.

TRUE COPY OF BILL OF LADING.

This Shipping Order must be"leJti_bly filled in, in Ink, in Indelible Penr.il, or in Carbon and retained by the Agent._ Shipper's No ........................ . Agent's No.·-······-··················

RICHMOND, FREDERICKSBURG AND POTOMAC RAILROAD COMPANY

Receive~ subject to the classifications and tariffs in effect on the date of the issue of this Shipping Order, at ........ Richmond, Va., ............................................................................................................ April1, 1924 ................................................................................. 192 ....... .

from ............................................................................................................................................................................................................................................................. ..

the_property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown), marked, consigned, and nestined as indicated below, which said company (the word company beinfl; understood throughout this contract as meaninfl: any person or corporation in pcssession of the property under the contract) agrees to carry to its usual place of delivery at- said destination, if ort its own road or its 0\Vn water line, otherwise to deliver to another carrier on the route to said destination. It is mutually agreed, as to each carrier ot all or any of said property over all or any portion of said route to destination and as to ea<'h partv at any time interested in all or any of said property, that every servie to be performed hereunder shall be subject to all the conditions not prohibited" by law, whether printed or written, herein contained, includinp: the conditions on back hereof, which are hereby n~eed to by the shipper and accepted for himself and his assigns.

(8. L. & c_., R. F. & P. R. R. Co. and connections n~t responsible for number or condition of packages.)

(M~l- ~r street. addr~ss of consignee-For purposes of nottfication only.)

(This bilJ 0f lo.dine: is issued in exchange for bill of lading issued at Uichmond, Vn., on the 31 day of Mch 1924 by the C & 0) ·

Consigned to ........ Alfred ,~.r. Otis, ............................................................................................ :··--·············--·····--···--···· .. ····--------................................................................ .. Destination ........ New York, NY .......................................................................... State of .................................................................... County of ...................................... ..

Route ........ Penn. For Export .................................................................................. ,.~ ........................................................................................... WB 25007 ..................... :

.................................................................................................................................................... Car Initiai. ....... FGE .................................... Car No ......... 41083 ............ .. (Delivering carrier)

No. Description of Articles, Special Marks and Exception~

Packa~es (Rubject t.o Correction)

*Weight Class or

Rnte

If this shipment. is to be Check delivered to the r. o n s i g n e e

without recourse on the clon~ Column si~nor, thP- consignor shall sign

the following statement: ----I The carrier shn ll not make

........ 954 .......... Bxs Apples ........................................................................................... .47223 ..................................... , ................ delivery of this shipment withrmt payment of frPight and

....................................................................................................................................................................................................... all othP.r ln.,vfnl charges. (See . . . . . _ · aection 7 of condition~.)

....................... .Inthal1c1ng hy Rlupper ..................................................................................................................................... .

........................ do not re-ice .................................................................................................................. ---····-············1···-·········--···-- (Si5nature of consitznor)

....................... .lic;hteragc free f<'r exp~rt ............... ~ ............................. .. : . .................................................................................. !=::::;:::::::======== Tf·!'hai''!es are to hP prepaid,

................................................................................................................................. _ ....................................................... c .............. write or stamp here, "1'o be I • Prepaid." ):..:".'-::.--------··:_----· .... V1o. S. A .• L. Ded $3.60 ...................................................................................................................................... ..

! ........................ 44% Manhattan Piers, N. J ............................................................................................................................................................................. ···········

........................ Via Balto. Mnntnn .............................................................................................................................................. Received $ ...................................... .. . to apply in prepayment of

........................ $9.50 Eqtupment ................................................................................................................................................. the nharges on the property

........................ Charge ..................................................................................................................................................................... described· hereon. ·

........................ 210.14 ................................................................................. : .................................................................................... .......................... A.g~-r~"i-~~--c~;;;i~~---·

.......................................... _ .......................................................................................................................................... , .................... Per .................................................... .

*If the shipment moveR betwl'en two pnrtR by a carrier hv wat-er, t.he ln.w requires thnt the bill of Jading shall st.a.te whether it is "carrier's or Rhipper's wei~ht." · ·

NoTE.-Where the rnte is dependent on value, shippers are required to stntc specifically in writing the agreed or declared valun of the property.

The agreed or declared value of the property is hereby specifiP.ally stated by the shipper to be not exceeding

................................................................................................ per ... ----················· .. ······ .. ········· .. ······ .. ····· .............................. ..

(The si~?;nature here acknowledges only the amount prepaid.)

Charges Advanced:

$ ................ ············ ........................ ..

........ Richmond Cold Storage .................................................................. Shipper SF Agent must detach and retain this Shipping Order and must

Per ........ For Burton & BrieL. .................. ~.................................................. si~n the Original Bill of I,ading.

Permanent post-office address of shipper ......... _ ................... _ .................................................................................................................................................................... .

166. Supreme Court of Appeals of Virginia

CONTRACT TERMS AND CONDITIONS Sec. 1· (a) The carrier or party in possession of an1 of the property herein described shall be liable as at common law for any loss thereof or damage thereto, except as herein-

after provaded. . (b) No carrier or party in POSSP.ssion of all or any of the property herein described shall be liable for any loss thereof or damage thereto or delay caused by the act of God, the

public enemy, the authority of law, or the act or default of the shipper or owner or for natural shrinkage. The carrier's liability shall be that of warehouseman, only, for loss, damage, or delay caused by fire occurring after the expiration of tlie free time atiowed by tariffs lawfully on file (such free time to be computed as therein provided) ~fter notice of the arrival of the property at destination or at the port of export (if intended for export) has been duly sent or given, and after placement of the property for delivery at destination or tender of delivery of the propert.y to the party entitled to receive it, has been made. Except in cMe of negligence of the carrier or party in possessidn (and the burden to prove freedom from such negligence shall be on the carrier or party- in possr,asion), the carrier or party in possession shall not be liable for loss. rlamage, or delay occurring while the property is stopped and held in ~ransit up!>n the request of the shtpper, owner, or party entitled to make such request, or resuJt.ing from a defect or vice in ~e property, or for count.ry damage to cotton, or from nots or stnkes.

(c) In case of quarantine the property may be discharged at risk and expense of owners into quarantine depot or elsewhere, as required by quarantine regulat.ion.CJ or authorities, or for the carrier's dispatch at nearest a'•ailable point in carrier's judgment, and in any such case carrier's responsibility shall cease when property is 80 discharged, or property may be returned by carrier at owner's expense to shipping point, earning freight both wqs. Quarantine expenses of wtiatever nature or kind upon or in respect to property sliall be borne by the owners of the property or he a lien thereon. The r.arrier shall not be liaJ)lo for loss or damage occasioned by fumigation or disinfection or other arts required or done by quarantine regulations or authorities even though the same may have been done by carrier's offir.ers, agents, or omploy(les, nor for detention, loss, or damage of any kmd occasioned by quarantine or the enforcement thereof. No carrier shall be liable, except in case of negligen<'e, for any mistake or inaccuracy in any information furnished by the carrier, its agents, or officers, as to quarantine laws or regUlations. The shipper shall hold the carriers harmless from any expense ther may incur, or damages they may be required to pay, by reason of the introduction of the property eovcrf'<l by this contract into any place against the quarantine IRws or rcgulat.ions m effect at such place. ·

Sec. 2. (a) No carrier is bound to transport said property by any particular train or vessel, or in time for any particular market or otherwise than with reasonable dispatch. Every carrier shall have the right in case of phvsical necessity to forward said property b~ any carrier or route between the point of shipment and the point of destination. In all cases not prohibited by law, where a lower va1ue than actual value has been reprP.sented in writin11: by thn shippor or has been aqreed upon in writing as the relcll8Cd value of the property as determined by the classification or tariffs upon which the rate is based, such lower vnlue plus freight charges if paid shall be the maximum amount to be recovered, whether or not such loss or damage occurs from negligence .

. (b) Claims for IN~S, damage, or injury to property must be made in writing to the originating or delivering carrier or carriers issuing this bill of lading within six months after delivery of the property (or, in ca.'30 of exJ)ort traffie, within nine months after delivery nt/ort of export.} or, in case of failure to make delivery, then within six months (or nine months in case of export traffic) Rftcr a rea.qonable time for delivnry has rlaosed; provide that if s\tch lo.'l!l, damagn, or injury Wl\8 due to delay or damage while being loaded or unloaded, or damaged in transit by ~arele.<;sness or negligence, then no notice of"daim nor filing of claim shall be re:)Uircd as a condition precedent to recovery. Suits for loss, damage, injury, or delay shall be instituted only within two ~ears and one day after delivery- of the prop.-rty, or in cMe of ra:lure to ma~<:e delivery, then within two years and one day after a reasonable time for delivery has elapst.>d: Pro\idt.>i:l, That in CMe the claim on which suit is based was ma:lc in writing within six months or nine months in case of export traffic (whether or not filing of such claim is required as a condition preePdent to recovery), suit. shall be instituter! not later than two years and one day after notice in writing is given by the carrier to the claimant that the carrier has dis'lllowecl th(' claim Jr any part or psrts thereof specified in thP. notice.

(c) Any- carrier or party liable on account of loss of or dam:lv;e to any of s!lid property shall have the full benefit of any insurance that may have been effected upon or on account of s:ud property, 80 far as this shall not a\•oid th~ policies or co'ltracts of insurance: Provided, That the carrier reimburse the claimant for the premium paid thereon.

Sec. 3. Except where such service is required as the r!'.sult of carrier's negligence, all property shall be subject to necessary cooperage and baling at owner's cost. Each carrier over whosP. route cotton or cotton lintP.rs is to be transportc:l hereunder shall ha\·c the privilege, at its own cost a'ld risk of c:>mprassing the sams for greater convenience in handlinB or f<!rward!ng, and shall not be held responsible for deviation or unavoidable delays in pro•.mring such compr('SSion. Grain in bulk consigned to a p<>int where there is a railroad, public or bc~nsed elevator, may (unl~ otherwise exprcssl}· noted herein, and then if it is not prom.,tly un.Joaded) ~e there delivered !ind place~ with other grain of tlte.same ~d and grade wtthout respect to ownership (and prompt notice thereof sh:dl be given to the constgnor), and tf so delivered shall be subJect to a ben for elevator charges m addition to all other charges hereunder.

Sec. 4. (a) Property not r('moved by the party entitled to rt.>Ccivc it within the fre(' time atlowed by tariffs, lawfully on file (such free time to be computed as therein provided) after notice of the arrival of the property at d!'.stination or at the port of export (if intended for export) has be~n duly s:mt or give'l, and after placem:mt of the property for dP.lh·ery at destination has been made, may be kept in Vess!!J, car, depot, warehouse or pla!!e of delivery of the curier, subject to the tariff charge for storage and to carrier's responsibility as warehouseman, only, or at the option of the carrier, may be removerl to and stored in a public or licensed warehouse at the place of delivery or other available place, at the cost of the owner, and there heM without liability on the part of the c:lrrico:-, and subject to a lien for all freight and other lawful charges, including a reas:>nable charge for storage.

(b) Where nonperishable property which has been transported to destination hereundar !s refused by consignee or the party entitled to rereive it, or s11id consig'lee or party entitled to receive it fails to receive it within 15 days after notice of arrival shall have heen duly s3nt or give'l, the carrier m!ly sell the samt.> at public auction to the highest bidder, at such place as may be designated by the carrinr: PrO\ided, That the carrier shall have first m'lilerl, sent, or given to the consignor notice that the property has been refused or remains unclaiJI!ed1 as the ease may be, and that it will be subject to sale under the terms of tho bill of laiing if disposition he not arranged for, and sh:lll have published notice containing a descnpt1on of the property, the name of the party to whom consigned or, if shippa:l order notify, the name of the party to bt.> notified, and the time and pl'lce of s:1le, once a week for two surl'.essive weeks, in a newspaper of general circulation at tho p\af'P. of sale or nearest place whore such newspaper is published: Provided, That. 30 days shall ba\'e elapsed before publication of notice of sale after said notice that the property was refused or remains unclaimed·WllB mll.ile:l, S3nt, or given.

(cJ. Where perishable property which has been transported hereundnr to destinatjon is refused by consi~;nee or Darty entitlert to receive it, or said consignee or party entitled to rcr.etve it shall fail to receive it promptly, the carrier mav, in its dis::rP.tion, to prevent deterioration or further deterioration, sell the same to the best advantage at private or public~~: PFovided, That. if time serves for notification to the cons"gnor or owner of the r3f1.1sal of the pro-;>erty or the failure to receive it and request for disposition of the property, such not.Jftcatton shall be tm•en, in such manner as tho exercisP. of due diligenrn requires, before t.hc propertv is sold.

(d) Where the procedure provided for in the two paragraphs last pr:leeding is not possibh it is agreed' that nothing contained in said paragraphs shall be construed to abridge the rtght of the carrier at its option to sell the property under such circumstaner.q and in such manner a.'! m'ly be auth'lrize:l by law. ·

(e) The proceeds of any sale made under this seCtion shall be applied bv the carrier to tne pnvmcnt of fre'ctht, demurrage, st'lrage, and any other lawful chargcs and the expense of nottee, advertisement, sale, and other necessary expense and of caring for and maintaining the property, if proper c'\re of the s.l'll~ re:tuires special expense, and should there be a balance it shall be paid to the owner of the property sold hC!reunder.

UJ Property destined to or taken from a station, wharf, or landing at which there is no regularly appointed frnight a~ent shall he entirely at risk of owner after unloaded from cars or vessel.s or until loaded into cars or vessels, and except in case o! carrier's negl:gence whe"l received from or delivered to sach stations, whar\·rs, or landings shall be at owner's risk until the cars are attached to nod after they are detached from locomotive or train f"r until loaded into and after unloa1e:l from vessel.s.

Sec. 5. No carrier hereunder will carry or be liable in any way for any documents. s?erie, or for a•w articles of extra'>dinary value not spa:!ifically rated in the published classifications or tariffs unless a special agreement to do so nnd a stipulnied value of the articles nre indoraad hereon.

See. 6. Every party, whether principal or agent, shipping explosives or dang~rous goois, without previo·ts full writt.en rlis:-bs>Jre to the c:urier of their natur~. shall be liable for and indemnify the carrier against nil loss or damage caused bv such c:oods, nnd such goods mav he warahoused at owner•s·r:s•c and expense or destroyed without compensation.

Sec. 7; Tho owner or consignee shaH pav t.ho freight. and M·eragc, if nny, and all other lawful charg('R ac('ruing on said property: but, except in thos::l instances where it may lawfully be authorized to do 80, no carrier by railroad shaH deliver or relinquish possession at destination of the property coverci by this bill of Ia iing until all tariff rates and charges thereon have been paid. The consignor shall be liable for the frr.ight ana all other lawful char!tcs. except that if the consig'lor stipulates. b,v signnturc, in the space provided for that purpose on the face of this bill of lading that the carrier slt:tll not malce rl~livery without re1uiri'lg p:~.vm:mt. of s>Jch charges a'ld the carrmr, contrary to such stipulation, shall make deli\•ery without requiring such payment, the ron.<Jignor shall not be lial>le for such llhar~es. Nothing her3in s'1all limit the right of the carrier to require at time of shipment tho prepayment or guarantee of t.hc charges. If upon inspection it is ascertnincd that the articles shipped· are not those dcs::ribed in this bHl of lading, tho freight charges must be paid upon the artil'lcs actually shipped.

Sec. 8. If this bill of lading is issued on thn order of the shipper. or his aqent, in exchan~e or in substitution for a"lother bill of !!din~. t.he shipper's signature to ~he prior bill of lading AS t.o the statement of value or other\\;se, or election of common la·.v or bill of la:ling liability, in or in connection with uch prior b.ll of Ja:ling, s3all be constdere:l a part of thi.q bill of latiing as fully ns if the s~me were \\'Titten or made in or in llo'lnection with thiR bill of Jading.

Snc. 9. (a) If all or any part of said property is carried by water over nnv part of ni:J route, steh water c'\rring~ slt:1ll be T>Elrform~i subject t.o nll the terms and provisions of -npd .?n the cxemp•ions from Hg!,jJ"*:!" ont ·. I ir, tktt \sci u{.bltc Co u;:cas of the Uaieod: 8t•nbes, ap.>JoTed uu Fcbzuat.Y 1a, 188), aud caci;Nd ••Ju: o clabi;;g to t>l:e uau·xatiott of vessels, etc.," and of other statut<-8 of the United States according carriers by water the protection of limited liability, and to the r.o:1:litions cantaineJ in this bill of lading not inconsistent therewith or with this section.

(b) No such cnrrier by wat<>r shall be liable for any loss or dam~gc resulting from any fire happening to or on boar:J the vess:!l, or from explosion, bursting of boilers or breakage ofshatts, unless caused by the design or negler.t of such carrier.

(c) 1£ the owner shall have exercised due diligence in making the VOB.'Ie! in all resooct.s seaworthy and properly manned, equipped, and supplied, no such carrier shall be liable ior any loss or d:unage resulting from the perils of the lakes, s:Jas, or other watf1rs, or from Intent de~9cta in hull, machinery, or appurtenances whether existing prior to, at the time of, or after sailing, or from collision, stranding. or other accidents of navigation, or from prolom;ation of t.ho voyage. And, when for any reason it is necessary, any vessel carrying any or all of the property herein described shall be at liberty to call at anr port. or ports, in or out of the CU.'!tomary route, to tow and be towed, to transfer, trans-ship, or lighter, to load ~d discharge goods at. any time, to assist vessels in distress, to dn\•Jat.c for the purpose of swing life or property, and for docking an:l repairs. Except in cus2 of negligence such carrier shall not be responsible for any Joss or damage to property if it be nl'Cl"ssqry or is usual to carry the same upon deck.

(d) General average shall be payable according to York-Ant.werp Rules, 1890 and, as to any matter not therein provided for, aoeording to the law and usage of the port C?f New York. If the owners shall have exercised due diligenr.e to make the ves..<Jel in all ~espeqts seaworthy and properly mnnned, e1uippcd, and sapplied, i.t is hereby agreed that~ m onse of danger, damage, or disn.ster resulting from faults or errors in navip;nt.ion, or in the management of the vessel, or from any atent or other i:lefect.s m the vessel, her machme~y or appurtenances, or from unseaworthineM, whether existing at tho time of shipment or at the beginning of the voyage (provided the Intent. or ot.her defects or th"e unseaworthtnos.'l was not discoverable by tho exercise of due diligence), the shippers, consignees and/or owners of·the cargo shnll nevcrthci('SS pny salvage and nny special charges incurred in respect. of the cargo, and shnll. contributE! with the ship owner in general average to the payment of any sacrifices, losses or expenses of a general average nature that. may he made or incurred for the common henef1t. or to reheve the a:lventure from any common peril.

(e) If the property is being carried under a tariff which provides that any carrier or carriers party thereto shall bn liable for loss from pprils of the sea, then as to such carrier or carriers the provisions of thiR section shall be modified in accordance with the tariff provisions, which shall bo regarded as incorporated into the conditions of this bill of lading.

(f) The term "water narriage" in this section shnll not. be construed as including lighterage in or across ri\·era, harbors, or lakes, when performed by or on behalf of rail carriers. Sec. 10. Any altPration, adrlition, or ernsure in this bill of lading which shall be made without. the special notation hereon of the agent of the carrier issuing this bill of lading,

shall be without effect, and this bill of lading shall be enforceable according to its original tenor. ·


page 212 ~ And the court certifies that the foregoing evi. deuce is all of the evidence introduced at the trial

of this case. And after the introduction of said .evidence, and after the·

court had instructed the jury as set forth in defendant's Bill of Exceptions No. 2, to which reference is hereby made, and the same is made a part her.eof as fully as if it were copied herein in full, and after argument of counsel, the jury retired and after considering of their verdict returned to the court their verdict in the following words and figures :

"We, the jury, on the issu~ joined find for the plaintiff and assess his damages at $400.00.

P. H. GAY, Foreman, July 2, 1926. ''

And thereupon .the defendant by its attorney moved the court to set aside the said verdict as contrary to the law and the evidence and because the damages assessed were excessive and because the court erred in giving the instructions re- ~ quested by the plaintiff, and in refusing to give instructions requested by the defendant and in modifying instructions :r:equested by the defendant as set forth in defe~dant 's Bill of Exceptions No. 2, to which reference is hereby made.

Which motion the court overruled and entered final judgment for the plaintiff on said verdict, to which ruling of the court the defendant by its attorney then and there excepted and no'v tenders this its Bill of Exceptions No. 1, which it prays may be signed, sealed and made a part of the record in this case, which is accordingly done on this the 9th day of

August, 1926, within the time prescribed by law. page 213 ~ And it is further certified that it appears in

writing that counsel of record for the plaintiff has had reasonable notice of the time and place at which this Bill of Exceptions was tendered to the court.

FRANK T. SUTTON, Jr., (Seal) Judge, sitting at the request of the Hon. Beverly T. Crump.

page 214 ~ Virginia, In the Law and Equity Court of the City of

Richm·ond.


Burton & Briel, Incorporated, Plaintiff, v.

Southern Railway Company, Defendant.

DEFENDANT'S BILL OF EXCEPTIONS NO.2.

Be it remembered that upon the trial of this case and after the jury had been sworn to try the issue joined therein, and after the evidence had been introduced before the jury as set forth in defendant's Bill of Exceptions No. 1, to which reference is hereby made, and the same is made a part hereof as fully as it if were copied herein in full, the plaintiff moved the court to give the following instructions designated Instruction No. 2 to Instruction No. 6, both inclusive, Instruction No. 8 and Instruction No. 9.

INSTRUCTION NO. 2.

The court instructs the jury that if you believe from the evidence in this case that five boxes of apples in question

• were stolen while on the lines of the defendant, or on its Virginia Street tracks, the plaintiff is entitled to recover tl;lerefor as a matter of law.

INSTRUCTION NO. 3.

The court instructs the jury that if you believe from the evidence in this case that the crates of apples in the car in question were properly packed, loaded and placed therein, and that they buckled while in transit and apples bruised as a result thereof, the plaintiff is entitled to recover for ·any damage resulting therefrom.

page 215 ~ INSTRUCTION NO. 4.

The court instructs the jury that if you believe from the evidence in this case that the apples in question were properly loaded and packed and placed in the car ·and delivered to the initial carrier in sound condition and were in turn delivered by the defendant to the plaintiff in a damaged condi- · tion, then the burden is upon the defendant to show that the damage did not accrue to the apples while in its liands, or if" the damage did accrue. to the apples while in its hands, it must further show the cause therefor, ~nd unless th~ cause .of the damage to the apples was the inherent nature of the goods, you must find your verdict for the plaintiff.


·. INSTRUCTION NO. 5.

The court instructs the jury that if you believe from the evidence ·in this case that J\icDonald & Sons at Watsonv.ille, · in the State of California, delivered the apples in question in Southern Railway car No. 122243 to the initial carrier under a contract with it that the apples be carried under ,standard ventilation, and the defendant did not do so and the apples were thereby injured, then you must find your verdict for the plaintiff.

INSTRUCTION NO. 6.

The court instructs the jury that if you believe from the evidence and the other instructions in this case that damage to the apples in question occurred on the road of the defendant, and might have been caused by one or more of several things, for one or more of which the defendant is liable, and for one or more of which it is not, then you must find your verdict for the plaintiff; the court telling you that the burden of evidence is on the defendant to show !rom what cause the damage did arise, if it arose on its road, and the presumption is that it did occur on its road unless you believe from

the evidence the defendant has proven by a prepage 216 ~ ponderance of the evidence. that it delivered them

to the plaintiff in the condition in which it received them.

INSTR.UCTION NO. 8.

The court instructs tl1e jury that if you believe from the evidence that the apples in question were delivered at Watsonville, California, to the Southern Pacific Railway Company in good condition, properly packed, loaded, and placed in the car and that the apples were transported to Memphis, Tennessee, and there delivered to the Southern Railway Company, and that the Southern Railway Company transported the apples to Richmond, Virginia, and there offered them for delivery to Burton and Briel, Incorporated, in a damaged condition; there is a prirna fame presumption of law that the damage accrued to the apples while they were in the hands of the Southern Railway Company, and the court further tells tl1e jury that the burden of evidence is upon the said Southern Railway Company to overcome the presumption that said damage accrued to the apples while in its possession, and if you further believe from the evi-


dence that the said Southern Railway Company has not sustained this burden you must find your verdict for the plaintiff.

INSTRUCTION NO. 9.

The court instructs the jury that if you should find your . verdict for the plaintiff, then the measure of damage is the difference in market value between the apples in the damaged condition in which yon find them to have been delivered to the plaintiff and their market value in an undamaged condition; the market value to be those at Richmond, Virginia, at the time the apples should have been delivered by the Southern Railway Company to Burton and Briel, Incorporated; the amount of damage, however, not to exceed $645.50 with interest.

page 217 ~ The said defendant objected to the giving of instructions numbers 4, 6, and 8, requested by the

plaintiff as follows:

As to Instruction No. 4 requested by the plaintiff, the defendant by counsel objected on the ground that while the plaintiff would make a pri1na facie case by showing delivery to the initial carrier in good condition and delivery ·at destination by the defendant in a damaged condition, the burden of proof does not shift to the defendant to show that the damage did not occur while the shipment was in its hands, and that while the burden to proceed with the evidence is then with the defendant, the burden of proof does not shift but is upon the plaintiff throughout the case.

As to Instruction No. 6 requested by the plaintiff, the defendant objected on the ground that if the jury believe damage might have resulted from several things, for one or more of which defendant would be liable and for one or more of which it would not be liable, then the jury would have to find for the defendant and not for the plaintiff, and on the fur .. ther ground that while the plaintiff makes a prima facie case by showing delivery to the initial carrier in good condition and delivery by the defendant in damaged condition and the defendant is then required to go forward with the evidence, the burden is not on the defendant to· show from what cause the damage did arise and that if after all of the evidence is in the jury cannot say from what cause the damage resulted

----- ---------


there would have to be a verdict for the defendant as the burden of proof remains upon the plaintiff throughout the triaL

As to Instruction. No. '8 defendant objected on t.he ground. that after setting forth the circumstances under which the plaintiff would make a pri1na facie case it further told the jury that the burden of evidence was then upon the defendant· ' to overcome the presumption that damage ocpage 218 ~ curred to the shipment while in defendant's pos-

session, and that if the jury believed that the defendant had not sustained that burden they must find for the plaintiff which was erroneous as the burden does not shift ·from the plaintiff to the defendant when a prima facie case is made but only renders it incumbent upon the defendant to ·go forward with the evidence but that when all of the evidence is in the burden of proof is still upon the plaintiff~

Which objections to said instructions the court overruled --and gave all of said instructions requested by the plaintiff as hereinbefore set forth, to which action of the court the defendant then and there excepted.

And the court further certifies that upon motion of defendant by counsel it also gave the following instructions lettered A and D.

A.

The court instructs the jury that the defendant Southern Ra•ilway Company was the delivering carrier of the shipment of apples involved in this action and that as such delivering carrier it is not respm~sible or liable in any way to the ·plaintiff for anything that occurred to said shipment of ap-ples before the car was delivered to the Southern Railway Company at Memphis, Tennessee, or after it was delivered ~o the plaintiff, Burton & Briel, Incorporated, at Richmond, Virginia. ·

. D.

The court instructs the jury that if you believe from the evidence U1at the plaintiff, Burton and Briel, Incorporated, ~sold the carload of apples at a price agreed upon after the ·arrival of the carload of apples in Richmond and after the purchaser had seen them and that thereafter· the plaintiff, Burton & Briel, Incorporated, allowed a deduction of $210.00

172 Supreme Court of Appeals o.f Yirginia.

from such agre~d purchase price and that such deduction was claimed by the plaintiff as a -part of its loss, then

page 219 ~ the defendant, Southern Railway Company, can-. not be charged with or helc;l responsible in ·any

·way for said a·mount of $210.00 so deducted from such agreed purchase price.

The court further certifies that the defendant moved the court to give the fellowing Instruction F.

F.

With respect to the 821 crates or baskets' of apples which were neither broken nor robbed, the court instructs the jury· that the burden is upon the plaintiff, Burton and Briel, Incorporated, to show by a preponderance of the evid.ence that said crates or baskets were in a damaged condition upon their delivery at Richmond by the defe~dant, Southern Railway Company, before it can recover from the defendant, Southern

· Railway Company, as to said crates or baskets;. and if the jury believe from the evidence that said crates or baskets were not damaged upon their delivery by the Southern Railway Company at Richmond, then you must find for the defendant, Southern Railway Company, as to said 821 crates or baskets.

And the court instructs you as to said 821 crates or baskets of apples that the Southern R·ailway Company is not liable in any way for the damage, if any, which the plaintiff may .have sustained by reason of the inherent tendency of perishable fruit, such as apples to ripen, and that although you may believe from the evidence that said 821 crates or baskets were of a more yellowish color upon their delivery ·at Richmond than they were when they were loaded in Ca1ifornia, yet if you further believe from the evidence that such condition resulted from the inherent tendency of apples to ripen, then the plaintiff cannot recover from the defendant therefor and you should find for the Southern Railway Company as to said 821 crates or baskets.

page 220 ~ But the court modified said Instruction F, by adding at the end thereof th~ following:

''unless the jury further believe from the evidence that the apples at the time of delivery to the consignee were in a bruised condition.''

Southern Railway Co! v. B.urton & Briel, Inc. 173

which instruction so modified the court gave and the defendant by counsel objected to the action of the court in not giving said Instruction F as requested ·and in modifying said instruction as aforesaid on the ground that there was no evidence that the 821 crates or baskets of apples to which the instruction was directed were bruised.

And the court further certifies that the defendant, by ~ounsel moved the court to give the following Instruction B:

B.

The court instructs the jury that it was the duty of the shipper McDonald and Sons to properly load and brace the shipment of apples in the car before it was delivered to the original carrier in California for shipment to Richmond, and if the jury believe from the evidence that s·aid shipment of apples was not securely braced with proper bracing in such manner as to protect said shipment from the usual and ordinary movement and jolting of railroad cars and trains, and if you further believe that any damage to said apples re·sulted from such failure to properly brace the shipment in the car, then the defendant, Southern Railway Company is not liable for said damage, if any, and you must find for the defendant, Southern Railway Company, as to such damage, if any.

But the court refused to give said Instruction B on the ground there was no evidence in the record to support defendant's theory that the shipment was not properly braced, to which action of the court in refusing to give said Instruction B the defendant excepted.

page 221 ~ .And the court further certifies that the instructions given to the jury as hereinbefore set forth

were all of the instructions given to the jury upon the trial of this case.

Wherefore said defendant now tenders this its Bill of Ex·ceptions No.2, and prays that the same may be signed, sealed ·and made a part of the record in this case, which is accordingly done on this the 9th day of August, 1926, within the time prescribed by law.

And it is hereby further certified that it appears in writing that counsel of record for the plaintiff has had reasona-

17 4 Supreme CQurt of Appeals of Virginia

ble notice of the time and place at which this Bill of Exceptions was tendered to the court.

FRAN!{ T. SUTTON, Jr., (Seal) Judge, sitting at the request of the Ron. B.everly T. Crump.

page 221 ~ I, Luther Libby, Clerk of the Law and Equity . ' Court of the City of Richmond, do hereby certify that the foregoing is a true transcript of the· record in the above entitled action wherein Burton & Briel, Incorporated, is plaintiff, and Southern R-ailway Company, a Corporation, is defendant, and that the said plaintiff had due notice of the intention of the defendant to apply for such transcript.

Witness my hand this the 17th day of August, 1926.

LUTHER LIBBY, Clerk.

Fee for this ·Record $87.50.

A Copy-Teste:

H. STEW ART JONES, C. C.

INDEX Page

Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Notice of motion ....................... ; . . . . . . . . . . . 29 Verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Judgment .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Bill of Exceptions No. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

1{. W. McDonald . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 L. E. DeLaney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 W. E. Burton ............... 113-162-99-98-81-80-59-38

Plaintiff's Exhibit A-Bill of Lading . . . . . . . . . . . . . . . . . 41 Plaintiff's Exhibit B-BilJ of L-ac11ng . . . . . . . . . . . . . . . . . 47 Exhibit No. 4-Inspection Report . . . . . . . . . . . . . . . . . . . . 54 Plaintiff's Exhibit C-Contra.ct . . . . . . . . . . . . . . . . . . . . . 56 Plaintiff's Exhibit No. 5-Delivery Order.............. 66 Plaintiff'.r;; Exhibit No. 6-Account. . . . . . . . . . . . . . . . . . . 68 Exhibit No. 7-Letter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

T. W. Allen .............................. 89-87-84-83 C. C. Pearman. . . . ........... · ................. 94-90 Bert Lee ..................................... 97-95 E. J. Robinson .......................... 108-107-101

Defendant's Exhibit No. 1-Warehouse receipt ........ 103 Clyde Raymond Tipton. . . . ............. o • • • • • • • 110 W. N. Harper .................................. 112 Roland Barfoot. . . . . ................. 1.29-128-120-115

Exhibit No. 9-Account .............................. 125 Exhibit No. 10-Bill of lading .............. o ••••••• 131

D. S. Wooldridge ............................ 134-132 -- Edwards. . . . ....................... 162-136-135 N. E. Hanson .................... 158-156-153-146-138

Def€'ndant's Exhibit No. 3-Report to State Corp. Com .. 160 Exhibit No. 8-Bill of lading ...... ~ .......... o • • • • • • • 165 I11structions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 Defendant's Bill of Exceptions No. 2. . . . . . . . . . . . . . . . . . 168 Certificate ................................. o ••••••• 174

burton briel, incorporated, defendant in error

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