ment has the support of some well-considered cases. Among them we cite: Smeltzer v. Railroad 158 Fed. 649; Railroad v. Mitchell, 91 N. E. Rep. 735; Railroad v. Scott, 118 S. W. Rep. 992. . Affirmed. CHICAGO & NORTHWESTERN RAILWAY COMPANY v. WHITNACK PRODUCE COMPANY. 258 U. S. 369. 1922. MR. JUSTICE MCREYNOLDS delivered the opinion of the court. The respondent Produce Company recovered a judgment against petitioner, the delivering carrier, for damages to two carloads of apples transported during November, 1914, upon through bills of lading over connecting lines from points in New York State to one in Nebraska. The evidence tended to show that the apples were in good condition when received by the initial carrier, but were frozen when delivered at destination. Where the damage occurred was not shown. Petitioner moved for a directed verdict claiming no recovery could be had against it without affirmative evidence that it caused the damage. Having denied this motion, the court instructed the jury that there was a presumption of damage upon the line of the last carrier, and the Supreme Court of Nebraska approved the charge. The single question now presented for consideration is whether, since the Carmack Amendment, a presumption arises that the injury occurred on the delivering carrier's line, when goods moving in interstate commerce upon through bills of lading are delivered in bad condition and the evidence shows they were sound when received by the initial carrier but does not affirmatively establish where the loss occurred. It is established doctrine that the rights and liabilities in respect of damage to goods moving in interstate commerce under through bills of lading depend upon acts of Congress, agreements between the parties and common law principles accepted and enforced in the federal courts. New York Central & Hudson River R. R. Co. 2 See Galveston, N. & S. A. Ry. Co. v. Wallace (1912), 223 U. S. 481; Atlantic C. L. R. Co. v. Glenn (1915), 239 U. S. 388. As to liability of initial carrier for acts of subsequent carriers in their capacity of warehousemen see Norfolk & W. Ry. Co. v. Stuart's Draft M. Co. (1909), 109 Va. 184: Wien v. New York C. & H. R. R. R. Co. (N. Y.. 1915), 166 App. Div. 766: Dodge & Dent Mfg. Co. v. Pennsylvania R. R. Co. (N. Y., 1916), 175 App. Div. 823. v. Beaham, 242 U. S. 148, 151. While this court has not expressly approved it, we think the common-law rule, supported both by reason and authority, is correctly stated in § 1348, Hutchinson on Carriers, 3d ed. "A connecting carrier who has completed the transportation and delivered the goods to the consignee in a damaged condition or deficient in quantity, will be held liable in an action for the damage or deficiency, without proof that it was occasioned by his fault, unless he can show that he received them in the condition in which he has delivered them. The condition and quantity of the goods. when they were delivered to the first of the connecting carriers, being shown, the presumption will arise that they continued in that condition down to the time of their delivery to the carrier completing their transportation and making the delivery to the consignee, and that the injury or loss occurred while they were in his possession." Some of the pertinent cases are collected in a note below.a The petitioner insists that this common-law rule conflicts with the Carmack Amendment to the Interstate Commerce Act, c. 3591, 31 Stat. 584, 595, which requires issuance of a through bill of lading by initial carrier and declares it liable for damages occurring anywhere along the route, as interpreted and applied by this court. But we find no inconsistency between the amendment or any other federal legislation and the challenged rule. Properly understood, Charleston & Western Carolina Ry. Co. v. Varnville Furniture Co., 237 U. S. 597, especially relied upon, gives no support to the contrary view. a Smith v. New York Central R. R. Co., 43 Barb. (N. Y.) 225; Cote v. N. Y., N. H. & H. R. R. Co., 182 Mass. 290; Laughlin v. Chicago & Northwestern Ry. Co., 28 Wis. 204; Phila., Balt. & Wash. R. R. Co. v. Diffendal, 109 Md. 494; Blumenthal v. Central R. R. Co., 88 N. J. L. 254; Pennsylvania R. R. Co. v. Naive, 112 Tenn. 239; Colbath v. Bangor & Aroostook R. R. Co., 105 Me. 379; Willett v. Southern Ry. Co., 66 S. Car. 477. The following cases hold that the presumption is not in conflict with the Carmack Amendment: Erisman v. Chicago, B. & Q. R. R. Co., 180 Ia. 759; Glassman v. Chicago, R. I. & P. Ry. Co., 166 Ia. 255: Mewborn & Co. v. Louisville & Nashville R. R. Co., 170 N. Car. 205; Chicago, R. I. & P. Ry. Co. v. Harrington, 44 Okla. 41; Eastover Mule Co. v. Atlantic Coast Line R. R. Co., 99 S. Car. 470. b Carmack Amendment: "That any common carrier, railroad, or transportation company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law." That cause involved the South Carolina statute which imposed a penalty of $50 upon the carrier for failure to pay within forty days for damages suffered by goods transported in interstate commerce. The opinion expressly states, "The defendant contended that the law imposing the penalty was invalid under the Act to Regulate Commerce, especially § 20, as amended by the Act of June 29, 1906, known as the Carmack Amendment"; refers to the penalty as "The only matter that we are considering"; and points out that "The state law was not contrived in aid of the policy of Congress, but to enforce a state policy differently conceived." As the Supreme Court of South Carolina sustained the act and permitted recovery of the penalty, its judgment was necessarily. reversed. Here there is no question of conflict between a state statute and any federal policy; and nothing in the words of the amendment indicates a legislative purpose to abrogate the accepted commonlaw doctrine concerning presumption. The suggestion that by imposing additional liability upon the initial carrier the amendment provides an adequate remedy for shippers and thereby removes the necessity for any presumption against the terminal one and impliedly abrogates the rule, is unsound. There are adequate reasons why shippers should have the benefit of both; and we think Congress so intended. The judgment of the court below is Affirmed. MR. JUSTICE CLARKE took no part in the consideration or decision of this cause. INDEX [References are to pages.] A. ACT OF GOD, relieves from insurance liability, 591. What is, 592. may not be pleaded in case of negligences, 592. may not be pleaded in case of deviation, 599. may it be pleaded when delay has contributed? 599, 602n. ACT OF PUBLIC AUTHORITY, relieves from insurance liability, 595, 597n. ACT OF PUBLIC ENEMY, relieves from insurance liability, 598. may not be pleaded in case of deviation, 598, 599n. ACT OF SHIPPER, causing loss relieves from insurance liability, 607, 610n. ADEQUATE FACILITIES, no duty to serve if inn is full, 450. what facilities innkeeper must furnish, 451n. guest has no right to particular room, 452n. carrier receiving no franchise not bound to increase facilities, 452. railroad stations must be kept safe, 453. heating stations and trains, 434n. courteous treatment, 454n. railroads must furnish rolling-stock for ordinary traffic, 455-460. special cars for perishable goods, 461. power of commissions to require adequate facilities, 462n. duty to make connections, 462. duty of railroads to establish stations, 468–475. under statute, 475n. duty with regard to switch connections, 476–481. under statute, 481-486. duty to complete railroad line partly constructed, 486-489. [References are to pages.] BASES OF PUBLIC SERVICE DUTIES, common callings, 1-11. exercise of franchises, 12-33. legislation, 34-82. economic monopoly, 83-103. C. CAPITAL. See RATES. CATTLE, duty of railroad to carry, 111. COAL, regulation of price of, 74, 79n. COLOR, refusal to serve because of, 156. COMMODITIES CLAUSE, applied, 179-182. COMMON CALLINGS, duty of those engaged in, to use care, 1, 2, 3. who were anciently engaged in, 3, 9n. common surgeon, 1. innkeepers, 3, 4, 8n. smiths, 2, 3, 8n. tailors, 3. common carriers, 2, 3, 7n, Sn. criminal liability of, for refusal to serve, 5. survivors of those engaged in, 9n. physicians not now engaged in, 9. Pullman service as a, 10. telephone service as a, 11. COMMON CARRIAGE. See COMMON CARRIERS, COMMON CARRIERS. See RAILROADS and PASSENGER CARRIERS, duty to use care, 2, 3. duty to serve, 3, 7n. pipe-lines as, 79. what service must be rendered by, 104-108, 111-143. who must be served and excuses for refusal to serve, 151-165. rates fixed by, 223–228. State's power to fix rates and its delegation, 230-237, 241–247. operating expenses and maintenance, 298-302, 306, 311–322. discrimination, 393-441, 444-449. adequate facilities, 452-489. withdrawal from service, 497-508, 513-527, 534. |