Baltimore & O. R. Co. v. Johl & Bebgman

Citation177 So. 778,180 Miss. 593
Decision Date03 January 1938
Docket Number32917
PartiesBALTIMORE & O. R. CO. v. JOHL & BEBGMAN
CourtUnited States State Supreme Court of Mississippi

Division A

1 CARRIERS.

The common-law liability of a common carrier is that of an insurer, and the only exception thereto is the act of God or of the public enemy.

2 CARRIERS.

Under common law, a carrier seeking to escape liability for damage to goods on ground that damage was caused by act of God must show not only that act of God was proximate cause of damage but must prove absence of negligence on its part, since the facts to be proven are within the knowledge of the carrier.

3 CARRIERS.

Evidence established that an unprecedented flood was sole proximate cause of loss of shoes being transported by carrier in interstate commerce, precluding recovery of damages, notwithstanding, if shipment had been halted in a different yard than that in which it was halted at time of flood, injury would not have occurred, where there had been no warning given to common carrier that there would be or might be an unprecedented flood impending (Carmack Amendment, 49 U.S.C. A., section 20(11)).

4. CARRIERS.

Where shipment of shoes in interstate commerce was damaged by unprecedented flood, carrier was not liable for failure to recondition shoes while in transit, where carrier did not have facilities to enable it to recondition shoes (Carmack Amendment, 49 U.S.C. A., section 20(11)).

HON. J. L. WILLIAMS, Chancellor.

APPEAL from the chancery court of Washington county HON. J. L. WILLIAMS, Chancellor.

Suit by Johl & Bergman against the Baltimore & Ohio Railroad Company. From an adverse judgment, defendant appeals. Judgment reversed, and judgment entered for defendant.

Reversed, and judgment here for the appellant.

Percy & Farish, of Greenville, for appellant.

By the Carmack Amendment to the Interstate Commerce Act (49 U.S.C. A., sec. 20 (11)), Congress has fully legislated upon the duties, obligations, and rights of railroad companies carrying freight in interstate commerce. The statute, in substance, provides for the issuance of uniform bills of lading by interstate carriers and prescribes for the holder thereof remedies against the initial carrier for all losses of freight caused by it or by connecting carriers.

The passage of this act, according to the decisions of the United States Supreme Court, has had the effect of superseding all state rules and regulations concerning interstate carriers of freight and of establishing uniform duties and liabilities based upon bills of lading covering interstate shipments. Any question of liability arising out of the carriers' contract becomes a federal question, to be determined wholly by congressional enactments and the interpretations thereof as announced by the federal courts.

49 U.S.C. A., page 98, note 31; Adams Express Co. v. Croninger, 226 U.S. 490; Cincinnati, N. O. & T. P. Ry. v. Rankin, 241 U.S. 319, 60 L.Ed. 1022; Y. & M. V. R. R. Co. v. Levy & Sons, 106 Miss. 525; Southern Ry. v. Prescott, 240 U.S. 632, 60 L.Ed. 836.

The federal courts, in holding that the Carmack Amendment except as therein provided has not altered the general common law duties of a carrier, are in accord with the universally established rules that carrier is not liable for a loss or injury to freight proximately caused by an act of God, but if, however, there is negligence by the carrier which commingles or co-operates with the vis major in causing the injury, the acts of the carrier will be deemed the proximate cause of the loss.

Singer v. American Express Co., 219 S.W. 662, 255 U.S. 632, 41 S.Ct. 8; National Rice Milling Co. v. New Orleans, etc., Ry., 132 La. 615, 61 So. 708, 234 U.S. 80, 58 L.Ed. 1223; Adams Express Co. v. Croninger, 226 U.S. 490; Feld v. C. & G. Ry., 153 Miss. 601; 4 R. C. L. 717.

It seems fully settled that mere antecedent delay in shipment, though negligent and without reason, and but for which the goods would not have been destroyed, does not amount to such concurring or commingling negligence as renders a carrier Liable for the loss.

Memphis & Charleston R. R. Co. v. Reeves, 10 Wall. 176, 19 L.Ed. 909; Empire State Cattle Co. v. Atchison, T. & S. F. R. R. CO., 147 F. 457, 210 U.S. 1, 52 L.Ed. 931.

Though a contrary rule imposing liability upon the carrier for negligent delay in shipment prevails in many states, the courts of such jurisdictions have followed the federal view in dealing with eases involving interstate shipments. This limitation upon local law has been recognized in Illinois, Indiana, Kentucky, Maine, Minnesota, Nebraska, New York and Ohio.

Ohio Salt Co. v. Baltimore & Ohio R. R. Co., 204 Ill.App. 376; Cleveland, C. C. & St. L. Ry. v. Hayes, 181 Ind. 87, 103 N.E. 839; Kesller & Co. v. Southern R. Co., 200 Ky. 713, 255 S.W. 535; Continental Paper Bag Co. v. Maine C. R. Co., 115 Me. 449, 99 A. 259; Northwestern Consolidated Mill Co. v. Chicago, etc., R. Co., 135 Minn. 363, 160 N.W. 1028; Dolan Fruit Co. v. Davis, 111 Neb. 322, 32 A. L. R. 107; Barnet v. New York Central & Hudson R. Co., 222 N.Y. 195, 118 N.E. 625; Toledo & O. C. R. Co. v. Kibler Bros. & Co., 97 Ohio St. 262, 119 N.E. 733.

There seems to be, however, no conflict between the federal view and the Mississippi rule by reason of the holding of this court in Yazoo & Mississippi Valley Railroad Company v. Millsaps, 76 Miss. 855, 25 So. 672.

The authorities seem settled that in determining a federal question the state courts are compelled to adopt the federal rules relating to burden of proof, irrespective of what the local law might be. The doctrine that the law of the forum applies to matters of evidence and procedure does not obtain in cases where the rules governing burden of proof become matters of substance for maintaining paramount federal jurisdiction.

Central Vermont R. R. Co. v. White, 238 U.S. 507, 59 L.Ed. 1433; Southern Ry. v. Prescott, 240 U.S. 632, 60 L.Ed. 836.

It has been repeatedly held by the United States courts that when goods are received in a damaged condition, the burden devolves upon the carrier to prove only that the loss was caused by an excepted peril, such as an act of God, and if the plaintiff alleges that the carrier's negligence contributed to the injury, the burden of proving t such fault rests upon him who asserts it.

Memphis & Charleston Ry. v. Reeves, 10 Wall. 129, 20 L.Ed. 160; Western Transportation Co. v. Downer, 11 Wall. 129, 20 L.Ed. 160; Galveston, etc., R. Co. v. Wallace, 223 U.S. 481, 56 L.Ed. 516; Republic of France v. French Overseas Corp., 277 U.S. 322, 72 L.Ed. 901; Schnell v. Vallescura, 233 U.S. 296, 79 L.Ed. 373.

In other jurisdictions the state courts have adopted the federal rule as to burden of proof in cases of interstate shipments, irrespective of the fact that their local law, like that of Mississippi, placed the maximum burden upon the carrier.

Barnet v. New York & C. H. R. Co., 222 N.Y. 195, 118 N.E. 625, 46 A. L. R. 312; Louisville & N. R. Co. v. Finlay, 170 So. 207; Hadba v. Baltimore & Ohio R. Co., 183 A.D. 555, 170 N.Y.S. 259; Continental Paper Bag Co. v. Maine Central R. Co., 115 Me. 449, 99 A. 259; Nashville, etc., R. Co. v. Camper, 201 Ala. 581, 78 So. 925; Alabama Great Southern R. Co. v. Conner, 227 Ala. 562, 151 So. 355.

In this case appellant is aware of the principle that when goods are delivered in a damaged condition, an explanation of that fact devolves upon the carrier. When the explanation consists of a showing that the injury was immediately caused by an act of God, appellant has met its burden of establishing want of liability for the loss. Upon such a showing the presumption of negligence disappears, and no duty rests upon appellant, to make additional proof of freedom from negligence. If that charge is made against appellant, it must be predicated upon facts permitting the inference of commingling neglect under a preponderance of the evidence. In the absence of such facts exoneration of the carrier must be concluded.

Measured by the federal law, the evidence shows that the act of God was the efficient, proximate cause of the injury and fails to show affirmatively any negligence of appellant which concurred with the act of God to cause the injury.

The authorities are in accord on the proposition that a carrier is not liable for losses caused by an act of God such as an unprecedented flood unless it could have been avoided by the exercise of ordinary care, skill, and foresight.

10 C. J. 112; 4 R. C. L. 718; Feld v. C. & G. R. Co., 153 Miss. 601; Smith v. Western Ry., 91 Ala. 455, 24 A. S. R. 929; Louisville & N. R. Co. v. Finlay, 170 So. 207; Merritt Creamery Co. v. Atchison, etc., R. Co., 139 Mo.App. 149, 122 S.W. 322; Empire State Cattle Co. v. Atchison, etc., R. Co., 135 F. 135.

The cases seem agreed upon the principle that when a carrier is overtaken, or is about to be, by an act of God, the law requires of it ordinary skill and foresight, and, as a rule, if the carrier uses all the known means to which prudent and experienced carriers ordinarily have recourse, there is no liability for the losses which may ensue.

4 R. C. L. 719.

The appellees have not proved that any negligent acts of the carrier increased the damage caused by the flood, but on the contrary the proof is that appellant exercised reasonable care and diligence in trying to minimize the injury to the goods.

The law is that after a shipment has been overtaken by an act of God the carrier is under a duty to exercise reasonable, and not extraordinary, diligence in endeavoring to minimize the injury to the goods and to prevent further loss.

McNeil Higgins Co. v. Old Dominion S. S. Co., 235 F. 854.

D. S. Strauss, of Greenville, for appellee.

The carrier had the same knowledge of conditions at...

To continue reading

Request your trial
4 cases
  • In re Shavers
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Mississippi
    • October 19, 2009
  • Tom Lyle Grocery Co. v. Rhodes
    • United States
    • United States State Supreme Court of Mississippi
    • January 3, 1938
  • Louisville & N.R. Co. v. Finlay, 3 Div. 270.
    • United States
    • Supreme Court of Alabama
    • January 19, 1939
    ...... or foreseen? The Mississippi court in the recent case of. Baltimore & Ohio R. Co. v. Johl & Bergman, 180 Miss. 593, 177 So. 778, gave expression to like thought when ......
  • Illinois Cent. R. Co. v. Benoit Gin Co.
    • United States
    • United States State Supreme Court of Mississippi
    • May 24, 1971
    ...enemy, except as it may stipulate in its contract against loss or liability at common law. * * *. In Baltimore & O.R. Co. v. Johl & Bergman, 180 Miss. 593, 607-608, 177 So. 778, 782 (1938) this court The common-law liability of a common carrier is that of an insurer, and the only exception ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT