Grosjean v. Pennsylvania R. Co.

• Decision Date: 12 June 1946
• Docket Number: 30550.
• Parties: GROSJEAN v. PENNSYLVANIA R. CO.
• Court: Ohio Supreme Court

67 N.E.2d 623

146 Ohio St. 643

GROSJEAN v. PENNSYLVANIA R. CO.

No. 30550.

Supreme Court of Ohio

June 12, 1946

Syllabus by the Court.

1. A prima facie case of liability is made against a terminal carrier where evidence is offered that a shipment of livestock, unaccompanied by the owner or his caretaker, was received in good condition by the initial carrier and was delivered in an injured or damaged condition at the destination by the terminal carrier. Wilson v Pennsylvania R. Co., 135 Ohio St. 560, 21 N.E.2d 865 approved and followed.

2. To rebut such prima facie case it is incumbent on the terminal carrier to produce evidence that the injury or damage was not the result of negligence or a breach of contractual duty in connection with the carriage, or that such injury or damage was due to the inherent vice, weakness or natural propensities of the livestock or to some other recognized cause which would exempt the carrier from liability.

3. Such prima facie case is overcome where the evidence introduced in rebuttal counterbalances the evidence by which the prima facie case was made.

4. The burden rests upon the plaintiff to establish his case by a preponderance of all the evidence and that burden does not shift.

5. Where all the evidence on the subject is to the effect that there was no negligence, fault or breach of contractual duty on the part of the carrier in transporting a shipment of livestock, the bare fact that the livestock were afflicted with a disease upon arrival at their destination is insufficient to fix responsibility therefor on the carrier.

Appeal from Court of Appeals, Wayne County.

This action was commenced in the Court of Common Pleas of Wayne county by George F. Grosjean against the Pennsylvania Railroad Company. Plaintiff alleged in his amended petition that he purchased 58 head of cattle at Woodward, Oklahoma, which were delivered in good health and condition to the Atchison, Topeka & Santa Fe Railroad Company, a connecting carrier of the defendant, and consigned and billed to plaintiff at Wooster, Ohio; that plaintiff paid the established rate for the carriage of the cattle; that the defendant and its connecting carrier agreed to convey such livestock safely and securely; that the defendant failed to carry out and perform such agreement; and that by reason of the careless and negligent transportation of the animals they arrived at their destination in an injured and damaged condition. Plaintiff alleged further that he refused to accept the shipment.

Damages for breach of contract and negligence were claimed in the sum of $1,556, with interest, representing the difference between the amount paid plaintiff by the defendant and the reasonable market value of the cattle in the condition in which they were received by the initial carrier.

The answer contained certain admissions, followed by a general denial and particular denials that the animals were in good health and condition when delivered to the initial carrier; that the defendant or the original carrier agreed to convey the animals safely and securely; that defendant was guilty of negligence; or that the cattle were of the value claimed by plaintiff.

Continuing, the answer averred that the shipment was made under a uniform livestock contract. Such contract contained the following provision:

'Sec. 1(a) Except in the case of its negligence proximately contributing thereto, no carrier or party in possession of all or any of the livestock herein described shall be liable for any loss thereof or damage thereto or delay caused by act of God, the public enemy, quarantine, the authority of law, the inherent vice, weakness, or natural propensities of the animal, or the act or default of the shipper or owner, or the agent of either, or by riots, strikes, stoppage of labor or threatened violence.'

Next, the answer set forth that the cattle shipped by the plaintiff were suffering from an inherent vice or weakness, to wit: a disease known as hemorrhagic septicemia, and that their condition upon arrival, complained of by plaintiff, was due to such cause and not to any fault or negligence on the part of the carriers.

Concluding, the answer averred that the shipment was made promptly and expeditiously, and that no delay or improper handling occurred.

The prayer of the answer asked that the amended petition be dismissed at plaintiff's costs.

For reply, the plaintiff admitted shipment under a uniform livestock contract containing the provision quoted in the answer, and denied 'every allegation and statement of fact in the defendant's answer contained not being admissions or denials of allegations of the plaintiff's amended petition.'

Upon the trial, the evidence introduced by plaintiff established that the shipment in question consisted of 58 calves, six or seven months old, most of which plaintiff purchased on October 8, 1943, in Woodward, Oklahoma, at a sale conducted by the Woodward Livestock Commission Company. The remainder of the calves were purchased by plaintiff about the same time directly from a farmer and cattle raiser residing near Woodward. According to the testimony, the animals appeared to be in good condition, and a veterinarian of Woodward issued a certificate certifying them free from disease. The shipment left Woodward in a cattle car, over the Atchison, Topeka & Santa Fe railroad, on the early morning of October 10, 1943, and reached Wooster, Ohio, via the Pennsylvania railroad, on the afternoon of October 14, 1943. Upon arrival, the calves were weak and sick and one was dead in the car. They were unloaded and four more were dead by the next morning. Plaintiff refused the shipment.

In its evidence, the defendant traced the shipment from Woodward, Oklahoma, to Wooster, Ohio. Such evidence, consisting largely of official records, indicated that the transportation was in all respects normal and without any untoward incident. The calves were unloaded, fed and watered at Kansas City, Missouri, and again at Chicago, Illinois. The records contained no statement of sickness or injury. The only unusual incident was a delay of 15 minutes enroute, because of a hotbox on another car of the train.

Upon refusal of the shipment, the defendant transported the calves to Pittsburgh, Pennsylvania.

Defendant called as its witness a Pittsburgh veterinarian who had examined the calves after their arrival at Pittsburgh. He testified that he did not discover any bruises or violent injury to the animals, but that they were affected with a serious disease known as hemorrhagic septicemia, commonly called 'shipping fever'; that such disease is a bacterial infection of high virulency; that all animals have the bacteria lying dormant in their lungs, which bacteria become active when the animals are debilitated and lack resistance; and that it is a weakness found particularly in young cattle and frequently develops when they are suddenly taken away from their mothers. In answer to a hypothetical question, the doctor expressed the opinion that the calves in controversy were sick before the shipment began.

At the close of plaintiff's case and again at the close of all the evidence the defendant moved for a directed verdict, which motions were overruled.

In submitting the case to the jury, the court eliminated the issue of negligence because none appeared from the evidence. In the general charge the court stated:

'So the only issue for you to consider is whether or not there was a breach of contract to convey these cattle from Woodward, Oklahoma, to Wooster, Ohio, and that contract is based upon plaintiff's exhibit 'A', which is termed a uniform livestock contract.'

The jury returned a verdict for the plaintiff in the full amount claimed, and defendant's motion for judgment notwithstanding the verdict was overruled. From that ruling an appeal was taken on questions of law.

The Court of Appeals reversed the judgment of the trial court and rendered final judgment for the defendant. In its opinion, the Court of Appeals said:

'Having properly determined as a matter of law that the defendant was not guilty of negligence, it was the duty of the trial court to enter judgment for the defendant, and its failure so to do was error.'

A motion to require the Court of Appeals to certify its record having been allowed by this court, the case is here for determination on its merits.

Critchfield Critchfield & Critchfield, of Wooster, and Christian E. Rhonemus, of Rittman, for appellant.

Burt,...