Hall v. H. E. & W. T. Ry. Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: ODOM, J.
• Citation: Hall v. H. E. & W. T. Ry. Co., 121 So. 769, 9 La.App. 577 (La. App. 1928)
• Decision Date: 14 March 1928
• Docket Number: 2452
• Parties: HALL ET AL. v. H. E. & W. T. RY. CO. ET AL

121 So. 769

9 La.App. 577

HALL ET AL. v. H. E. & W. T. RY. CO. ET AL

No. 2452

Court of Appeals of Louisiana, Second Circuit

March 14, 1928

Rehearing Refused June 28, 1928.

Writ of Certiorari and Review Refused by Supreme Court January 2 1929.

Appeal from the Eleventh Judicial District Court, Parish of DeSoto. Hon. Hal A. Burgess, Judge.

Action by W. R. Hall et als. against Houston East and West Texas Railway Company et als.

There was judgment for plaintiffs and defendants appealed.

Judgment reversed.

Parsons and Colvin, of Mansfield, attorneys for plaintiffs appellees.

Wise Randolph, Rendall and Freyer, of Shreveport, attorneys for defendants, appellants.

OPINION

ODOM, J.

On October 9, 1923, the plaintiffs purchased from the Ross Brothers Horse & Mule Company at Fort Worth, Texas, twenty-eight head of livestock, consisting of horses and mares. Ross Brothers delivered the stock to the Houston & Texas Central Railway Company, a Texas corporation, for shipment to plaintiff at Keachie, Louisiana. The stock were loaded by said railway company in a 36-foot stock-car late in the afternoon, and that carrier issued to Ross Brothers, the shipper, its through bill of lading, with plaintiffs as consignees, the stock to be delivered to them at Keachie, Louisiana.

The initial carrier transported the car over its line of railroad to Nacogdoches, Texas, and there delivered it to the Houston East & West Texas Railway Company, which carrier in turn hauled the car over its line of road to Logansport, Louisiana, where it was delivered to the Houston & Shreveport Railroad Company, by which the car was delivered to the plaintiffs at Keachie.

The stock, when delivered at Keachie, were in bad condition, some of them being bruised, crippled and scarred, and two of them died.

Plaintiffs brought suit against the Houston East & West Texas Railway Company and the Houston & Shreveport Railroad Company, the terminal or delivering carrier, for $ 376.00, the alleged damage to the stock.

Plaintiffs, as a cause of action, specifically allege that "through the fault, negligence and carelessness of the defendant companies, their servants, agents and employees in hauling and handling said animals" they were injured and damaged to the amount of $ 376.00.

Defendants, in answer, admit they handled the stock as connecting and delivering carriers in the capacity of agents for the initial carrier with whom the contract of shipment was made,

"but that the terms and provisions in such contract inured to their benefit and there is specially urged in defense herein section 1, paragraphs A and B and section 2, paragraph C of said contract * * * and defendants allege that whatever damage was so suffered by said shipment was the result of causes set forth in said contract as above referred to, for which defendants are not liable by the terms thereof."

And they further plead, in the alternative, that whatever damage was occasioned to said shipment in route did not occur while the animals were in the custody and possession of defendants or through their negligence or that of their employees but was occasioned prior to the receipt of said shipment by defendants.

There was judgment in the lower court for plaintiffs as prayed for and defendants have appealed.

OPINION.

There is practically no dispute as to the condition of the animals when delivered at Keachie, Louisiana. Some of them were bruised, scarred and crippled and as a result, two of them died.

Plaintiffs proved to our satisfaction that on account of the injuries to the animals they were damaged to the extent of $ 376.00, the amount claimed; so that the only question for us to determine is, whether these defendants are liable for that damage.

These defendants were not the initial carriers. The car of live stock was received by the Houston & Texas Central Railway Company at Fort Worth, Texas, which contracted with the shipper to deliver the live stock to plaintiffs at Keachie, Louisiana, as consignees, using the defendants as connecting and delivering carriers.

Plaintiffs do not seek to hold the initial carrier for the loss and damage, but sue the connecting and delivering carriers and, as a cause of action, allege that the injury to the stock was due to the fault, carelessness and negligence of the latter.

As this was an interstate shipment, it is governed by the Carmack amendment to the Interstate Commerce Act. Under that amendment, liability for goods damaged or destroyed is imposed upon the initial carrier, no matter where the loss occurs, and it is well settled that other carriers en route are not primarily liable unless the loss or damage occurred on their lines.

10 Corpus Juris, 544, and authorities cited in notes.

Among them:

Duvall vs. Louisiana Western R. Co., 135 La. 189, 65 So. 104.

Thompson vs. Southern Pacific Co., 121 La. 994, 46 So. 993.

Hudson vs. Railroad Co., 226 F. 38.

Houston Railroad Co. vs. Reichardt, 212 S.W. 208.

Lancaster vs. Smith et al., 226 S.W. 460.

And many other authorities which might be cited.

We do not understand that counsel for plaintiffs contend against this law as recognized by all the courts, and from the fact that they ground their action upon alleged fault and negligence of these defendants in handling the shipment, they concede that unless the record discloses that the injury to the stock occurred while in possession of these defendants and on their lines and through their negligence plaintiffs cannot recover.

We find and hold that the record does not show that these defendants were careless or negligent in the handling of the shipment. To the contrary, the undisputed testimony is that the shipment was carefully and prudently handled by the defendants. They picked up the car at Nacogdoches, Texas, and carried it to Keachie, Louisiana. There was but little switching of cars along the lines and no unusual jarring or bumping such as would cause the animals to be thrown against each other or against the sides of the car or cause them to fall and be trampled upon by each other.

The conductor testified that he examined the car at Nacogdoches and at each other place where the train stopped and that at each place the animals were all standing and seemed to be in good condition. They were not unloaded anywhere along the line and he had no opportunity to observe them except through the open spaces in the sides of the car; but through these open spaces he could and did observe that they were all standing. He could not and did not testify that the animals were all in good condition and free from bruises or internal injuries when he received the car on defendants' line of road. But his testimony that the animals were all standing when he received the car, that they stood up all along the line, and that the car was carefully handled when in his possession, is positive and not disputed.

Plaintiffs therefore failed to prove either that the defendants were careless and at fault in handling the animals or that they were injured while in their possession.

But counsel say plaintiffs were not required to make that proof, but that they had a right to rely upon the well recognized rule to the effect that freight "received in good order by the initial carrier is presumed to have been received in like good order by the succeeding carrier, and that a delivery of freight by the terminal carrier in damaged condition raises a presumption that the damage occurred on the delivering carrier's line."

The case of Duvall vs. Louisiana Western Railway Company, 135 La. 189, 65 So. 104, recognized the rule that under the Carmack amendment the intermediate or delivering carrier is liable for only such loss or damage as may have occurred on its or their lines; but it was there held that said amendment did not abrogate the rule of evidence "that goods received in good order by the initial carrier are presumed to have been received in like good order by the succeeding carrier and that a delivery by the...