Illinois Cent. R. Co., Inc. v. Paxton

• Decision Date: 26 February 1940
• Docket Number: 33990
• Citation: 193 So. 915,187 Miss. 858
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENT. R. CO., INC., v. PAXTON

193 So. 915

187 Miss. 858

ILLINOIS CENT. R. CO., INC., v. PAXTON

No. 33990

Supreme Court of Mississippi, Division A

February 26, 1940

APPEAL from the circuit court of Copiah county HON. J. F. GUYNES Judge.

Action by J. R. Paxton against the Illinois Central Railroad Company, Incorporated, for damage to a carload of tomatoes. From a judgment entered on a directed verdict for plaintiff defendant appeals. Affirmed.

Affirmed.

M. S McNeil, of Hazlehurst, and Stevens & Stevens, of Jackson, for appellant.

The sole issue in this cause is whether the evidence of plaintiff's witnesses established a basis for the conclusion that the damage to the shipment resulted from rough handling and negligence of the carrier, or whether the carrier carried the burden of proving that the disputed damage did not result from the inherent defective quality or vice of the tomatoes.

Although the declaration alleged that the damage to the shipment was due to the negligence and rough handling of the shipment by the carrier, the plaintiff based his case upon the theory that the tomatoes were delivered to the defendant in good condition, were delivered by the carrier in bad condition, that the carrier was liable as an insurer unless it could exonerate itself by proving how much of the damage resulted from the inherent vice of the tomatoes.

The granting of the peremptory instruction for the plaintiff, without limiting the same to the defendant's tender, and the granting of the instruction on damages, constitutes fatal error. Having elected to sue the defendant on the ground of negligence and not as an insurer, the burden was on the plaintiff to prove negligence and to prove what part of the damage to the shipment resulted from the defendant's negligence, as the defendant could not be liable for damage to the shipment due to its inherently defective condition.

Wentworth Fruit Growers' Ass'n v. Am. Ry. Exp. Co., 1 S.W.2d 1028.

The presumption of negligence is not applicable where the plaintiff in his declaration alleges negligence on the part of the carrier, for when he does he must prove negligence.

Crokett v. St. Louis & H. R. Co., 147 Mo.App. 347, 126 S.W. 243; Hearst v. St. Louis & S. F. R. R. Co., 117 Mo.App. 25, 94 S.W. 794; Am. Ry. Exp. Co. v. Cole, 185 Ark. 532, 48 S.W.2d 223; Ga. S. & F. R. R. Co. v. Makeover, 228 Ky. 492, 15 S.W.2d 293; Edwards v. Am. Ry. Exp. Co., 128 Me. 470, 148 A. 679; Snowden v. Tremont & G. R. R. Co., 140 So. 122; Siegel v. Chicago, etc., Ry. Co., 208 N.W. 78.

Acceptance of the shipment does not raise any presumption that the goods were in good condition when delivered to the carrier.

13 C. J. S., p. 152, par. 79, p. 283, par. 142, p. 538, par. 254; Gramling Electric Refrigeration Co. v. Southern R. Co., 155 S.C. 394, 152 S.E. 670; House v. Wheelock, 254 Ill.App. 149; Goldberg v. N. Y., N. H. & H. R. Co., 130. Me. 96, 153 A. 812.

There can be no doubt that the burden rested upon the plaintiff to prove that the shipment was in good condition when delivered to the carrier as a condition precedent.

Monnier v. U.S. 16 F.2d 812; Mexican Import Co. v. Pa. R. R. Co., 193 Ill.App. 26; Ruddell v. Baltimore & Ohio R. R. Co., 152 Ill.App. 218; House v. Wheelock & Beird, Rec'rs C. & A. R. R. Co., 244 Ill.App. 270; 106 A.L.R. 1161; Snowden v. Tremont & G. R. R. Co., 140 So. 122; Machinery & Supply Co. v. Erie R. R. Co., 40 Ohio App. 99, 178 N.E. 26; Atlantic Coast Line R. Co. v. Enterprise Oil Co., 101 So. 605.

Burden of proof was on plaintiff to prove extent of damage resulting from negligence of carrier, and carrier is not liable for loss occasioned by deterioration due to natural causes.

Elliott on Railroads (2 Ed.), Sec. 1516; St. Louis & Southwestern Ry. Co. v. Grant, 174 S.W. 714; A. Polk & Sons v. N. O. & N.E. R. R. Co. (Miss.), 185 So. 554; Galveston, etc., Ry. Co. v. Licata, 280 S.W. 540; Rudi v. Railroad, 278 S.W. 814.

W. S. Henley, of Hazelhurst, for appellee.

Plaintiff established prima facie case by showing delivery to carrier in sound condition and delivery at destination in a mashed, bruised and decayed condition.

Am. Exp. Co. v. Cole, 185 Ark. 532, 48 S.W.2d 223; Ga., S. & F. R. R. Co. v. Makeover, 228 Ky. 492, 15 S.W.2d 293; Siegel v. Chicago, etc. Ry. Co., 208 N.W. 78; Snowden v. Tremont & G. R. R. Co. (La.), 140 So. 122; Hogg v. L. & N. R. R. Co., 127 S.E. 830; Deming v. Missouri, K. & T. R. R. Co., et al., 138 Okla. 276; Southeastern Exp. Co. v. Namie, 181 So. 515.

Recital in bill of lading establishes that shipment was in good order.

Perkel v. Pa. R. Co., 265 N.Y.S. 597; So. Ry. Co. v. Northwestern Fruit Exch., 98 So. 382, 210 Ala. 519; Effron, Kushner & Co. v. Am. Ry. Exp. Co., 193 N.W. 539, 195 Iowa 1168; Am. Cotton Oil Co. v. Davis, 224 P. 23, 129 Wash. 24; McMahon v. Am. Ry. Exp. Co., 141 A. 566, 6 N.J. Misc. 468, 144 A. 920, 105 N.J.L. 494; Jefferson Macaroni Co. v. Pa. R. Co., 154 A. 188, 9 N.J. Misc. 405, 160 A. 635, 109 N.J.L. 266.

Plaintiff proved shipment was damaged while in the carrier's possession.

Ohio Galvanizing & Mfg. Co. v. So. Pac. Co., 39 F.2d 840; L. & N. R. Co. v. Kinney, 127 So. 804, 221 Ala. 136; Missouri Pac. R. Co. v. Wellborn & Walls, 280 S.W. 18, 170 Ark. 469, certiorari denied, 47 S.Ct. 91, 273 U.S. 694, 71 L.Ed. 844; Alexander v. Texas & Pac. Ry. Co., 129 So. 419, 14 La. App. 245; Goldberg v. N. Y., N. H. & H. R. Co., 153 A. 812, 130 Me. 96.

Where damage was due to concurrent negligence of the carrier and to inherent defects, plaintiff is entitled to recover.

Perkel v. Pa. R. Co., 265 N.Y.S. 597; Chesapeake & O. Ry. Co. v. Timberlake, Currie & Co., Inc. 137 S.E. 507; Lehigh Valley R. Co. v. State of Russia, 21 F.2d 396, certiorari denied, 48 S.Ct. 159, 275 U.S. 571, 72 L.Ed. 432; Missouri & N. A. R. Co. v. United Farmers of America, 292 S.W. 990, 173 Ark. 577; St. Louis-San Francisco Ry. Co. v. Ozark White Line Co., 9 S.W.2d 17, 177 Ark. 1018; Hurley v. I. C. R. Co., 282 S.W. 97, 221 Mo.App. 487; 10 C. J. 121, 122; Spann v. A. & V. R. Co., 74 So. 141, 113 Miss. 239.

Argued orally by John Morgan Stevens and M. S. McNeil, for appellant, and by W. S. Henley, for appellee.

OPINION

Smith, C. J.

The appellee delivered a carload of tomatoes to the appellant at Crystal Springs, Mississippi, for transportation to Philadelphia, Pennsylvania. When the tomatoes were delivered to the consignee, many of them were bruised and decayed, resulting in their being necessarily sold for considerably less than what they would have sold for had they been delivered to the consignee in the same condition they were when delivered to the appellant at Crystal Springs, Mississippi. The appellee's evidence discloses that the tomatoes were inspected when delivered to the appellant, which inspection disclosed that the: "Stock is fairly clean to clean, fairly well formed to slightly misshapen, generally fairly smooth to smooth, firm, less than 1% decay. Grade defects range from 12% to 50%, averaging approximately 35%, consisting chiefly of growth cracks, side holes, worm damage, cuts, and misshapen tomatoes." According to the evidence for the appellee, the "growth cracks, side holes, worm damage (and) cuts" would not result of themselves alone in further damage to the tomatoes if transported and delivered within the usual time therefor, but, according to the evidence for the appellant, they would result in the tomatoes so affected becoming leaky and soft and cause other tomatoes to so become.

The tomatoes were packed in lugs, which were loaded into one of the appellant's cars and so placed and secured that the tomatoes would not mash or bruise in transit unless the position of the lugs should shift, which would not occur if the cars were properly handled. When the tomatoes arrived in Philadelphia, the lugs had "Shifted from A to B end of car 1 to 6 inches". This shifting of the lugs resulted in the bruising and mashing of many of the tomatoes, thereby contributing to the damage to the tomatoes, if any, that resulted from the defects therein when delivered to the appellant. The appellant admits damage for which it was responsible to twenty-three lugs of tomatoes and tendered payment therefor.

The court instructed the jury "to find for the plaintiff and assess...