Illinois Cent. R. Co. v. H. Rouw & Co.

• Decision Date: 15 November 1940
• Docket Number: 2.
• Parties: ILLINOIS CENT. R. CO. v. H. ROUW & CO.
• Court: Tennessee Court of Appeals

159 S.W.2d 839

25 Tenn.App. 475

ILLINOIS CENT. R. CO. v. H. ROUW & CO.

No. 2.

Court of Appeals of Tennessee, Western Section.

November 15, 1940

Certiorari Denied by Supreme Court March 1, 1941.

Appeal in Error from Circuit Court, Gibson County; W. W. Bond Judge.

Action by H. Rouw & Co. against the Illinois Central Railroad Company to recover compensation for damage done to a carload shipment of strawberries entrusted to defendant for transportation. Judgment was for the plaintiff, and the defendant appeals in error.

Judgment affirmed.

J. P Rhodes, of Milan, and Clinton H. McKay, of Memphis, for plaintiff in error.

Robert P. Adams, of Trenton, for defendant in error.

ANDERSON Judge.

This was an action by the original plaintiff, H. Rouw & Company against the Illinois Central Railroad Company, wherein the plaintiff sought to recover compensation for the damage done a carload shipment of strawberries entrusted to it for transportation. The determinative question presented for consideration does not require that we concern ourselves with whether the action was one ex contractu or one sounding in tort. The gravamen of the complaint is to be found in the charge that the plaintiff delivered to the defendant at Greenfield, Tennessee, 440 crates of strawberries which being at that time in sound, merchantable condition were delivered to the consignee at destination in a damaged condition. No specific acts of negligence were charged.

The defendant plead the general issue and also filed a special plea to the effect that the deterioration, if any, was brought about by the inherent vice in the shipment and not by any fault of the defendant.

The issues thus made were submitted to a jury, resulting in a verdict and judgment for the plaintiff. The defendant appealed in error.

The sole question for consideration arises upon the defendant's contention that there was no evidence to support the verdict and that, hence, the judge should have sustained its motion for a directed verdict made at the conclusion of all evidence.

The scope of the inquiry has been narrowed in this Court. There is no question but that the shipment arrived in a damaged condition and none with respect to any delay. The insistence of the defendant is that the undisputed evidence was to the effect that it had furnished a proper car, had iced and re-iced it properly, and that the damaged condition of the strawberries at destination was due to their inherent nature. In short, it contends that strawberries, being of a perishable nature, its duty was to exercise ordinary care only in handling of the shipment and that it performed that duty when it furnished a suitable car and kept the shipment properly iced throughout the time it was in its possession.

Before discussing the evidence, it is expedient to examine the principles of law that are applicable to the controversy.

With respect to perishable commodities the obligation of a carrier is not that of an insurer against loss or damage arising solely from their nature and inherent character, as, for instance, where they succumb to the forces of natural decay, fermentation or evaporation without fault on the part of the carrier. As against hazards of this character its obligation is to exercise ordinary care to preserve the property in the condition in which it was delivered to it, that is, that degree of care which prudent men would ordinarily exercise with respect to their own property under similar circumstances. It is no more liable for loss or destruction resulting solely from the inherent infirmity of such goods, than it is for loss entailed solely by an act of God or of the public enemy. Sindle v. American Ry. Express Co., 8 Tenn.App. 594; 13 C.J.S., Carriers, § 79, p. 151 et seq. This rule has been developed as another exception to the general rule of the common law imposing upon a common carrier of goods for hire a measure of liability which, in practical effect, is that of an insurer, with certain other well-known exceptions not necessary to mention.

With respect to these principles there seems to be very general agreement among the cases, but not so as to the burden of procedural steps and the burden of proof.

The general rule, subject to certain exceptions arising out of contractual exemptions, is that upon proof of the delivery of property to a carrier in good condition and the delivery in bad condition to the consignee, a prima facie case of liability is made out in the sense that if there be no explanation at all as to the cause of the loss or damage, judgment against the carrier is warranted. Compare Railroad Co. v. Naive, 112 Tenn. 239, 264, 79 S.W. 124, 64 L.R.A. 443.

The disagreement to be found in the decisions is with respect to just how far the carrier must go in order to overcome the prima facie case thus made, that is, whether he must prove affirmatively that the loss or damage was due to the inherent nature and qualities of the goods within the rule above stated, or whether the presumption, by virtue of which the plaintiff is held to have made a prima facie case, is overcome by proof by the carrier that it exercised ordinary care to preserve the condition of the shipment and retard the natural processes of decay and deterioration while it was in its care.

The cases dealing with the question are collected in a note appearing in 115 A.L.R. 1274. It would serve no useful purpose to enter upon a discussion of them here.

We think a case of the kind indicated is assimilable to a case involving loss or damage to livestock in the hands of a carrier for transportation. In such case the mere factum of the loss or damage does not fix absolutely the liability of the carrier but simply operates to impose upon it the necessity of showing that the loss or damage did not result from its negligence and this may be done by proof that the shipment was handled in such a manner as to warrant the conclusion that the requirement of ordinary care had been met, without further proof that such loss or damage was due to the peculiar propensities of the animal. Railway Co. v. Wynn, 88 Tenn. 320, 332, 14 S.W. 311. The weight of authority we think supports the view that this rule is also applicable in the handling of perishable property. Railroad Co. v. Naive, supra; Southern Pac. Co. v. Itule, 51 Ariz. 25, 74 P.2d 38, 115 A.L.R. 1268, and cases cited in the note thereto; Howe v. Great Northern Railroad Co., 176 Minn. 46, 222 N.W. 290; Higgins & Co. v. Chicago, B. & Q. R. Co., 135 Minn. 402, 161 N.W. 145, L.R.A. 1917C, 507; Railway Express Agency v. H. Rouw & Co., 198 Ark. 423, 128 S.W.2d 989; Railway Express Agency v. H. Rouw & Co., 197 Ark. 1142, 127 S.W.2d 251.

The case of Railway Co. v. Wynn, supra, was an action to recover the value of a mare entrusted to the carrier for transportation from Gallatin, Tennessee, to Lexington, Kentucky. The animal died before reaching her destination. The trial judge charged the jury that if the mare was shown to have been in good condition when delivered to the carrier it was encumbent on the latter to show that her death was not caused by its negligence. With respect to this the Court, after pointing out that the strict common-law rule of liability of a carrier of goods had been relaxed "so that the carrier may exonerate itself from responsibility by either showing that the case falls within one of the exceptions of the common law, or within one of the stipulations of the special contract" [88 Tenn. 320, 14 S.W. 314] and holding that the instruction given by the trial judge was correct as far as it went, said: "But his honor should have gone further in this case, and told the jury that the mere fact that the mare was found to be dead on reaching her destination did not absolutely fix the liability of the carrier, but simply devolved upon it the necessity of showing that the death did not result from its fault or negligence, which it might do by proof that its cars were in good and safe condition; that the transportation was made with all proper care; and that there were no bruises or signs of injury upon the dead body, or indications that death followed from other than natural causes."

This we construe as a recognition of the fact that the carrier may exonerate itself from the imputation of negligence resulting from the plaintiff's prima facie case by showing that the shipment had been handled with ordinary care.

The logic that supports this rule with respect to the carrier's responsibility in the case of a shipment of livestock applies with equal force in the transportation of perishable commodities. See Southern Pac. Co. v. Itule, supra.

There is said also to be some disagreement in the cases with respect to the burden of proof in a case of this kind. A substantial...