Louisville & N.R. Co. v. Finlay

• Decision Date: 15 October 1936
• Docket Number: 3 Div. 168
• Citation: 170 So. 207,233 Ala. 128
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N.R. CO. v. FINLAY et al.

170 So. 207

233 Ala. 128

LOUISVILLE & N.R. CO. v. FINLAY et al.

3 Div. 168

Supreme Court of Alabama

October 15, 1936

Appeal from Circuit Court, Escambia County; F.W. Hare, Judge.

Action by J.E. Finlay and others, partners under the firm name of Consolidated Trading Company, against the Louisville &amp Nashville Railroad Company. From a judgment for plaintiff defendant appeals.

Reversed and remanded.

C.E Hamilton, of Greenville, McMillan & Caffey, of Brewton, and Steiner, Crum & Weil, of Montgomery, for appellant.

H.C. Rankin, of Brewton, for appellees.

FOSTER Justice.

This is an action at law for the failure to deliver to plaintiff a carload of sugar, received by defendant as a common carrier and to be delivered to plaintiff at Brewton, Ala.

Defendant pleaded, in addition to the general issue, pleas 2, 3, and 4, to which demurrer was overruled. Issue was then taken on them without a special replication. Pleas 2 and 3 allege that the shipment was interstate, and that after it reached its destination at Brewton, there occurred an unprecedented flood, which caused the main streets in Brewton to be submerged in seventeen feet of water and the railroad tracks of defendant also were submerged, and that the damage to the sugar was the proximate result of such act of God.

Plea 3 alleged that loss was the proximate result of a flood that reached a stage seven feet higher than ever before known, and that by the terms of the bill of lading in interstate shipment, defendant was thereby exempt from liability for the damage so occasioned.

Plea 4 did not allege that it was an interstate shipment, but that upon its arrival at Brewton on the morning of March 13, 1929, defendant promptly mailed notice of its arrival, but before the notice was delivered or the merchandise removed, the flood waters reached an unprecedented stage so as to submerge and destroy the carload of sugar on its tracks in Brewton, and that the loss was an act of God and not the result of any negligence of defendant.

The demurrer to pleas 2 and 3 raised the point, among others, that the pleas do not allege that defendant used proper care and diligence in the premises. This demurrer was overruled. They made no such allegation, but plea 4 did allege that the loss was not the result of defendant's negligence.

The defendant was refused the affirmative charge, and contends that it should have been given because it is conceded in briefs for both parties that the evidence shows that the sugar was destroyed by an unprecedented flood, and contends that there was no issue as to negligence, and also that the proof shows an absence of negligence by defendant.

The authorities are abundant that when loss is proximately caused by an act of God, such as an unprecedented flood, which was not foreseeable, the defendant is not liable, and does not need a stipulation in its contract to that effect to be relieved of such liability, if defendant is not wanting in due care in that connection.

But such flood is not the proximate cause if defendant has notice of the danger in time to avert the loss by an exercise of the care and diligence which the circumstances and its relation to the owner demand, and it negligently fails to do so.

It is claimed that under pleas 2 and 3, there was no issue made as to defendant's negligence causing the loss, because they make no allegation of the use of diligence, and because no replication to them alleges negligence by defendant.

Counsel argue that if defendant was negligent the burden was on plaintiff to allege and prove it. They point to a distinction between the rule in the federal courts and in the Alabama courts on that subject. The federal courts hold that the burden is on plaintiff to allege and prove negligence when an act of God is the immediate cause (Memphis & C.R. Co. v. Reeves, 10 Wall. 176, 189, 19 L.Ed. 909), though the Alabama cases hold that the burden to show due diligence is on defendant, as we will show, and this being an interstate shipment the rule of the federal courts prevails. Barnet v. New York Cent. & H.R.R. Co., 222 N.Y. 195, 118 N.E. 625; Hadba v. Baltimore & O.R. Co., 183 A.D. 555, 170 N.Y.S. 769; Continental Paper Bag Co. v. Maine Cent. Railroad Co., 115 Me. 449, 99 A. 259; Nashville, C. & St. L.R. Co. v. Camper, 201 Ala. 581, 78 So. 925; Alabama Great Southern R. Co. v. Conner, 227 Ala. 562, 151 So. 355.

The rule in Alabama, as in other state courts, is that, so long as the duty of a common carrier continues, and it is an insurer, in order to be relieved from liability for loss or injury to goods so carried, by an act of God, it must trace the loss to such act without negligence by it. Atlantic C.L.R. Co. v. Rice, 169 Ala. 265, 52 So. 918, 29 L.R.A. (N.S.) 1214, Ann.Cas.1912B, 389; Alabama G.S.R. Co. v. Quarles & Couturie, 145 Ala. 436, 40 So. 120, 5 L.R.A. (N.S.) 867, 117 Am.St.Rep. 54, 8 Ann.Cas. 308; Alabama G.S.R. Co. v. Elliott & Son, 150 Ala. 381, 43 So. 738, 9 L.R.A. (N.S.) 1264, 124 Am.St.Rep. 72.

In the case of Coosa River Steamboat Co. v. Barclay, 30 Ala. 120, Judge Stone, writing for the court, observed: "In my opinion, 'the act of God,' and the operations of nature, unmixed with human agency or human negligence are synonymous." Also, "in thus laying down my views of the law it is not my purpose to shift the onus, or to relieve carriers from the strict diligence required of them in the older authors. To render the excuse valid, not only must the carrier trace the loss or injury immediately to the operations of nature, but must also convince the jury that such loss or injury resulted from inevitable necessity, 'which no human prudence could foresee or prevent.' "

While there was in that case some difference between him and Rice C.J., it is shown in the case of Steele v. McTyer's Adm'r, 31 Ala. 667, 676, 70 Am.Dec. 516, and in Steele v. Townsend, 37 Ala. 247, 256, 79 Am.Dec. 49, that there was no difference as to the burden of proof as declared by Judge Stone. It is said in the latter case: "The true view is, not that the carrier discharges his liability by showing an act of God, and is then responsible, as an ordinary agent, for negligence; but that the intervention of negligence breaks the carrier's line of defense by showing that the injury or loss was not directly caused by the act of God, or, more correctly speaking, was not the act of God." And when a loss is sustained to goods in the possession of a carrier, though its...