Louisville & N.R. Co. v. Finlay, 3 Div. 270.

• Decision Date: 19 January 1939
• Docket Number: 3 Div. 270.
• Citation: 237 Ala. 116,185 So. 904
• Parties: LOUISVILLE & N. R. CO. v. FINLAY ET AL.
• Court: Alabama Supreme Court

185 So. 904

237 Ala. 116

LOUISVILLE & N. R. CO. v. FINLAY ET AL.

3 Div. 270.

Supreme Court of Alabama

January 19, 1939

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

Action for failure to deliver freight by J. E. Finlay and others partners, doing business as Consolidated Trading Company against the Louisville & Nashville Railroad Company. From a judgment for plaintiffs, defendant appeals.

Reversed and remanded.

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

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

GARDNER Justice.

On former appeal (Louisville & Nashville Railroad Co. v. Finlay, 233 Ala. 128, 170 So. 207), the record disclosed that the flood of 1929, which destroyed the car load of sugar here involved, was the highest known, and attention was directed to that fact. The holding was that the loss was the proximate result of the "act of God," and that plaintiff, upon whom rested the burden of proof under the decisions of the federal courts, by which this trial was to be guided, had not shown negligence on the part of the carrier, and that the defendant was due the affirmative charge.

Following remandment of the cause, and upon a retrial, plaintiff, placing stress upon the observation here, that the flood was unprecedented, offered one Baggett, eighty-nine years of age, as a witness whose testimony (though sharply contradicted by the witness Williamson, who was about the same age, and who remembered the Lincoln Flood) tended to show that during the period of the War Between the States, and in 1864, there was a flood at Brewton of equal or greater depth than that of 1929, which was called the Lincoln Flood. And the learned trial judge gave force to this proof in giving to the jury plaintiff's written charge to the effect that if they "believe from the evidence that the Lincoln Flood was greater than the 1929 flood," then the latter was not an unprecedented flood.

And it would appear, as a reasonable interpretation of this charge, that if such was the fact defendant's defense that the loss was the result of an "act of God" was not established. So interpreted, we think too great a stress is laid upon the word unprecedented. The rule of exemption from liability, if the loss is the result of an "act of God," is founded upon reason and justice that one should not be held responsible for that which could not have been reasonably anticipated. Or, as stated in Steele v. Townsend, 37 Ala. 247, 79 Am. Dec. 49, and quoted in the opinion on former appeal, 170 So. 209, the "intervention of such an extraordinary, violent and destructive agent, as by its very nature raises a presumption that no human means could resist its effect."

The expression "act of God" has been employed in various and broad senses by the authorities, such as an "extraordinary convulsion of nature or a direct visitation of the elements, against which the aids of science and skill are of no avail," or an "accident produced by physical causes which are irresistible," and other such expressions of like nature. 9 Amer.Jur. 849.

In Barnet v. New York Cent. & H. R. R. Co., 222 N.Y. 195, 118 N.E. 625, cited in our former opinion, the simple statement is made that "an extraordinary flood * * * is an act of God." [ page 627.] And the Virginia court in Southern Railway Co. v. Cohen Weenen & Co., 156 Va. 313, 157 S.E. 563, states that [page 564] " 'an act of God,' as the term is known to the law, is such an unusual and extraordinary manifestation of the forces of nature that it could not under normal conditions have been anticipated or expected." Like observation is found in our case of Law v. Gulf States Steel Co., 229 Ala. 305, 156 So. 835. But the Virginia court also, in the same opinion, points out that it need not be unprecedented, observing in this respect that "a building destroyed by an earthquake would be a building destroyed by an act of God. Should it be rebuilt and again destroyed, the second shock would be as much an act of God as the first, but it would not have been unprecedented. If it could not have been anticipated, or expected, under normal conditions, that is sufficient." And the authorities appear generally to be in accord upon this question. 9 Amer.Jur. 852.

The question of precedent, therefore, bears relation to the matter of reasonable anticipation, and opportunity to avert the consequences, and it is in that sense that the authorities have noted the "unprecedented" nature of the catastrophe. And some authorities have declined to give weight to proof showing a flood only once or twice in a generation. 4 R.C.L. 713; 11 L.R.A. 615, note; Ford v. Wabash R. Co., 318 Mo. 723, 300 S.W. 769.

But we are not here called upon to give full approval to this observation, and do not so intend to indicate by directing attention thereto. Indeed, we are inclined to the view it may be considered too extreme a statement. But that question to one side.

Here the period of time, as testified by the witness Baggett covers practically two generations, and if these authorities are to be followed the flood of 1864 should be considered too remote for all practical purposes. But no definite decision in this regard is essential. The remoteness of the time does not stand alone. The admissibility of this proof must rest also upon a showing that conditions were substantially the same (Southern Railway Co. v. Lefan, 195 Ala. 295, 70 So. 249); and we think Baggett's own testimony discloses such was not the case. True, the railroad was there, and a depot, though its location has been changed. And the place was Brewton, but not anything resembling the town as it now exists. The railroad has been "raised a little along for...