Missouri Pacific Railroad Co. v. Elmore & Stahl

• Decision Date: 15 May 1963
• Docket Number: No. A-9323,A-9323
• Citation: 368 S.W.2d 99
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, Petitioner, v. ELMORE & STAHL, Respondent.
• Court: Texas Supreme Court

Page 99

368 S.W.2d 99

MISSOURI PACIFIC RAILROAD COMPANY, Petitioner, v. ELMORE & STAHL, Respondent.

No. A-9323.

Supreme Court of Texas.

May 15, 1963.

Rehearing Denied June 12, 1963.

Sharpe & Hardy, Brownsville, for petitioner.

North, Blackmon & White, Corpus Christi, for respondent.

WALKER, Justice.

(1) On the only question presented by this appeal, we hold that after a shipper of inanimate perishables by common carrier railroad in interstate commerce has made a prima facie case of carrier liability, the carrier may not exonerate itself by showing that all transportation services were performed without negligence but must go further and establish that the loss or damage was caused by one of the four excepted perils recognized at common law.

Elmore & Stahl, respondent, brought this suit against Missouri Pacific Railroad Company, petitioner, to recover for alleged damage to three shipments of honeydew melons and one shipment of green peppers. The petition contains four separate counts, each relating to one of the shipments. Trial was to a jury and resulted in judgment on the verdict in respondent's favor on all four counts. The Court of Civil Appeals affirmed the judgment of the trial court as to Count I, but reversed such judgment and remanded the cause as to Counts II, III, and IV. 360 S.W.2d 839.

We are concerned here only with Count I. Respondent sought thereby to recover for damage to 640 crates of honeydew melons shipped in Car ART 35042 from Rio Grande City, Texas, to Chicago, Illinois. In response to the first three special issues, the jury found: (1) that at the time the bill of lading was signed the melons were in such condition that, based upon the orders given by the shipper to the carrier and the reasonable performance of such orders by the latter, they would have been reasonably expected to arrive at destination in good merchantable condition; (2) that upon arrival at destination the melons were in a worse condition than would reasonably have been anticipated on the basis of their condition at the time the bill of lading was signed, the orders given by the shipper to the carrier, and the reasonable performance of such orders by the carrier; and (3) that petitioner and its connecting carriers performed without negligence the transportation services as provided by the terms and conditions of the bill of lading and as instructed by the plaintiff, and in a reasonably prudent manner as to matters not covered by such bill of lading or instructions. The jury refused to find that the condition of the melons upon arrival in Chicago was due solely to inherent vice or to the carrying out of respondent's instructions for handling the shipment. 'Inherent vice' as defined in the charge included 'the inherent nature of the commodity which will cause it to deteriorate with a lapse of time.'

(2) Under the general common law rule, a shipper of goods by common carrier makes a prima facie case of carrier liability by showing that the shipment was in good condition when delivered to the carrier at place of origin and in damaged condition when delivered by the carrier at destination. The carrier may then escape responsibility for the damage only by showing that it was caused solely by one or more of four excepted perils: (1) an act of God; (2) the public enemy; (3) the fault of the shipper, or (4) the inherent nature of the goods themselves. Where the loss is not due to one of these specified causes, it is immaterial whether the carrier has exercised due care or was negligent. See Commodity Credit Corporation v. Norton, 3rd Cir., 167 F.2d 161; 13 C.J.S. Carriers § 71, p. 131. Some courts have held, however, that the general rule does not apply to shipments of livestock, and that the carrier may escape liability for damage thereto by showing the absence of negligence on its part. See Panhandle & S. F. Ry. Co. v. Wilson, Tex.Civ.App., 135 S.W.2d 1062 (wr. dis.).

No attack has been made on the jury findings in this case, and petitioner does not say that the damage to the melons was caused by one of the excepted perils mentioned above. It argues that carrier liability for damage to an interstate shipment of inanimate perishables is determined by the rule applicable to livestock, and that it has been exonerated by the jury's finding in response to Special Issue No. 3. Respondent insists and the Court of Civil Appeals held that the case is governed by the general common law rule. The judgment of the trial court was affirmed because petitioner did not bring itself within one of the recognized common law exceptions.

(3) According to American Jurisprudence, no distinction is made in most jurisdictions 'as respects the application of the common-law rule of liability for the safe transportation and delivery of inanimate property, on the basis of its nature or character as perishable or nonperishable. In some jurisdictions, however, it is held that the common-law rule of liability as an insurer does not apply in the case of perishable goods and that liability for the loss or injury thereof depends in all cases upon negligence.' 9 Am.Jur. Carriers § 693, p. 841. See also Annotation, 115 A.L.R. 1274. Perhaps the leading authority supporting the latter view is Southern Pac. Co. v. Itule, 51 Ariz. 25, 74 P.2d 38, 115 A.L.R. 1268. The rule there laid down was recognized as sound in Texas & Pac. Ry. Co. v. Empacadora de Ciudad Juarez, Tex.Civ.App., 309 S.W.2d 926 (wr. ref. n. r. e.). The parties here agree, however, that the liability of a carrier for damage to an interstate shipment is a matter of Federal law to be determined by the Federal statutes and decisions.

The general common law rule of carrier liability has long been recognized and applied by the Federal courts. See Galveston Wharf Co. v. Galveston, H. & S. A. Ry. Co., 285 U.S. 127, 52 S.Ct. 342, 76 L.Ed. 659; Commodity Credit Corp. v. Norton, supra; Compania De Vapores Insco, S. A. v. Missouri Pacific R. Co., 5th Cir., 232 F.2d 657; Lehigh Valley R. Co. v. State of Russia, 2nd Cir., 21 F.2d 396; Reider v. Thompson, 116 F.Supp. 279. In Schnell v. The Vallescura, 293 U.S. 296, 55 S.Ct. 194, 79 L.Ed. 373, which was a suit in admiralty to recover for damage resulting from decay of a shipment of onions, the Supreme Court of the United States discussed the rule which requires the carrier to establish that the loss was due to some excepted peril, and said:

'The reason for the rule is apparent. He is a bailee entrusted with the shipper's goods, with respect to the care and safe delivery of which the law imposes upon him an extraordinary duty. Discharge of the duty is peculiarly within his control. All the facts and circumstances upon which he may rely to relieve him of that duty are peculiarly within his knowledge and usually unknown to the shipper. In consequence, the law casts upon him the burden of the loss which he cannot explain or, explaining, bring within the exceptional case in which he is relieved from liability.'

(4) Petitioner directs our attention to the provisions of the Carmack Amendment that any common carrier shall be liable 'for any loss, damage, or injury * * * caused by it or by any common carrier * * * to which such property may be...