National Rice Milling Co. v. New Orleans & N.E.R. Co.

• Decision Date: 22 April 1912
• Docket Number: 18,579
• Citation: 132 La. 615,61 So. 708
• Parties: NATIONAL RICE MILLING CO. v. NEW ORLEANS & N.E.R. CO. et al
• Court: Louisiana Supreme Court

61 So. 708

132 La. 615

NATIONAL RICE MILLING CO. v. NEW ORLEANS & N.E.R. CO. et al

No. 18,579

Supreme Court of Louisiana

April 22, 1912

On Rehearing, April 14, 1913. Rehearing Considered.

Appeal from Civil District Court, Parish of Orleans; George H Theard, Judge.

Action by the National Rice Milling Company against the New Orleans & Northeastern Railroad Company and another. From judgment for plaintiff, defendants appeal. Modified and affirmed on rehearing.

Hall Monroe & Lemann, of New Orleans, for appellants.

Gustave Lemle, W. Catesby Jones, and Arthur A. Moreno, all of New Orleans, for appellee.

MONROE J. BREAUX, C.J., dissents.

OPINION

MONROE J.

Statement of the Case.

Plaintiff alleges that the defendants named in the caption are indebted to it, in solido, in the sum of $ 2,487.50, being the value of two car loads of rice, shipped from New Orleans on August 21 and 22, 1908, consigned to Charleston, S.C., and destroyed, on or about August 26th, at Hamburg, S.C., while in possession of the second-named company; the allegation being that:

"The destruction of said rice was due solely to the negligence, fault, and want of care of the said Southern Railway, its agents and employes."

The suit is brought on the bills of lading, which are made part of the petition, and which provide, among other things, that the initial carrier, by which they were issued, shall not be liable for losses occurring beyond the limits of its own lines. Plaintiff, however, alleges, in that connection, that the act of Congress of June 29, 1906, declares that the initial carrier may be held liable for the safe delivery of property intrusted to it under contracts for through shipment, any stipulations in the bills of lading to the contrary notwithstanding. Otherwise than that, the suit is in affirmance of the contracts represented by the bills.

The New Orleans & Northeastern Railroad Company, for answer, denies that the petition discloses a cause of action.

The Southern Railway Company admits that it received the cars and alleges that it --

"conveyed them safely to Hamburg, S.C., where there was an extraordinary and unprecedented flood, which could not have been anticipated, and which sudden flood reached a car load of lime, properly placed, and, setting fire to the same, caused the destruction of twenty-five cars, among which [were] the two cars in question; that this happened without any contributory negligence on its part, and that said sudden and unprecedented flood, which could not have been anticipated, with the resultant fire, was the proximate cause of the destruction of plaintiff's property. * * * Respondent avers that, under the limitations and exemptions in the bill of lading sued upon, it is not responsible."

One of the limitations and exemptions thus referred to reads as follows:

"Neither this company nor any of its connecting carriers shall be liable for any damage to, or destruction of, said property by fire, unless such damage or destruction shall result, directly and exclusively, from their negligence or that of their employes, and unless such negligence shall be affirmatively established by the owner of said property."

Plaintiff called one witness, by whom it was shown that the rice in question was worth $ 2,326.50. Defendant examined 23 witnesses under commissions, and from their testimony it appears that the cars containing the rice were received at Augusta, Ga., on August 25th, and at 1 o'clock on the morning of the 26th were sent across the Savannah river to the old Hamburg yard of the Southern Railway Company, on the South Carolina side, where a train was made up for Charleston, in which the two cars, together with a car of lime, were included; that thereafter, in consequence of a rise in the river, which was not only unprecedented with respect to the volume of water, but more particularly with respect to its suddenness and the lack of warning, the Hamburg yard was inundated to a depth never before known, and the water, coming in contact with the lime, started a fire, which, before it could be reached and extinguished, destroyed most of the cars constituting the train, including those containing the rice. The cause which produced the results thus stated is shown to have been a downpour of rain in that region of South Carolina which is traversed by Rocky river and its tributaries, from Anderson down to Calhoun Falls, where that river empties itself into the Savannah. Some of the witnesses speak of this rainfall as a cloudburst, and they say, generally, that it rained harder, that the streams rose higher and more rapidly, and that the destruction was greater, than was ever before known. J. R. Anderson, superintendent of the Blue Ridge Railway, was at Anderson, and says that it began to rain hard at about 7 o'clock on the evening of August 24th, and continued, in a perfect downpour, until about noon of the following day, and further as follows:

"I think that this rain was the hardest that I have ever seen fall for such a period of time. * * * The waters of all those streams were higher than I have ever known before, and the rise was an exceptionally rapid one. * * * Great volumes [of water] were suddenly and unexpectedly thrown in said [Savannah] river."

J. A. McElroy, farmer and merchant at Sandy Springs, in Anderson county:

"During the night of the 24th, it began to rain very hard, and rained in a continuous downpour until about 2 o'clock p.m. of the 25th. I suppose this unusually hard rain was what is commonly called a cloudburst. * * * I have never seen as hard a rain. * * * [The streams] were higher than they had ever been known to be before. * * * I can also state that the rise of the waters in those creeks was a great deal swifter and more unexpected than they have ever been before."

L. E. Campbell, farmer in Anderson county, aged 65:

"The rain fell especially hard on August 25th; in fact, so incessantly that I could not get out of the house to vote. Not a vote was cast in my precinct on account of the high water. * * * The water of Rocky river, at that point, rose 10 to 12 feet higher than it ever rose before. The high water in August, 1908, exceeded all previous freshets in that vicinity. * * * The rise was much more rapid than I have ever known it before. The flood was more extensive and did a great deal more damage than any other previous flood."

P. C. Martin, farmer and merchant, Calhoun Falls, aged 69:

"The rains were the heaviest I ever experienced, practically amounting to a cloudburst. * * * The Rocky river rose to a height to which it has never been before, and the rise was a great deal quicker and more sudden than it has ever been before. The whole country about was inundated. * * * The flood was the most destructive that was ever known in the history of South Carolina. * * * In August, 1908, all of these rivers were suddenly flooded by an unexpected and unprecedented fall of rain, as a result of which they rose to heights greater than they had ever been before. This immense volume of water was precipitated upon Augusta, Ga., and Hamburg, S.C., practically without warning to the people in that section."

P. J. Pfeiffer, farmer, constable, and United States weather observer, at Calhoun Falls, aged 45:

"The rainfall on the morning of August 25th was the hardest and heaviest rainfall that I have ever seen. The streams and rivers * * * were higher than I have ever seen them in my life. The water rose more rapidly than I have ever seen. At one time, it rose 4 inches in 10 minutes. * * * In August, 1908, the greatest volume of water that has ever fallen upon the watershed around Calhoun Falls poured into the Savannah river with great suddenness and caused a most unusually rapid rise in the Savannah river."

Granville Beale, farmer and dealer in real estate, Calhoun Falls, aged 56:

"The rains which fell were really torrential. They raised the Savannah river to a height at which I have never seen it before. * * * I own an island in the Savannah river, just below the mouth of Rocky river. This island comprised about 310 acres of land, and its surface was about 10 feet above the level of the Savannah river. The great volume of water which poured out of Rocky river into the Savannah river, and united with the already swollen waters of the latter river, washed away about 250 acres of the island above referred to. The rainfall at that time was greater than I have ever known it."

J. C. Parks, railroad agent and United States river gauger, at Woodlawn, about 17 miles above Augusta, testifies that at 6 o'clock p.m. on August 25th the average depth of water in the Savannah river, at that point, was about 6 feet, and that, on the morning of the 26th, at 6 o'clock --

"the river had risen to a height of 25 or 30 feet and was still rising very rapidly. By 2 o'clock on the same day -- the 26th -- the river reached a maximum height of 40 feet. * * * This rise * * * was by far the most rapid that I have ever known. * * * I do not believe that the flood of August 26, 1908, could have been anticipated. It came, as a sudden and unexpected deluge, from the country higher up the river, without any warning whatever."

W. R. Parks, planter, residing near Parksville, within 2 miles of the river, testifies that, to the best of his knowledge and belief, the river was 6 feet higher, in that vicinity, than during the freshet of 1888.

W. F. Taylor, United States mail delivery clerk, residing at Woodlawn, testifies that the conditions were such as to give people notice of the flood in 1888, but that in 1908 the flood descended on them suddenly, unexpectedly, and without warning, from higher up the country, and the river rose more rapidly than in 1888.

J. R Blackwell, magistrate of ...