A. Polk & Son v. New Orleans & N.E. R. Co.

• Decision Date: 09 January 1939
• Docket Number: 33494
• Parties: A. POLK & SON v. NEW ORLEANS & N.E. R. Co
• Court: Mississippi Supreme Court

185 So. 554

184 Miss. 559

A. POLK & SON v. NEW ORLEANS & N.E. R. Co

No. 33494

Supreme Court of Mississippi, Division A

January 9, 1939

Suggestion Of Error Overruled February 6, 1939.

APPEAL from the circuit court of Forrest county HON.W. J. PACK Judge.

Action by A. Polk & Son against the New Orleans & Northeastern Railroad Company, for failure to deliver mule shipped and for overcharges in freight. From a judgment of the circuit court affirming a judgment of the county court for defendant plaintiff appeals. Affirmed.

Affirmed.

Travis & Travis, of Hattiesburg, for appellant.

The shipment involved was an interstate shipment and the Interstate Commerce Act, as then existing, governs such shipment. The Carmack Amendment to the Hepburn Act provided that the initial carrier upon an interstate shipment should issue a bill of lading and should be liable to the lawful holder thereof for any loss or damage caused by it or any carrier over whose line the goods passed. Act of June 29 1906, 34 Stat. 595, as amended February 28, 1920, 41 Stat. 491; U.S. C., tit. 49, sec. 20, par. 11 (1926). By amendment the delivering carrier was also made liable for the whole course of transportation. See Act of March 4, 1927, 44 Stat. 1448, as amended by Act of April 23, 1930, 46 Stat. 251; U.S. C., Supp. 5, tit. 49, sec. 20, par. 11 (1931).

The expression "caused by it" did not reduce the carrier's common law liability, which, with certain exceptions, was that of an insurer of the safe delivery of the goods.

Lehigh Valley R. R. v. Lysaght, 271 F. 906, 256 U.S. 704, 41 S.Ct. 625, 65 L.Ed. 1180.

It is well settled that the provision of the Carmack Amendment, imposing additional burdens and liabilities upon initial carriers in interstate shipments, have in no wise abrogated or changed the usual presumption that goods shown to have been delivered in good condition to the initial carrier remained in that condition to the time of their delivery by the last or delivering carrier, and that the injury or loss occurred while the goods were in the last carrier's possession.

Chicago & N.W. R. Co. v. Whitnack Produce Co., 66 L.Ed. 665.

The amendment to this act, however, making the delivering carrier liable for the whole course of transportation, places the initial and delivering carriers on the same basis as to liability, requiring the delivering carrier to account for the entire shipment. See U.S.C. Supp. 5, tit. 49, sec. 20, par. 11 (1931). This is not a hardship on either carrier, because the same act, section 20, paragraph 12, provides an adequate remedy for the innocent carrier.

Under ordinary circumstances, where, as here, the shipment was unaccompanied by a caretaker, as appears from the bill of lading and the evidence, there is no different rule as to liability for the loss of or damage to livestock from that which applies from the loss of or damage to other goods.

Brower v. Chicago R. I. & P. Ry., 252 N.W. 755.

The contract and the breach of it on the part of the appellee in the failure to deliver the mule in question was plead and proven. This, under the law, created a prima facie case for appellants. Appellee wholly failed to rebut the case thus made, and wholly failed to meet the burden east on it by the law to account for the handling of the mule in question and to exculpate itself and the other carriers involved from negligence in handling the mule. For these reasons, the judgment of the trial and said circuit courts were wholly unsupported by the law and the facts.

1 Roberts Federal Liabilities of Carriers (2 Ed.), section 384; Y. & M. V. R. R. Co. v. Bell, 71 So. 272, 111 Miss. 82; Chicago & N.W. Ry. Co. v. Whitnack Produce Co., 66 L.Ed. 665; Galveston, H. & S. A. R. Co. v. Wallace, 56 L.Ed. 516; Morrell v. Northern Pac. R. Co., 179 N.W. 922, 46 N.D. 535; G., C. & S. F. Ry. v. Taylor, 101 S.W.2d 642; Jordan v. G. & S. I. R. R. Co., 58 So. 595, 102 Miss. 21.

The judgment of the county and circuit courts should be reversed because the appellee failed to rebut appellants' prima facie case and failed to prove or offer to prove the allegations of its notice to the effect that the loss or death of the mule in question did not result from any inattention or negligence or failure of duty of any kind whatsoever on the part of the appellee, or any other carrier handling said animal.

Ragsdale-Lawhon Mule & Horse Co. v. Davis, 119 S.E. 428; Robinson, Norton & Co. v. Tuscaloosa Mills, 183 F. 966, 106 C. C. A. 306; Lilienthal's Tobacco v. U.S. 97 U.S. 273, 24 L.Ed. 901; Porter v. Still, 63 Miss. 361.

Our court in the case of Archer v. Helm, 70 Miss. 875, applied the rule, stating that whenever the defense rests upon a substantive fact, the determination of which adversely to the defendant is not necessary to the establishment by the plaintiff of his prima facie case, then the burden of proving that substantive fact is on the defendant.

Kyle & Williams v. Calmes, 1 H. 121.

Our court also held, in Kerr v. Freemen, 33 Miss. 292, that if a party's right is founded on a negative allegation, he must prove it.

Y. & M. V. R. Co. v. Levey & Sons, 141 Miss. 199.

It is very apparent that appellee has failed to allege an act of God. This is seen from the very nature of this defense. In general, a loss is of the class called act of God if directly produced solely by a manifestation of natural force, such as human forethought cannot anticipate or prevent, and where negligence did not contribute thereto, such as wind, rain, flood or lightning, etc.

Gilmore v. Carman, 9 Miss. 279.

See, also, Seaboard Air Line R. Co. v. Mullin, 70 Fla. 450, 70 So. 467, dealing with an interstate shipment under the Carmack Amendment, in which the court pointed out that the only acts of God that excuse common carriers for loss or injury to goods in transit are those operations of the forces of nature that could not have been anticipated and provided against, and that by their superhuman force unexpectedly injure or destroy goods in the custody or control of a common carrier.

Texas & G. S. S. Co. v. Parker, 263 F. 864, 253 U.S. 488, 64 L.Ed. 1026, 40 S.Ct. 485.

It is clearly seen that pneumonia in itself does not constitute an act of God within the meaning of these fundamental principles. It is a disease which man, through the exercise of reasonable care and attention can prevent, and can cure, and furthermore, is frequently caused by human agency, such as infected cars, feeding pens, etc., or exposure to excessive heat or extreme cold, etc. Appellee's notice under the general issue certainly did not allege any facts giving rise to this defense.

Y. & M. V. R. R. Co. v. Craig, 79 So. 102, 118 Miss. 299.

The appellee having at most alleged in its notice under the general issue a conclusion of the pleader as to the act of God defense, and simply alleging as a conclusion of the pleader that the animal in question died from pneumonia without settling out the facts as to such pneumonia, including where and when and under what circumstances it contracted such alleged pneumonia, and what measures, if any, were taken to prevent and to cure such alleged disease, said notice was wholly improper and insufficient and appellants' objections to the evidence on this score were well taken and should have been sustained, and all of appellee's evidence on this point is wholly inadmissible and incompetent to sustain the issue made by such notice. Our courts have held, under such circumstances, that the proper mode of procedure in such instances is to object to the evidence, and that is precisely what appellants did.

Jones Lbr. Co. v. Homochitto Development Co., 141 So. 589, 163 Miss. 305; Wren v. Hoffman, 41 Miss. 616.

Appellee not only failed to allege an act of God but wholly failed to prove that an act of God caused the loss complained of, and also wholly failed to prove that the negligence of the appellee and the negligence of the other carriers handling said shipment did not cause or contribute thereto.

Galveston, Harrisburg & San Antonio Ry. Co. v. Wallace, 56 L.Ed. 516; Y. & M. V. R. R. Co. v. Craig, 79 So. 102, 118 Miss. 299; Feld v. Columbia & G. Ry., 121 So. 172, 153 Miss. 601.

Heidelberg & Roberts, of Hattiesburg, for appellee.

In this discussion we want to be understood as to the facts before the court. There was a shipment of twenty-five horses and mules and possibly all but one were mules. Twenty-four of the twenty-five head were directed to A. Polk & Son. The other was shipped to a Mr. Thomas. There is no claim or contention that any of the other mules were injured or damaged in any kind of way. It is the undisputed testimony of the veterinarian that there were no bruises or abrasions on the body of the dead mule. The case in Mississippi which is nearest in point as to facts and the law applicable thereto, as compared with the case we now have before us, is that of Acy W. Allen Co. v. Mobile & Ohio R. R. Co., 102 Miss. 35, 58 So. 710.

In a case decided by our court where a mule shipped from Kansas City, Mo., to Centreville, Mississippi, was injured, resulting in a suit, our court, speaking through Judge TRULY, says: "The record is absolutely barren of any proof of negligence on the part of the railroad company. The injuries suffered by the animals were such as might naturally be inflicted by the animals themselves even with the most careful handling. The proof is insufficient to sustain the verdict." Y. & M. V. R. R. Co. v. Cox, 40 So. 547, 88 Miss. 508.

I. C. R. R. Co. v. Davis & Levy, 43 So. 674.

The plaintiff cannot make out a case by showing the delivery of livestock to the carrier in good condition and the failure of delivery, or the delivery of a part of the shipment in bad condition. They failed to make out a case and were not...