Southeastern Express Co. v. Namie

• Decision Date: 23 May 1938
• Docket Number: 33068
• Citation: Southeastern Express Co. v. Namie, 182 Miss. 447, 181 So. 515 (Miss. 1938)
• Court: Mississippi Supreme Court
• Parties: SOUTHEASTERN EXPRESS CO. v. NAMIE

181 So. 515

182 Miss. 447

SOUTHEASTERN EXPRESS CO. v. NAMIE

No. 33068

Supreme Court of Mississippi

May 23, 1938

Suggestion Of Error Overruled June 20, 1938.

(In Banc.)

1 CARRIERS.

The liability of a common carrier of inanimate freight is practically that of an insurer against loss or injury, except as to loss or injury caused by act of God, by public authorities, public enemy, inherent nature of goods, or by act or default of owner or shipper.

2 CARRIERS.

In action against common carrier for loss of, or injury to goods in transit, carrier has burden of pleading and proving that loss or injury was caused by act of God, by public authorities, public enemy, inherent nature or quality of goods, or by act or default of owner or shipper.

3. CARRIERS.

The plaintiff in action for loss or injury to shipment of inanimate freight or express is not required to allege or prove negligence on part of carrier.

4. JUDGMENT.

A plaintiff who has alleged and proved facts essential to a recovery is entitled to judgment.

5. PLEADING.

A plaintiff is not required to allege or prove more than is essential to a recovery, and any unnecessary allegations will be treated as surplusage.

6. JUDGMENT.

A recovery may be had in contract where it is supported by allegations and proof, notwithstanding that declaration sounded in tort (Code 1930, section 521).

7. PLEADING.

Facts not essential to plaintiff's case need not be alleged or proved, but if they are alleged, failure of proof thereof will not affect right of recovery.

8. PLEADING.

Facts not essential to plaintiff's case when alleged and attempted to be proved must be proved, even though it would otherwise have been unnecessary either to allege or to prove them.

9. CARRIERS.

A shipper suing carrier for damages to shipment of skunk pelts in transit was required only to prove that goods were delivered to carrier properly packed and in good condition and that they were delivered by carrier to consignee in a worthless or damaged condition, and fact that shipper failed to prove unnecessary allegations of carrier's negligence in handling shipment did not preclude shipper from recovering.

10. APPEAL AND ERROR.

Where carrier sued for damage to shipment of skunk pelts or furs in transit claimed that damage was caused by inherent vices in that maggots were present in fursacks, reviewing court was required to accept preponderant testimony of witnesses who were believed by jury and who testified that maggots do not damage furs.

11. CARRIERS.

Where damage to shipment of skunk pelts in transit had been sufficiently proved as to amount, carrier was liable for damage, notwithstanding that cause of damage could not be dependably ascertained from transcript.

HON. HARVEY McGEHEE, Judge.

APPEAL from the circuit court of Lamar county, HON. HARVEY MCGEHEE, Judge.

Suit by C. F. Namie against the Southeastern Express Company to recover for damages to a shipment of skunk pelts or furs while in transit. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Heidelberg & Roberts, of Hattiesburg, for appellant.

It is error to grant an instruction which has no substantial support in evidence. If any material part of an instruction has no substantial support in evidence, it is an erroneous instruction and a request therefor is properly refused.

Interstate Life & Acc. Co. v. Cooley, 150 Miss. 502, 117 So. 267; Burnley v. Mullins, 38 So. 635, 86 Miss. 441; Mobile, Jackson & Kansas City R. R. Co. v. Jackson, 46 So. 142, 92 Miss. 517; A. & V. R. R. Co. v. Baldwin, 52 So. 358, 96 Miss. 52; Davis v. Heck, 79 So. 59, 118 Miss. 74; Williams v. City of Gulfport, 163 Miss. 334, 141 So. 288.

There is no evidence to support negligent handling of the shipment by the Express Company. The record is full of positive testimony that the shipment was handled in the same manner as shipments of like kind through the years theretofore.

Under the facts in this case, the trial court should have directed the jury to find for the defendant. In this case the plaintiff predicated his suit upon the contention that the Express Company had negligently permitted the furs in question to come in contact with an excessive amount of heat. A great mass of the testimony furnished in behalf of the Express Company was not rebutted in any way whatsoever. This testimony was clearly to the effect that the furs were not exposed to heat while in the possession of the carrier.

Pennsylvania Ry. Co. v. Chamberlain, 53 S.Ct. 391.

We feel that this court in applying the federal rule will hold that the desired inference of negligence sought to be established by the plaintiff was precluded by the positive and uncontradicted evidence of unimpeached witnesses, consistent with the facts actually proved.

With respect to perishable goods which themselves contain the elements of destruction governing their loss or deterioration, the carrier is not an insurer, and is no more liable for destruction or injury resulting solely from the inherent infirmity in the goods than for loss entailed solely by an act of God, or the public enemy, or the carelessness of the shipper; thus the carrier is not liable for loss or injury due solely to such causes as fermentation, decay, spontaneous combustion, effervescence, putrefaction or explosion. The measure of the carrier's duty is to exercise reasonable care and diligence to protect the goods from loss or injury while in its custody, and it is liable for only such deterioration as is attributable to its negligence.

10 C. J. 121-122, par. 148; Nelson v. Woodruff, 17 L.Ed. 97; Adams Express Co. v. Croninger, 57 L.Ed. 314; Chase & Co. v. Atlantic Coast Line R. R. Co., 115 So. 186.

It is the general rule that where negligence is alleged and the pleader sees fit to specify the acts of negligence, he will be confined in his proofs within the limits of his specification. The plaintiff furnished no testimony whatsoever to support the material allegations of his declaration.

Gulf Coast Transportation Co. v. Howell, 70 So. 567.

The measure of the carrier's duty is to use reasonable care and diligence to protect the goods from loss or injury while in its custody, and it is liable for only such deterioration as is attributable to its negligence.

Mobile, Jackson & Kansas City R. R. Co. v. T. J. Phillips & Co., 103 Miss. 536, 60 So. 572; 10 C. J., page 120; Allen Co. v. M. & O. R. R. Co., 102 Miss. 35, 58 So. 710; So. Ry. Co. v. Prescott, 60 L.Ed. 836; Y. & M. V. Co. v. Delta Groc. & Cotton Co., 98 So. 777, 134 Miss. 846.

We are not unmindful of the fact that the defense interposed by appellant respecting the inherent nature of the goods, the act of God, and the like, constitutes an affirmative defense. We feel that there was no need on behalf of appellant to present an affirmative defense for the reason that appellee failed to prove the charges of negligence set forth in the declaration and was therefore not entitled to recover. However, the carrier not only furnished testimony which was uncontradicted wherein negligence was negatived and it was shown that the shipment was handled properly throughout, but also furnished testimony in support of notice under general issue wherein it was charged that the hides were infested with blow flies before shipment and that the weather conditions, inherent nature of the goods and spontaneous combustion resulted in the damages, if any, complained of.

10 C. J., page 121.

The verdict of this case is based upon conjecture alone as against the Southeastern Express Company, and being so based, we urge that it must not stand.

Tyson v. Utterback, 122 So. 496, 154 Miss. 381; Burnside v. Gulf Refining Co., 148 So. 219, 166 Miss. 460; Y. & M. V. R. Co. v. Greene, 147 So. 333, 167 Miss. 137; Hercules Powder Co. v. Calco, 138 So. 583, 161 Miss. 795; Columbus & Greenville R. R. Co. v. Coleman, 160 So. 277, 172 Miss. 514; Cudahy Packing Co. v. McPhail, 155 So. 163, 170 Miss. 508.

Where acts of negligence are charged the plaintiff is required to make proof thereof, and he must stand or fall upon the proof that he makes in support of the case presented to the court by the pleadings.

Stone v. Chicago, etc., R. R. Co., 128 N.W. 354; Willison v. Nor. Pacific R. R. Co., 127 N.W. 4; Farr v. Adams Express Co., 75 S.W. 183; Ficklin v. Wabash R. R. Co., 92 S.W. 347; Gulf Railroad Co. v. Wright, 87 S.W. 191; Texas, et al., R. R. Co. v. Stewart, 96 S.W. 106; Moore on Facts, pages 361, 530, 783, 863, and 1236.

We desire to call attention to certain additional cases, some of which are not livestock cases, wherein it has been held that one must stand or fall upon his pleadings, and that if he fails to support the charges of negligence made in his declaration he cannot recover.

New England Fruit & Produce Co. v. Hines, 116 A. 243, 97 Conn. 225; Bromberg v. Chicago R. I. & P. R. R. Co., 190 N.W. 955, 194 Ia. 337; American Ry. Express Co. v. H. Rouw Co., 48 S.W.2d 220, 185 Ark. 526; Ozark Fruit Growers Assn. v. St. Louis-San Francisco R. R. Co., 46 S.W.2d 895, 226 Mo.App. 222; Myers v. Texas Land & Development Co., 282 S.W. 919; Gulf & C. Ry. Co. v. Ferguson, 52 So. 797, 97 Miss. 266; Gulf Coast Transportation Co. v. Howell, 70 So. 567, L.R.A. 1916D 974.

Plaintiff on appeal is bound by case made in his declaration, since he cannot make out one case in his pleadings and another by his proof.

Ozen v. Sperier, 150 Miss. 458, 117 So. 117; U. S. Cas. Co. v. Malone, 88 So. 709; Estes v. Memphis, etc., Ry. Co., 152 Miss. 814, 119 So. 199; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Griffith's Chancery Practice, 621, sees. 564 and 565; Miss. P. & L. Co. v. Pitts, 179 So. 363.

The liability of a carrier is limited to loss, damage or injury to...