Southern Ry. Co. in Kentucky v. John T. Barbee & Co.

• Decision Date: 17 December 1920
• Citation: 226 S.W. 376,190 Ky. 63
• Parties: SOUTHERN RY. CO. IN KENTUCKY v. JOHN T. BARBEE & CO.
• Court: Kentucky Court of Appeals

226 S.W. 376

190 Ky. 63

SOUTHERN RY. CO. IN KENTUCKY v. JOHN T. BARBEE & CO.

Court of Appeals of Kentucky.

December 17, 1920

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Action by John T. Barbee & Co. against the Southern Railway Company in Kentucky. From a judgment for plaintiff, defendant appeals. Affirmed.

Humphrey Crawford, Middleton & Humphrey and Louis Seelbach, Jr., all of Louisville, for appellant.

Lawrence Leopold, of Louisville, for appellee.

SAMPSON J.

On June 27, 1917, Barbee & Co. shipped a consignment of 39 packages of whisky from Milner, Ky. near Louisville, to a point in Texas, and on the next day shipped two barrels of whisky to another point in the state of Texas, in each case taking a bill of lading. Neither of the consignments were delivered by the railway company, and this action was commenced by Barbee & Co. against the Southern Railway Company in Kentucky initial carrier, to recover the value of the whisky alleged to be $634.68, averring that the railway company had wrongfully and negligently failed and refused to safely transport or caused to be transported said whisky from Milner, Ky. to the destination in the state of Texas, and then and there safely deliver the same to the consignee, as it had agreed in its bill of lading to do, and had wrongfully failed to account to Barbee & Co., or to any one for the plaintiffs, for said whisky, or any part thereof, and had converted the same to its own use. The answer of the railway company traversed the material allegations of the petition. The answer further averred that the bill of lading, the contract between the parties, expressly provided that neither the defendant railway company nor any of its connecting carriers transporting said whisky should be liable for any loss, damage, or injury to same resulting from riots or consequences thereof; that while the said shipment of whisky was in the ordinary course of transportation from Milner, Ky to its destination in Texas, it was destroyed in and by virtue of a riot occurring in East St. Louis, Ill.; that in said riot and as a direct result thereof the said whisky was set on fire, and in this manner was burned and destroyed without negligence of any kind on the part of the defendant railway company; and, further, that the railway company had exercised all possible care to safely transport said whisky and to deliver same to the consignee thereof, and that its destruction was without fault or negligence, or any breach of duty, on the part of the railway company, but came about through causes entirely beyond the control of the defendant. A demurrer to the affirmative part of the answer was overruled, whereupon Barbee & Co. filed reply, in which, after traversing the material parts of the answer, it was averred that the railway company negligently delayed the transportation of the whisky after it was delivered to it at Milner, and because of such negligence on the part of the railway company the said whisky failed to arrive in East St. Louis prior to July 2d, the date of its destruction by the riot, if it was so destroyed, and that the delay was caused by negligence of the railway company, and but for said negligence on its part in failing to sooner transport said whisky so that the same could arrive in East St. Louis and leave East St. Louis prior to July 2, 1917, the said whisky would not have become subject to the riot and fire ensuing therefrom; and it was further averred that the delay in transporting said whisky was a proximate cause and reason for its destruction, and the railway company is liable for said negligence. A general demurrer was sustained to this paragraph of the reply. It was further pleaded by the reply that on July 1, 1917, mobs formed in the city of East St. Louis began committing various excesses and acts of violence and depredations; that hundreds of men began rioting in East St. Louis on July 1, 1917, and in defiance of the public authorities, and that these facts were given great notoriety, and the public had notice thereof, and that the agents and employés of the railway company in charge of the shipment of whisky knew, or by the exercise of ordinary care could and should have known, that the said mobs were committing said excesses and acts of violence and depredations in that city on July 1, 1917; that the mobs had not dispersed on July 2d, and that on that day the mobs were committing acts such as endangered the safety of the consignment of whisky; that the defendant railway company negligently and in disregard of the safety of the goods permitted and caused the same to be carried over its line of railroad from the city of Louisville into its yards in the city of East St. Louis while the riots were in progress, and to remain in East St. Louis while the riots were in progress, and that time for many hours after the arrival of the consignment in that city, and in doing so the railway company was guilty of such negligence as to make it liable for any damage resulting from any acts committed by said mob or said rioters on that date, including the burning of the whisky. A general demurrer to this paragraph of the answer was overruled.

The rejoinder merely traversed the affirmative allegations of the reply. A trial before a jury resulted in a verdict for Barbee & Co. for the full amount claimed, and the railway company appeals.

The parties filed a stipulation of facts, which was read as evidence to the jury, and is as follows:

"(1) On June 27, 1917, the plaintiff John T. Barbee & Co. delivered to the defendant Southern Railway Company in Kentucky, at Milner, Ky. 38 cases and 1 box

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