Southern Ry. Co v. Cohen Weenen &. Co

• Decision Date: 19 March 1931
• Citation: 157 S.E. 563
• Court: Virginia Supreme Court
• Parties: SOUTHERN RY. CO. v. COHEN WEENEN &. CO.

157 S.E. 563

SOUTHERN RY. CO.

v.COHEN WEENEN &. CO.

Supreme Court of Appeals of Virginia.

March 19, 1931.

[Ed. Note.—For other definitions of "Act of God, " see Words and Phrases.]

It did not appear that agent was told that rain fell heavily for a short time and in sufficient quantities to collect in pools upon the floor, and agent stated to railroad that, from outside and from railroad telling him that very litle rain fell on tobacco, he doubted whether it was hurt, but that he could not take responsibility.

Error to Circuit Court of City of Norfolk.

Proceeding by motion for judgment by Cohen Weenen & Co., for the use and benefit of the Northern Assurance Company, Limited against the Southern Railway Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Argued before CAMPBELL, HOLT, EPES, HUDGINS, and BROWNING, JJ.

Thomas B. Gay and Wirt P. Marks, Jr., both of Richmond, and James H. Corbitt, of Suffolk, for plaintiff in error.

Baird, White & Lanning, of Norfolk, for defendant in error.

HOLT, J.

This is a proceeding by motion for judgment instituted in the circuit court of the city of Norfolk, Va., by the defendant in error, Cohen Weenen & Co., which sues for the use and benefit of the Northern Assurance Company, Limited, its assignee and subrogee, hereinafter called the plaintiff, as it was the plaintiff below, against the plaintiff in error, Southern Railway Company, hereinafter called the defendant, as it was the defendant below, in which proceeding a judgment was entered by which it was adjudged that the plaintiff recover against the defendant the sum of $2,250, with interest thereon from the 16th day of June, 1925, until paid,.and its costs in the case expended. The writ of error allowed is from that judgment.

This statement of facts is taken from the brief filed on behalf of railway company:

"On the 11th day of June, 1925, 115 hogsheads of leaf tobacco, containing 133, 178 pounds, were delivered to the Southern Railway Company at Danville, Virginia, by Dibrell Brothers, Inc., consigned to 'International Mercantile Marine Co., % Virginia Forwarding Corp'n.' Norfolk, Virginia, 'For Export, ' 'booked for the SS. "Novian" contract 2893 sailing June 20th, 1925'; for which shipment a Uniform Domestic Straight Bill of Lading, dated June 11, 1925, was issued and delivered to Dibrell Brothers, Inc.

"On the 15th day of June, 1925, the defendant mailed notice to the International Mercantile Marine Co., % Virginia Forwarding Corporation, showing that the goods had arrived at Norfolk on that day.

"On the afternoon of the following day, that is, the 16th day of June, 1925, while the tobacco was in the warehouse of the Railway Company at Pinner's Point, Norfolk, Virginia, an unusual, extraordinary and unexpected windstorm burst upon the warehouse and blew the roof from the end of the warehouse next towards the Elizabeth river. The windstorm was accompanied by a downpour of rain, which fell upon the hogsheads of tobacco and wet them to some extent. The rain lasted only a short time, and immediately after the rain the Railway Company caused some holes to be bored in the floor to let the water runoff and caused the tobacco to be moved from that part of the warehouse which had been unroofed and stored in a portion of the warehouse that was in perfect condition."

It is conceded that the judgment represents the amount of damage suffered. No complaint was made of the form of action or of the plaintiff's right to sue.

After verdict the defendant, by counsel, moved the court to set that finding aside as contrary to the law and the evidence, and at the same time set out those matters which it relied upon to sustain that motion. They are:

First, that the damage was occasioned by an "act of God."

Second, that the railroad had no facilities for uncoopering hogsheads of tobacco, or for drying the tobacco out, and that the tobacco was enroute for London and might be called for any day, and had to be held to await that call.

Third, that the carrier had no means of knowing that the rain had penetrated through the wooden casings to the tobacco.

Fourth, that it called in an agent of the shipper for advice, showed the tobacco to him, told him what had occurred, and that he made no request for uncoopering.

Fifth, it was said that, if the tobacco had been uncoopered and found to be undamaged, the railroad would have been liable; and in conclusion it was said that in any event the cost which would have followed uncoopering and redrying should have been deducted from the gross damage suffered.

At the trial two instructions were given. They are:

"A. The defense in this case is that the damage which it has been agreed the plaintiff suffered was caused by an act of God. The burden of proof is upon the defendant to show the damage was so caused, and no loss can be considered due to an act of God unless it is brought about without the intervention of any human agency whatsoever. Even if an act of God occurred it was still the duty of the defendant to use due and reasonable diligence to save the goods intrusted to it, and if the jury believe that the defendant failed to perform this duty and so occasioned the plaintiff a loss it is liable therefor."

"B. The court instructs the jury if they believe from the evidence that the roof of the warehouse was blown off by an unusual, extraordinary and unexpected storm of wind, followed by a downpour of rain which wet the tobacco in question and caused the damage, then the defendant company would not be liable for damages and you should find your verdict for the defendant, provided you should believe from the evidence that after the tobacco had been subject to rain, the defendant used such care and diligence as a

reasonably prudent person would have taken to care for the tobacco."

No exceptions were taken, and so they are the law of this case so far as they purport to speak.

Judge Crump, in C. G. Blake Co. v. Smith & Son, 147 Va. 960, 133 S. E. 685, 691, said: The last instruction above transcribed, that drawn by the court, was not objected to by the plaintiff in error, and therefore became the law of the case."

In Michie's New Digest, vol. 1, p. 399, is this statement supported by many citations: "No exceptions having been taken to the instructions, neither party will be allowed to question in the court of appeals the correctness of the law laid down by the court as applicable to the evidence in the cause."

See, also, Coopersmith v. Mahoney, 150 Va. 685, 143 S. E. 313, and Rule XXII of the rules of this court.

No instructions were refused, and so this phase of this case is no longer open for discussion.

Was this tobacco damaged by "an act of God?"

" 'An act of God, ' as the term is known to the law, is such an unusual and extraordinary manifestation of the forces of nature that it could not under normal conditions have been anticipated or expected." Ellerson Floral Co. v. C. & O. Ry. Co., 149 Va. 810, 141 S. E. 834, 835.

It does not have to be unprecedented. A...