Swiney v. American Express Co.

• Decision Date: 10 March 1908
• Citation: 115 N.W. 212,144 Iowa 342
• Parties: C. H. SWINEY v. AMERICAN EXPRESS COMPANY, Appellant
• Court: Iowa Supreme Court

115 N.W. 212

144 Iowa 342

C. H. SWINEY v. AMERICAN EXPRESS COMPANY, Appellant

Supreme Court of Iowa, Des Moines

March 10, 1908

REHEARING GRANTED SATURDAY, DECEMBER 19, 1908.

Appeal from Webster District Court.--HON. J. H. RICHARD, Judge.

SUPPLEMENTAL OPINION THURSDAY, OCTOBER 28, 1909.

ACTION at law for the value of a hog alleged to have been injured while in the possession of the defendant as a common carrier. Judgment for plaintiff, and defendant appeals.

Affirmed.

P. F Nugent, for appellant.

Kelleher & O'Connor and W. S. Kenyon, for appellee.

OPINION

WEAVER, J.

The appellant is a corporation or association engaged in the business of carrying goods and freight for hire in Iowa, Minnesota, Wisconsin, Illinois, and other states, and the plaintiff is a breeder and dealer in Poland China hogs at Webster City, Iowa. In the year 1903 the plaintiff owned a valuable Poland China sow, which he exhibited at the state fairs of Iowa, Minnesota, and Wisconsin. At the close of the exhibition at Milwaukee, Wis., plaintiff's agent in charge of the animal placed it in a crate and delivered it to defendant's agent in that city to be carried to Webster City, Iowa. In his petition and amendment thereto the plaintiff alleges, in substance, that defendant, having transported the hog to Webster City, delivered it to him in a damaged and injured condition, which terminated in its death soon thereafter. He further alleges that said injuries were occasioned by the act of the defendant and its employees in roughly handling the animal and breaking the crate in which it was inclosed, and in placing it in another in which there were protruding spikes, and by letting the crate with said animal fall to the ground. The allegations as to the injury to the animal from spikes protruding through the crate and by the falling of the crate to the ground were withdrawn from the jury by the trial court. The defendant admits the receipt and transportation of the hog, but denies any fault on account of its alleged damaged or injured condition, and denies all liability therefor. Other special defenses were pleaded which are not urged on appeal, and we need make no further reference thereto. The errors assigned and points made in the brief of appellant are too numerous to admit of their separate consideration in this opinion, but the principal propositions about which the others naturally group themselves may be stated as follows:

I. That the evidence is insufficient to support a finding for the plaintiff, and verdict should have been directed in defendant's favor. This contention is grounded upon the assumption that there is no evidence that the hog was injured in transit, and that defendant was in no manner negligent with respect to the care or treatment of the animal while in its hands, and especially that there is a failure of proof as to the specific acts and omissions charged in the petition. The position taken by counsel seems to involve the thought that to sustain a recovery in cases of this character the shipper is bound to support his claim by an affirmative showing of negligence in the carrier. This, we think is not the rule which has heretofore been recognized and applied by this court, and is opposed to the prevailing doctrine approved by the courts of this country in general. The ordinary liability of a common carrier is that of an insurer against all risks incident to transportation, save such as result from the act of God or public enemy; and proof of the delivery of the goods to the carrier in sound condition and of their redelivery at the end of the route in damaged condition makes a sufficient case to sustain a recovery of damages by the shipper. Winne v. Railroad Co., 31 Iowa 583; Bennett v. Express Co., 83 Me. 236, (22 A. 159, 13 L. R. A. 33, 23 Am. St. Rep. 774.) It has sometimes been suggested that this rule has no application to the shipment of live stock, but the great weight of authority is against the recognition of such exception. McCoy v. Railroad Co., 44 Iowa 424; Kinnick v. Railroad Co., 69 Iowa 665. There is however, a well-recognized modification of the carrier's liability which, while applicable to the shipment of goods in general, finds its most frequent illustration in the shipment of live animals. This feature of the rule may be stated as follows: That while a carrier, whether negligent or otherwise, is generally liable as an insurer for loss and damage occurring to goods while in its hands for transportation, it is not liable in the absence of negligence on its part for any loss or damage caused by or resulting from the perishability or inherent weakness or vice in the subject of shipment. For instance, if fruit which is carried with due speed and proper care decays, or if the shipment be of live stock, and it die of disease or inherent weakness, or become sick without fault of the carrier, or receive injury through its own vicious propensities, in such case the law very properly places the loss upon the owner, and not upon the carrier. Blower v. Railroad Co., L. R. 7 Car. & P. 662; Kinnick v. Railroad Co., 69 Iowa 665; Betts v. Railroad Co., 92 Iowa 343. But this principle is not to be so extended as to relieve the carrier from the duty to take notice of the ordinary weakness, character, and propensities of domestic animals, and to make such provision against loss or injury therefrom as may reasonably be done in furnishing the means of transportation and providing for the protection of the property during transit. Kinnick v. Railroad Co., supra; Betts v. Railroad, supra. It logically follows from these rules, and from the fact that ordinarily a carrier alone has knowledge of the manner in which the shipment has been forwarded and cared for, that where property whether dead freight or live stock is found to have suffered loss or damage in transportation, especially where the shipment is not accompanied by the shipper, or a caretaker in his service, the burden is upon such carrier to show facts which relieve it from liability. It is so held in several of the cases already cited. In McCoy v. Railroad Co., supra, the claim sued upon was for injury to cattle in course of shipment over the defendant's road. On the trial, defendant insisted it could only be held liable upon an affirmative showing of negligence, but the court instructed the jury that proof by plaintiff that his cattle had been injured in the course of shipment was sufficient to cast upon the defendant the burden of showing facts establishing its freedom from liability. That instruction was approved by this court A somewhat similar instruction, which placed the burden on the defendant, but seemed to hold that the carrier could exculpate itself from liability for injury to a shipment of live animals by proof of reasonable care on its part, was held in Chapin v. Railroad Co., 79 Iowa 582, to be more favorable to the defendant than it was entitled to. See, also, as to the burden of proof in such cases Brennison v. Railroad Co., 100 Minn. 102, 110 N.W. 362; Elam v. Railroad Co. (Mo. App.), 93 S.W. 851, 852; Boehl v. Railroad Co., 44 Minn. 191, (46 N.W. 333, 334); Dow v. Packet Co., 84 Me. 490, (24 A. 945); Railroad Co. v. Wynn, 88 Tenn. 320, (14 S.W. 311); Nelson v. Railroad Co., 28 Mont. 297, (72 P. 642, 651); Railroad Co. v. Woodward, 164 Ind. 360, (72 N.E. 558); Railroad Co. v. Morris, 93 P. 664. Our attention is cited by appellant to a recent case decided by the Nebraska Supreme Court (Wente v. Railroad Co., 79 Neb. 175, 112 N.W. 300) which holds that, where it affirmatively appears that the animal shipped has not suffered through the neglect of the carrier, the ordinary presumption of liability from its delivery in bad order has no application. This ruling was made upon an admitted showing that the animal had been shipped in a stable car, with proper food and water, and was tended and cared for over the entire route by the agent and employee of the plaintiff. For the purposes of the argument it may be conceded that under the particular facts there shown the cited decision is entirely sound; but, if it is to be construed as holding that ordinarily a carrier's liability is to be made to turn upon the simple question of negligence, we cannot consent to follow it. Returning now to the facts of the case at bar, we are not prepared to agree with counsel that plaintiff failed to make a prima facie case. While many of the essential facts are the subject of much dispute, there was evidence directly tending to show that the hog when delivered to the defendant at Milwaukee was in good order, and that when redelivered to the plaintiff at Webster City it was in a damaged condition, being unable to stand or walk, showing signs of soreness and pain, and that its death soon followed. Defendant's agent who accompanied...