Thompson v. Mobile, Jackson & Kansas City Railroad Co.

• Citation: 61 So. 596,104 Miss. 651
• Decision Date: 14 April 1913
• Docket Number: 15,910
• Parties: N. B. THOMPSON v. MOBILE, JACKSON & KANSAS CITY RAILROAD COMPANY
• Court: United States State Supreme Court of Mississippi

61 So. 596

104 Miss. 651

N. B. THOMPSON v. MOBILE, JACKSON & KANSAS CITY RAILROAD COMPANY

No. 15,910

Supreme Court of Mississippi

April 14, 1913

APPEAL from the circuit court of Neshoba county HON. C. L. DOBBS Judge.

Suit by N. B. Thompson against the Mobile, Jackson & Kansas City Railroad Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Byrd &amp Wilson and Huddleston & Austin, for appellant.

There are many errors assigned but in this brief we shall attempt to present that the court erred in giving instructions 3, 5 6, 9 and 10 and in presenting our views, we shall endeavor to do so along elementary lines, so well established and recognized by law writers and the courts, as to need no citations to sustain them. These instructions, taken together, simply inform the jury, that although they may believe that plaintiff has suffered damage, yet unless he has shown to the satisfaction of the jury, what part of it was occasioned by the wrongful construction of the road and what part was occasioned by the act of God definitely, so that the jury may be able to ascertain each of these items of damage as to the crop 1906, they should find for the defendant. And notwithstanding what damage the plaintiff may have suffered from the construction of the road across the valley and watercourses mentioned, yet if the jury believe that the construction of such road did not unreasonably and unnecessarily interfere with the passage of waters in the natural watercourses, then the defendant was not liable in any sum. Such is not the law, never was the law and we hope never will be the precedent set by this court. It is violative of our Constitution, which says that private property shall not be taken or damaged for public use, except due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law. Sec. 17, Constitution 1890. Instruction 10 given for the defendant informs the jury that it makes no difference how much the plaintiff was damaged, yet if it was reasonable and necessary that the natural flow of waters be obstructed, then the railroad was not liable. Such is not the law. However reasonable, however necessary it may have been, whenever plaintiff's property was taken or damaged by the act of defendant without first compensation therefor, the defendant became liable and it cannot avoid or shift its liability under the plea of reason or necessity. The crux is not the reasonableness or necessity on the part of the railroad but the taking or damage to the property of the plaintiff. Whenever private property is converted or injured by the act of another, even though it be imperatively done, compensation is due the owner and in the case at bar the evidence conclusively showed damage to plaintiff's property and he was entitled to judgment even though for nominal damages. That the natural flow of the waters had been obstructed and that plaintiff's land had in consequence thereof been submerged, were, if not admitted facts, abundantly established by the evidence that stands uncontradicted and such being the case, plaintiff was entitled to a verdict.

The court also erred in giving instructions 3, 5 and 10 and those applicable to the defense of an unprecedented flood or the act of God as to the destruction of the crop of 1906 and the injury to the land occasioned by the overflow of that year. These instructions taken together simply announce the doctrine, that if the jury should be satisfied that the flood of that year was an unprecedented one and the plaintiff had failed to show by the evidence just exactly how much of the damage was done by "an improper act" or by "the alleged improper construction of the railroad," then the jury should find for the defendant, placing the burden on plaintiff of proving the matter of defendant's affirmative plea.

The "act of God," of the public enemy and unavoidable accident are affirmative defenses and the burden of establishing their truth rests upon him, who pleads them. It did not devolve upon the plaintiff to prove defendant's plea and yet these instructions so hold. If the act of God is pleaded as a defense to the whole action it certainly would devolve upon the defendant to sustain his plea by the proof. By what manner of reasoning can it be held otherwise, when he attempts to defend as to a part? To so hold would be to do violence to all the rules of reason or logic and of pleadings. And yet this is just what these instructions do besides being otherwise objectionable; because they announce to the jury, that before they can give any damges at all they must be satisfied that such damages result from an "improper act" or the "alleged improper construction" of the railroad, which is not true in law. It makes no difference how proper the act or the construction of the railroad may be, if it results in injuries to the individual he is entitled under the law to recover for it. When plaintiff has established that he has been injured and that injury was occasioned by the building of the railroad, whether properly or improperly built, and the amount of that damage, he has done all that is required and if the defendant desired to escape in whole or in part by the plea of the act of God, he must establish his plea. More, whenever the plaintiff shows that his property has been overflowed and the cause of the overflow was from the construction of the railroad and showed with any degree of certainty the amount of injury occasioned thereby, he was entitled to a judgment for that amount and if the defendant wished to escape liability entirely, he should have shown that the injury was occasioned by an unprecedental flood; and if he wished to escape in part such damage, he should have shown that part, at least, of the injury was due to such act of God and what part. That the damge was occasioned entirely by the construction of the road is established by the undisputed evidence of several witnesses, who say that as much, or more, water fell in 1900 and 1902 as on the occasion complained of and Mr. Thompson's uncontradicted statement that the land never overflowed previous to the building of the road shows that the overflow was the result of the construction and that the waterfall of 1906 was not even an unusual one and certainly not an unprecedented one for that community. The doctrine of act of God, superior force or act of the public enemy, unavoidable accident apply to the law of contracts and we doubt very much whether it had any appliancy in trespass. Such, when proved, will excuse one from performing his contract, but can a wrongdoer excuse his wrong act by pleading it? A common carrier can evade his contract of speedy transportation or prompt delivery by pleading and proving prevention by unavoidable accident of the act of God, or of the public enemy, but can one, who by his act floods your land, defend his wrongful act by saying that the land would have been flooded anyhow by an unprecedented rainfall? The uncontradicted proof established that this land had never been flooded before the building of the road and that it was flooded after such building and that the water stayed upon the ground for several days thereafter and that the overflow and the remaining so long over the land were occasioned by the building of the road and that the crop of 1906 was almost, if not entirely, ruined by such overflowing and retention of water on the submerged portion of the land. Can the railroad defend the injury done by the fact, or the contention, that the crop would have been damaged to some extent by the storm anyway? And that the plaintiff cannot recover in any amount unless he can show to a certainty what part of the damage was occasioned by the construction of the road and what part by the storm? Even in the law of contract the party who relies upon the act of God for a defense must be entirely clear of blame himself. Thus, where a carrier seeks to avoid his contract by this plea, he must show that he has in no way been negligent. If he has...