Opinion
No. 33152
Decided May 6, 1953.
Carriers — Horses accompanied by shipper — Action for damages resulting from injuries to horses — Burden on shipper to establish carrier's negligence — Preponderance of evidence — Horses received in good condition and delivered in damaged condition — Prima facie case not established under contract — Charge to jury.
Horses were shipped by express under a uniform ordinary livestock contract, whereby the express company for a fixed charge undertook to forward the animals to their specified destination, which contract provided that the express company would be liable only for "delay, injury or loss caused by the express company or by the negligence of its agent or employees"; that if the animals were accompanied by the owner or an attendant in his employ, the shipper would load, tranship, unload, take care of, feed and water said animals while being forwarded or transported whether delayed in transit or otherwise; that the express company was relieved from liability in reference thereto; and that as a condition precedent to recovery for loss or injury to the animals or delay in their delivery, such loss, injury or delay should be proved by the shipper to have been caused by negligence of the express company. An action was brought to recover damages resulting from injuries to such animals accompanied in transit by the owner or an employee thereof. Held:
1. In order to recover, the shipper must prove by a preponderance of the evidence negligence on the part of the express company proximately causing the claimed injuries.
2. An instruction to the jury, that the plaintiff makes a prima facie case of liability where evidence is offered that the shipment of horses was received in good condition by the carrier and was delivered or received at the destination in a damaged condition, is in conflict with the valid contract executed by the parties and is prejudicially erroneous.
APPEAL from the Court of Appeals for Ottawa county.
Suit was brought in the Court of Common Pleas of Ottawa County against the Railway Express Agency, Inc., to recover damages for injuries to 34 horses shipped from Oak Harbor, Ohio, to Unadilla, New York, under and pursuant to the terms of a uniform livestock contract. The defendant is a corporation organized under the laws of the state of New Jersey and is a common-carrier express company.
The plaintiff, Cyril E. Franck, who is engaged in the business of buying and selling horses, on or about December 1, 1945, delivered to the defendant 34 head of horses which were loaded in compartments in a car provided by the defendant for that purpose. The horses were consigned as ordinary livestock but were saddle horses and draft horses and were separated accordingly inside the car. The shipment moved from Oak Harbor via the New York Central Railroad to Buffalo, from Buffalo via Lackawanna Railroad to Binghamton, New York, and from Binghamton to Unadilla on the Delaware Hudson Railroad. The plaintiff claims that by reason of delay in the transportation of the horses it became necessary to unload them at Buffalo for rest and that while unloaded and intermingling, and subsequent to reloading, the horses suffered injuries by contact with each other.
A caretaker, employed by the plaintiff, accompanied the horses under a separate contract whereby the caretaker was afforded free transportation, but in Buffalo, after the car was unloaded, he suffered injuries in a collision with an automobile and could not accompany the car, although he was on the train. It is alleged in the petition that the defendant took the horses from the custody of the caretaker, and that he did not know of their whereabouts while they were unloaded in Buffalo. Upon arrival at the destination, the shipment of horses was greatly reduced in value, and plaintiff in this action seeks to recover the sum of $2,499.65, claimed to be his loss by reason of the injuries suffered by the horses in transportation.
The defendant asserts two defenses in this action: First, that the notice of claim was not properly given, being made by an agent of the owner of the horses, plaintiff herein; and, second, that since the shipment was accompanied by an employee of the plaintiff the burden was on the plaintiff to show that the injuries to the horses were caused by the negligence of the defendant.
The case was tried to a jury which returned a verdict for the plaintiff in the sum of $1,200.
The Court of Appeals affirmed the judgment of the Court of Common Pleas.
A motion to certify the record of the Court of Appeals having been allowed, the cause is in this court for review.
Mr. A.C. Wilber, for appellee.
Messrs. True Meyer, for appellant.
The defendant contends that the notice of claim filed with it by the O.H. Brown Service did not designate the plaintiff as the owner of the horses and, therefore, did not constitute a compliance with section 8 of the uniform ordinary livestock contract under which the shipment was handled.
The section read as follows:
"As conditions precedent to recovery claims must be made in writing to the originating or delivering carrier within nine months after delivery of the property or, in case of failure to make delivery, then within nine months and fifteen days after date of shipment; and suits shall be instituted only within two years and one day after the date when notice in writing is given by the carrier to the claimant that the carrier had disallowed the claim or any part or parts thereof."
The rule is well established that a contract will be construed most strongly against the party who prepared it. The provision as to the requirement of the presentation of the claim involved herein is in general terms, and the court should not read into it language which would be tantamount to a specific requirement that the owner of the property must himself make such claim. It is not contended that the claim as made was not presented within the prescribed time, and the record discloses that the claim presented was disallowed prior to the commencement of this action.
The defendant contends that the following instruction given as a part of the court's general charge to the jury is prejudicially erroneous:
"Where merchandise, when received by an interstate carrier — such as the defendant is in this case — is in good condition, and when delivered is in a damaged condition, the presumption arises that the damage was caused by the negligence of the carrier. Where a presumption arises that merchandise was damaged by the carrier it is incumbent on the carrier to rebut such presumption by producing evidence that the damage was not the result of its negligence or a breach of contractual duty in connection with the carrier. It is sufficient if the evidence offered for that purpose counterbalances the evidence by which the prima facie case is made.
"Therefore, the plaintiff has made a prima facie case of liability when evidence is offered that the shipment of horses was received in good condition at Oak Harbor, Ohio, to be carried by it for a consideration to Unadilla, New York, and was delivered or received at Unadilla — that is, the horses were received in a damaged condition at said destination.
"* * *
"To rebut such prima facie case it is incumbent on the defendants to produce evidence that the injury or damage was not the result of negligence or breach of contractual duty in connection with the carrier, or some other recognized cause which would exempt the carrier from liability. Such prima facie case is overcome when the evidence introduced in rebuttal counter-balances the evidence by which the prima facie case was made. The burden, as I have stated, rests upon the plaintiff to establish his case by a preponderance of the evidence, and that burden does not shift."
It seems quite obvious that in giving such instruction the court completely disregarded the following provision of the contract between the parties hereto:
"Where said animals are accompanied by the owner or an attendant in his employ, the following further conditions shall apply, viz.: The shipper agrees to load, tranship and unload said animals at his own risk, the express company furnishing the necessary laborers to assist. The shipper shall take care of, feed and water said animals while being forwarded or transported, whether delayed in transit or otherwise, and the express company shall not be under any liability or duty with reference thereto except in the actual forwarding thereof. The shipper further undertakes to see that all doors and openings in the cars in which said animals are shipped are at all times so closed and fastened as to prevent the escape of any of said animals or injury thereto, and the express company shall not be liable on account of the escape of any of said animals or any injury thereto resulting from open doors or defective ventilation.
"The shipper agrees that as a condition precedent to recovery hereunder for loss or injury or damage to or delay in delivery of this shipment, such loss, injury, damage or delay shall be proved by the shipper to have been caused by negligence of the carrier * * *."
It is to be observed also that a so-called "attendant's contract," signed by both the plaintiff and his employee, the attendant and caretaker, who accompanied the shipment, referred thereto as "which said animals are to be under the charge of the undersigned."
The general rule applicable when a shipment of livestock is unaccompanied by the owner or his caretaker, as stated in the case of Wilson v. Pennsylvania Rd. Co., 135 Ohio St. 560, 21 N.E.2d 865, and in the case of Grosjean v. Pennsylvania Rd. Co., 146 Ohio St. 643, 67 N.E.2d 623, is that a prima facie case of liability is made against the carrier where it is shown that the livestock was received in good condition by the initial carrier and was delivered in an injured or damaged condition at destination by the terminal carrier.
However, it was well stated as follows by Williams, J., in the opinion in the former case:
"If the livestock shipped is in charge of the owner or his caretaker, the owner must allege and prove negligence of the carrier as an essential element of his right to recover for injury and damage to the shipment; the reason is that the owner has full cognizance of the surrounding facts. On the other hand, if the livestock is unaccompanied by the owner or his caretaker, proof of negligence in the first instance is not essential."
In 9 American Jurisprudence, 941, following a similar statement of the general rule, it is stated that such rule is held inapplicable where the shipper or his agent accompanies the shipment under an agreement to care for the property, and it is further stated, on page 949, that "under such circumstances the rule is well settled in most jurisdictions that no presumption of negligence on the part of the carrier arises merely from the proof of the fact that loss or injury has attended the shipment, but the burden is on the shipper to show that the loss, if any, was occasioned by the negligence of the carrier. A shipper is also bound to show that the injury or loss was not attributable to the failure to perform or the negligent or improper performance of acts which he undertook to perform."
The following very similar statement in 13 Corpus Juris Secundum, 555, Section 254, is quite pertinent:
"It is a general rule, with some exceptions and qualifications, that where the owner undertakes to accompany livestock for the purpose of caring therefor, the burden is on him to show that the loss of, or injury to, the stock was due to the carrier's negligence. Ordinarily the burden is on the shipper accompanying livestock to show that loss of, or injury to, the stock was not caused by his negligence."
The rule that a shipper has only the duty to make a prima facie case by showing that the carrier received the shipment in good condition and delivered it in an injured or damaged condition evolves from the fact that the cause of the injury or damage is usually peculiarly within the knowledge of the transportation company, and the rule is otherwise where the shipper or his designated employee, particularly where he is acting as caretaker under a contract of the shipper and the carrier, is in a position where he has equal or better opportunity to observe the handling of the shipment and is also in a position of responsibility in connection therewith.
The prejudicial effect of the charge of the court is clearly apparent and had the effect of relieving the plaintiff of the burden of proving negligence as a part of his case.
The judgment of the Court of Appeals, affirming the judgment of the Court of Common Pleas, is reversed and the cause remanded for a new trial.
Judgment reversed.
WEYGANDT, C.J., MIDDLETON, TAFT, HART, ZIMMERMAN and STEWART, JJ., concur.