Opinion
No. 33990.
February 26, 1940.
1. CARRIERS.
A common carrier must deliver inanimate goods accepted by it for transportation in as good condition as when received unless damage thereto results from one of the causes which, at common law, exempt the carrier from liability, one of which is the inherent nature of the goods.
2. CARRIERS.
In an action by a shipper against a carrier for damage to goods shipped, where carrier's defense is that damage resulted from inherent nature of goods, unless that fact and fact that negligence of carrier did not contribute to damage appear in shipper's evidence, carrier has burden of proving that damage resulted from inherent nature of goods without fault or negligence on its part.
3. PLEADING.
In shipper's action against carrier for damage to a carload of tomatoes, where declaration alleged delivery of tomatoes to carrier in good condition and delivery by carrier to consignee in a damaged condition, allegation that damage was caused by negligence of carrier and its connecting carriers in failing to transport shipment with proper degree of care and in handling shipment in a rough and negligent manner could be treated as surplusage.
4. CARRIERS.
In shipper's action against carrier for damage to a carload of tomatoes, evidence that shifting of lugs in which tomatoes were packed contributed to damage, if it did not solely cause damage, cast on carrier burden of proving that shifting was not caused by its negligence, and in absence of introducing any evidence to show cause of shifting, trial court properly directed a verdict for shipper.
5. APPEAL AND ERROR.
Where the jury properly obeyed an instruction directing it to render a verdict for shipper in action against carrier for damage to a carload of tomatoes, whether there was any error in granting and refusing instructions setting forth circumstances under which carrier would be liable for damage was immaterial.
6. APPEAL AND ERROR.
In shipper's action against carrier for damage to a carload of tomatoes, error, if any, in instruction that in assessing damages, jury could consider difference between market value of tomatoes on arrival at destination in a damaged condition and market value if tomatoes had arrived in good sound condition was not prejudicial, even though shipper's evidence showed that some of the tomatoes were not in good sound condition when delivered to carrier, where the only evidence of value of tomatoes when shipped was their value in their then condition, and amount of verdict was much less than difference between the two market values.
APPEAL from the circuit court of Copiah county; HON. J.F. GUYNES, Judge.
M.S. McNeil, of Hazlehurst, and Stevens Stevens, of Jackson, for appellant.
The sole issue in this cause is whether the evidence of plaintiff's witnesses established a basis for the conclusion that the damage to the shipment resulted from rough handling and negligence of the carrier, or whether the carrier carried the burden of proving that the disputed damage did not result from the inherent defective quality or vice of the tomatoes.
Although the declaration alleged that the damage to the shipment was due to the negligence and rough handling of the shipment by the carrier, the plaintiff based his case upon the theory that the tomatoes were delivered to the defendant in good condition, were delivered by the carrier in bad condition, that the carrier was liable as an insurer unless it could exonerate itself by proving how much of the damage resulted from the inherent vice of the tomatoes.
The granting of the peremptory instruction for the plaintiff, without limiting the same to the defendant's tender, and the granting of the instruction on damages, constitutes fatal error. Having elected to sue the defendant on the ground of negligence and not as an insurer, the burden was on the plaintiff to prove negligence and to prove what part of the damage to the shipment resulted from the defendant's negligence, as the defendant could not be liable for damage to the shipment due to its inherently defective condition.
Wentworth Fruit Growers' Ass'n v. Am. Ry. Exp. Co., 1 S.W.2d 1028.
The presumption of negligence is not applicable where the plaintiff in his declaration alleges negligence on the part of the carrier, for when he does he must prove negligence.
Crokett v. St. Louis H.R. Co., 147 Mo. App. 347, 126 S.W. 243; Hearst v. St. Louis S.F.R.R. Co., 117 Mo. App. 25, 94 S.W. 794; Am. Ry. Exp. Co. v. Cole, 185 Ark. 532, 48 S.W.2d 223; Ga. S. F.R.R. Co. v. Makeover, 228 Ky. 492, 15 S.W.2d 293; Edwards v. Am. Ry. Exp. Co., 128 Me. 470, 148 A. 679; Snowden v. Tremont G.R.R. Co., 140 So. 122; Siegel v. Chicago, etc., Ry. Co., 208 N.W. 78.
Acceptance of the shipment does not raise any presumption that the goods were in good condition when delivered to the carrier.
13 C.J.S., p. 152, par. 79, p. 283, par. 142, p. 538, par. 254; Gramling Electric Refrigeration Co. v. Southern R. Co., 155 S.C. 394, 152 S.E. 670; House v. Wheelock, 254 Ill. App. 149; Goldberg v. N.Y., N.H. H.R. Co., 130 Me. 96, 153 A. 812.
There can be no doubt that the burden rested upon the plaintiff to prove that the shipment was in good condition when delivered to the carrier as a condition precedent.
Monnier v. U.S., 16 F.2d 812; Mexican Import Co. v. Pa. R.R. Co., 193 Ill. App. 26; Ruddell v. Baltimore Ohio R.R. Co., 152 Ill. App.? 218; House v. Wheelock Beird, Rec'rs C. A.R.R. Co., 244 Ill. App. 270; 106 A.L.R. 1161; Snowden v. Tremont G.R.R. Co., 140 So. 122; Machinery Supply Co. v. Erie R.R. Co., 40 Ohio App. 99, 178 N.E. 26; Atlantic Coast Line R. Co. v. Enterprise Oil Co., 101 So. 605.
Burden of proof was on plaintiff to prove extent of damage resulting from negligence of carrier, and carrier is not liable for loss occasioned by deterioration due to natural causes.
Elliott on Railroads (2 Ed.), Sec. 1516; St. Louis Southwestern Ry. Co. v. Grant, 174 S.W. 714; A. Polk Sons v. N.O. N.E.R.R. Co. (Miss.), 185 So. 554; Galveston, etc., Ry. Co. v. Licata, 280 S.W. 540; Rudi v. Railroad, 278 S.W. 814.
W.S. Henley, of Hazelhurst, for appellee.
Plaintiff established prima facie case by showing delivery to carrier in sound condition and delivery at destination in a mashed, bruised and decayed condition.
Am. Exp. Co. v. Cole, 185 Ark. 532, 48 S.W.2d 223; Ga., S. F.R.R. Co. v. Makeover, 228 Ky. 492, 15 S.W.2d 293; Siegel v. Chicago, etc. Ry. Co., 208 N.W. 78; Snowden v. Tremont G.R.R. Co. (La.), 140 So. 122; Hogg v. L. N.R.R. Co., 127 S.E. 830; Deming v. Missouri, K. T.R.R. Co., et al., 138 Okla. 276; Southeastern Exp. Co. v. Namie, 181 So. 515.
Recital in bill of lading establishes that shipment was in good order.
Perkel v. Pa. R. Co., 265 N.Y.S. 597; So. Ry. Co. v. Northwestern Fruit Exch., 98 So. 382, 210 Ala. 519; Effron, Kushner Co. v. Am. Ry. Exp. Co., 193 N.W. 539, 195 Iowa 1168; Am. Cotton Oil Co. v. Davis, 224 P. 23, 129 Wn. 24; McMahon v. Am. Ry. Exp. Co., 141 A. 566, 6 N.J. Misc. 468, 144 A. 920, 105 N.J. Law 494; Jefferson Macaroni Co. v. Pa. R. Co., 154 A. 188, 9 N.J. Misc. 405, 160 A. 635, 109 N.J. Law 266.
Plaintiff proved shipment was damaged while in the carrier's possession.
Ohio Galvanizing Mfg. Co. v. So. Pac. Co., 39 F.2d 840; L. N.R. Co. v. Kinney, 127 So. 804, 221 Ala. 136; Missouri Pac. R. Co. v. Wellborn Walls, 280 S.W. 18, 170 Ark. 469, certiorari denied, 47 S.Ct. 91, 273 U.S. 694, 71 L.Ed. 844; Alexander v. Texas P. Ry. Co., 129 So. 419, 14 La. App. 245; Goldberg v. N Y, N.H. H.R. Co., 153 A. 812, 130 Me. 96.
Where damage was due to concurrent negligence of the carrier and to inherent defects, plaintiff is entitled to recover.
Perkel v. Pa. R. Co., 265 N.Y.S. 597; Chesapeake O. Ry. Co. v. Timberlake, Currie Co., Inc. 137 S.E. 507; Lehigh Valley R. Co. v. State of Russia, 21 F.2d 396, certiorari denied, 48 S.Ct. 159, 275 U.S. 571, 72 L.Ed. 432; Missouri N.A.R. Co. v. United Farmers of America, 292 S.W. 990, 173 Ark. 577; St. Louis-San Francisco Ry. Co. v. Ozark White Line Co., 9 S.W.2d 17, 177 Ark. 1018; Hurley v. I.C.R. Co., 282 S.W. 97, 221 Mo. App. 487; 10 C.J. 121, 122; Spann v. A. V.R. Co., 74 So. 141, 113 Miss. 239.
Argued orally by John Morgan Stevens and M.S. McNeil, for appellant, and by W.S. Henley, for appellee.
The appellee delivered a carload of tomatoes to the appellant at Crystal Springs, Mississippi, for transportation to Philadelphia, Pennsylvania. When the tomatoes were delivered to the consignee, many of them were bruised and decayed, resulting in their being necessarily sold for considerably less than what they would have sold for had they been delivered to the consignee in the same condition they were when delivered to the appellant at Crystal Springs, Mississippi. The appellee's evidence discloses that the tomatoes were inspected when delivered to the appellant, which inspection disclosed that the: "Stock is fairly clean to clean, fairly well formed to slightly misshapen, generally fairly smooth to smooth, firm, less than 1% decay. Grade defects range from 12% to 50%, averaging approximately 35%, consisting chiefly of growth cracks, side holes, worm damage, cuts, and misshapen tomatoes." According to the evidence for the appellee, the "growth cracks, side holes, worm damage (and) cuts" would not result of themselves alone in further damage to the tomatoes if transported and delivered within the usual time therefor, but, according to the evidence for the appellant, they would result in the tomatoes so affected becoming leaky and soft and cause other tomatoes to so become.
The tomatoes were packed in lugs, which were loaded into one of the appellant's cars and so placed and secured that the tomatoes would not mash or bruise in transit unless the position of the lugs should shift, which would not occur if the cars were properly handled. When the tomatoes arrived in Philadelphia, the lugs had "Shifted from A to B end of car 1 to 6 inches". This shifting of the lugs resulted in the bruising and mashing of many of the tomatoes, thereby contributing to the damage to the tomatoes, if any, that resulted from the defects therein when delivered to the appellant. The appellant admits damage for which it was responsible to twenty-three lugs of tomatoes and tendered payment therefor.
The court instructed the jury "to find for the plaintiff, and assess the damages at such amount as you may believe from the evidence plaintiff is entitled to recover". Also, by another instruction, "that in assessing his damages you may take into consideration the difference between the market value of the tomatoes on arrival at destination in a damaged condition, if you believe they were in a damaged condition, and the market value of said tomatoes if the same had arrived in good sound condition."
According to the evidence for the appellee, the defects of these tomatoes were not such as to affect their shipping quality. That, if properly handled, they would have reached their destination in the same condition in which they were delivered to the appellant. A common carrier must deliver inanimate goods accepted by it for transportation in as good condition as when received, unless damage thereto resulted from one of the causes, which, at common law, exempt the carrier from liability therefor, one of which causes is the inherent nature of the goods. In an action by a shipper against a carrier for damage to goods shipped, and the carrier's defense is that the damage resulted from the inherent nature of the goods, unless that fact and that negligence of the carrier did not contribute thereto appear in the shipper's evidence, the burden is on the carrier to prove that the damage resulted from the inherent nature of the goods without fault or negligence on its part contributing thereto. Southeastern Express Co. v. Namie, 182 Miss. 447, 181 So. 515; Yazoo M.V.R. Co. v. Craig, 118 Miss. 299, 79 So. 102; Louisville N.O.T. Ry. Co. v. Bigger, 66 Miss. 319, 6 So. 234; Chicago, St. L. N.O.R. Co. v. Abels, 60 Miss. 1017; Johnson v. Alabama V. Ry. Co., 69 Miss. 191, 11 So. 104, 30 Am. St. Rep. 534; Yazoo M.V.R. Co. v. Bell, 111 Miss. 82, 71 So. 272; Illinois Cent. R. Co. v. Mahon Live Stock Company, 111 Miss. 496, 71 So. 802; and Illinois Cent. R. Co. v. W.M. Atkinson McDonald Company, 113 Miss. 678, 74 So. 616.
The condition of these tomatoes when shipped, as disclosed in the appellee's evidence, would have resulted, according to the appellant's evidence, in no damage thereto while in transit. The evidence for the appellant is to the contrary. But, the evidence further discloses that another cause, the shifting of the lugs in which the tomatoes were packed, contributed, if it did not solely cause, the damage to the tomatoes. This fact cast on the appellant the burden of proving that the shifting of the lugs was not caused by its negligence, and, this burden, it wholly failed to meet, having introduced no evidence whatever as to the cause of the shifting of the lugs. But, it is said by counsel for the appellant that the burden of proving such negligence was on the appellee, for the reason that, in his declaration, the appellee alleged that the damage to the tomatoes was caused by "the negligence of the defendant railroad company and its connecting carriers in failing to transport said shipment with the proper degree of care and in handling said shipment in a rough and negligent manner." This allegation was unnecessary and may be treated as surplusage, the declaration having alleged the delivery of the goods to the appellant in good condition and the delivery by it to the consignee in a damaged condition. Southeastern Express Company v. Namie, 182 Miss. 447, 181 So. 515. The court below therefore committed no error in charging the jury to find for the appellee. The court, in addition to this instruction, granted and refused others setting forth the circumstances under which the appellant would be liable for the damage to the tomatoes. Whether any error appears therein or not is of no consequence, for the jury, obeyed, as its duty was, the instruction directing it to render a verdict for the appellee. The only error, if any, that appears in the instruction as to the measure of damages, is the use of its closing words: "If the same had arrived in good sound condition." The evidence of the appellee discloses that some of the tomatoes were not in good sound condition when delivered to the appellant; but the only evidence as to the value of the tomatoes when shipped was their value in their then condition, so the jury could not have been mislead by this instruction; and that the appellant was not prejudiced thereby is evidenced by the fact that the amount of their verdict is much less than the difference between these two market values of the tomatoes.
Affirmed.