Opinion
Opinion filed February 8, 1928.
Carriers — Effect of Allegation in Declaration That Defendant Is Common Carrier — Duties of Common Carrier Re Transportation and Delivery of Goods — Pleading — Allegations Making Prima Facie Case Sufficient — Prima Facie Effect of Acceptance of Merchandise by Common Carrier for Transportation — Sufficiency of Allegations in Action for Damages for Delay in Transit — Duty of Carrier To Explain or Excuse Delay of Shipment — Variance — Declaration for Damages for Delay in Shipment Need Not Set Forth Terms of Bill of Lading — Ground of Demurrer First Raised in Supreme Court.
1. Where declaration, in action of tort against common carrier for damages occasioned by delay of goods in transit, alleged that defendant was common carrier, duties and obligations imposed upon it by common law follow as matter of course.
2. Common carrier, among other duties, has that of safe transportation of goods delivered to it for carriage, and delivery of such goods at destination within reasonable time.
3. One is required to allege in his declaration only what is necessary to prove in making out a prima facie case.
4. Prima facie, defendant common carrier, by accepting merchandise for transportation, held to have incurred responsibilities put upon it by common law, or that law as modified by statute.
5. In action of tort against common carrier for damages occasioned by delay of goods in transit, it is sufficient to allege delivery of goods to carrier, delay in arrival, and consequent injury.
6. Since causes of delay are particularly within knowledge of carrier, it is for carrier to excuse or explain such delay and bring itself within an exception to its liability, if such exists.
7. In action of tort against common carrier for damages by delay of goods in transit, even though negligence is alleged and fails of proof, there is no variance, and plaintiff may recover, if evidence shows a case under general rule respecting liability of carriers.
8. In such action, declaration need not set forth terms of bill of lading under which shipment proceeded, and legal duty to be deduced therefrom, since, if any special contract therein contained limits defendant's common law liability, it is for defendant to bring itself within its operation.
9. Claim not made ground of demurrer to complaint in lower court will not be considered by Supreme Court on exceptions to overruling of defendant's demurrer.
ACTION OF TORT against common carrier for damages occasioned by delay of goods in transit. Heard by court on demurrer to declaration at September Term, 1927, Washington County, Buttles, J., presiding. Demurrer overruled and declaration adjudged sufficient. The defendant excepted. The opinion states the case. Affirmed.
H.C. Shurtleff for the defendant.
Deane C. Davis and John W. Gordon for the plaintiff.
The declaration alleges that the defendant, on the date in question, was a common carrier of goods for hire, and that the plaintiff delivered to it a carload of bananas to be safely, expeditiously, and securely freighted, carried, and conveyed, as a perishable commodity, from New York City to the city of Barre for a certain reasonable reward to be paid by the plaintiff; yet the defendant, not regarding its duty as a common carrier, but contriving and intending to injure the plaintiff, did not and would not safely, expeditiously, and securely freight, carry, and convey the bananas from New York to Barre and there safely, securely, and with reasonable despatch deliver the same to the plaintiff, but, on the contrary, so carelessly and negligently behaved and conducted in the premises that, by reason of its negligence and carelessness and delay in transit, a large portion of the bananas became spoiled and unmerchantable.
The defendant demurred to the declaration. After hearing, the demurrer was overruled by the trial court, and the case is here on the defendant's exceptions.
It is argued that this declaration fails to allege facts which show the existence of a duty owing from the defendant to the plaintiff, the shortage of that duty, and the resulting injury, and the facts constituting the claimed negligence, and how the same caused the injury.
But the answer to this is that the declaration alleges that the defendant was a common carrier, and, this being so, the duties and obligations imposed upon it by common law follow as a matter of course. Wright v. McKee, 37 Vt. 161, 164; Kimball v. Rutland Burlington R.R. Co., 26 Vt. 247, 255, 62 A.D. 567. Among these duties is that of safe transportation of goods delivered to it for carriage and the delivery of such goods at the destination within a reasonable time. Chicago and A.R. Co. v. Kirby, 225 U.S. 155, 56 L. ed. 1033, 1037, 32 Sup. Ct. 648, Ann. Cas. 1914A, 501.
One is required to allege in his declaration only what is necessary to prove in making out a prima facie case. Prima facie, the defendant, by accepting the merchandise for transportation, incurred the responsibilities put upon it by the common law, or that law as modified by statute. Haglin-Stahr Co. v. M. and W.R.R., 92 Vt. 258, 261, 102 A. 940, 23 A.L.R. 748. It is not claimed here that there are any statutory modifications of the common law in this regard.
It is true that the declaration alleges negligence on the part of the defendant. But, while the term "negligence" is often used in this connection (see Kimball v. Rutland Burlington R.R. Co., 26 Vt. 247, 254, 62 A.D. 567), the "prudent man" rule as commonly understood has no application. It is sufficient to allege the delivery of the goods to the carrier, the delay in arrival, and the consequent injury. Haglin-Stahr Co. v. M. and W.R.R., supra. Since the causes of the delay are particularly within the knowledge of the carrier, it is for it to excuse or explain such delay and bring itself within an exception to its liability, if such exists. Mann v. Birchard, 40 Vt. 326, 328, 94 A.D. 398; Parker v. B. and M.R.R., 84 Vt. 329, 337, 79 A. 865; Haglin-Stahr Co. v. M. and W.R.R., supra, at page 262 (102 A. 940). Even though negligence is alleged in such an action against a carrier and fails of proof, there is no variance, and the plaintiff may recover, if the evidence shows a case under the general rule respecting the liability of carriers. Sargent v. Birchard Page, 43 Vt. 570, 573.
The defendant says that the declaration should set forth the terms of the bill of lading under which the shipment proceeded, and the legal duty to be deduced therefrom. But, if any special contract therein contained limits the defendant's common law liability in any respect material here, it is for the defendant to bring itself within its operation. Haglin-Stahr Co. v. M. and W.R.R., supra.
It is also argued that the declaration does not allege in what manner the bananas were injured. This point was not made a ground of the demurrer, and we do not consider it.
There was no error in the ruling below.
Judgment affirmed, and cause remanded.