Opinion
No. 30550
Decided June 12, 1946.
Carriers — Livestock unaccompanied by caretaker — Prima facie case against terminal carrier — Shipment received in good condition by initial carrier but delivered damaged — Prima facie case rebutted and terminal carrier exempted from liability, when — Prima facie case rebutted by counterbalancing evidence — Burden on plaintiff to establish case by preponderance of evidence — Delivery of livestock afflicted with disease at destination — Insufficient to fix responsibility on carrier, when.
1. A prima facie case of liability is made against a terminal carrier where evidence is offered that a shipment of livestock, unaccompanied by the owner or his caretaker, was received in good condition by the initial carrier and was delivered in an injured or damaged condition at the destination by the terminal carrier. ( Wilson v. Pennsylvania Rd. Co., 135 Ohio St. 560, approved and followed.)
2. To rebut such prima facie case it is incumbent on the terminal carrier to produce evidence that the injury or damage was not the result of negligence or a breach of contractual duty in connection with the carriage, or that such injury or damage was due to the inherent vice, weakness or natural propensities of the livestock or to some other recognized cause which would exempt the carrier from liability.
3. Such prima facie case is overcome where the evidence introduced in rebuttal counterbalances the evidence by which the prima facie case was made.
4. The burden rests upon the plaintiff to establish his case by a preponderance of all the evidence and that burden does not shift.
5. Where all the evidence on the subject is to the effect that there was no negligence, fault or breach of contractual duty on the part of the carrier in transporting a shipment of livestock, the bare fact that the livestock were afflicted with a disease upon arrival at their destination is insufficient to fix responsibility therefor on the carrier.
APPEAL from the Court of Appeals of Wayne county.
This action was commenced in the Court of Common Pleas of Wayne county by George F. Grosjean against the Pennsylvania Railroad Company. Plaintiff alleged in his amended petition that he purchased 58 head of cattle at Woodward, Oklahoma, which were delivered in good health and condition to the Atchison, Topeka Santa Fe Railroad Company, a connecting carrier of the defendant, and consigned and billed to plaintiff at Wooster, Ohio; that plaintiff paid the established rate for the carriage of the cattle; that the defendant and its connecting carrier agreed to convey such livestock safely and securely; that the defendant failed to carry out and perform such agreement; and that by reason of the careless and negligent transportation of the animals they arrived at their destination in an injured and damaged condition. Plaintiff alleged further that he refused to accept the shipment.
Damages for breach of contract and negligence were claimed in the sum of $1,556, with interest, representing the difference between the amount paid plaintiff by the defendant and the reasonable market value of the cattle in the condition in which they were received by the initial carrier.
The answer contained certain admissions, followed by a general denial and particular denials that the animals were in good health and condition when delivered to the initial carrier; that the defendant or the original carrier agreed to convey the animals safely and securely; that defendant was guilty of negligence; or that the cattle were of the value claimed by plaintiff.
Continuing, the answer averred that the shipment was made under a uniform livestock contract. Such contract contained the following provision:
"Sec. 1 (a) Except in the case of its negligence proximately contributing thereto, no carrier or party in possession of all or any of the livestock herein described shall be liable for any loss thereof or damage thereto or delay caused by act of God, the public enemy, quarantine, the authority of law, the inherent vice, weakness, or natural propensities of the animal, or the act or default of the shipper or owner, or the agent of either, or by riots, strikes, stoppage of labor or threatened violence."
Next, the answer set forth that the cattle shipped by the plaintiff were suffering from an inherent vice or weakness, to wit: a disease known as hemorrhagic septicemia, and that their condition upon arrival, complained of by plaintiff, was due to such cause and not to any fault or negligence on the part of the carriers.
Concluding, the answer averred that the shipment was made promptly and expeditiously, and that no delay or improper handling occurred.
The prayer of the answer asked that the amended petition be dismissed at plaintiff's costs.
For reply, the plaintiff admitted shipment under a uniform livestock contract containing the provision quoted in the answer, and denied "every allegation and statement of fact in the defendant's answer contained not being admissions or denials of allegations of the plaintiff's amended petition."
Upon the trial, the evidence introduced by plaintiff established that the shipment in question consisted of 58 calves, six or seven months old, most of which plaintiff purchased on October 8, 1943, in Woodward, Oklahoma, at a sale conducted by the Woodward Livestock Commission Company. The remainder of the calves were purchased by plaintiff about the same time directly from a farmer and cattle raiser residing near Woodward. According to the testimony, the animals appeared to be in good condition, and a veterinarian of Woodward issued a certificate certifying them free from disease. The shipment left Woodward in a cattle car, over the Atchison, Topeka Santa Fe railroad, on the early morning of October 10, 1943, and reached Wooster, Ohio, via the Pennsylvania railroad, on the afternoon of October 14, 1943. Upon arrival, the calves were weak and sick and one was dead in the car. They were unloaded and four more were dead by the next morning. Plaintiff refused the shipment.
In its evidence, the defendant traced the shipment from Woodward, Oklahoma, to Wooster, Ohio. Such evidence, consisting largely of official records, indicated that the transportation was in all respects normal and without any untoward incident. The calves were unloaded, fed and watered at Kansas City, Missouri, and again at Chicago, Illinois. The records contained no statement of sickness or injury. The only unusual incident was a delay of 15 minutes enroute, because of a hotbox on another car of the train.
Upon refusal of the shipment, the defendant transported the calves to Pittsburgh, Pennsylvania.
Defendant called as its witness a Pittsburgh veterinarian who had examined the calves after their arrival at Pittsburgh. He testified that he did not discover any bruises or violent injury to the animals, but that they were affected with a serious disease known as hemorrhagic septicemia, commonly called "shipping fever"; that such disease is a bacterial infection of high virulency; that all animals have the bacteria lying dormant in their lungs, which bacteria become active when the animals are debilitated and lack resistance; and that it is a weakness found particularly in young cattle and frequently develops when they are suddenly taken away from their mothers. In answer to a hypothetical question, the doctor expressed the opinion that the calves in controversy were sick before the shipment began.
At the close of plaintiff's case and again at the close of all the evidence the defendant moved for a directed verdict, which motions were overruled.
In submitting the case to the jury, the court eliminated the issue of negligence because none appeared from the evidence. In the general charge the court stated:
"So the only issue for you to consider is whether or not there was a breach of contract to convey these cattle from Woodward, Oklahoma, to Wooster, Ohio, and that contract is based upon plaintiff's exhibit 'A', which is termed a uniform livestock contract."
The jury returned a verdict for the plaintiff in the full amount claimed, and defendant's motion for judgment notwithstanding the verdict was overruled. From that ruling an appeal was taken on questions of law.
The Court of Appeals reversed the judgment of the trial court and rendered final judgment for the defendant. In its opinion, the Court of Appeals said:
"Having properly determined as a matter of law that the defendant was not guilty of negligence, it was the duty of the trial court to enter judgment for the defendant, and its failure so to do was error."
A motion to require the Court of Appeals to certify its record having been allowed by this court, the case is here for determination on its merits.
Messrs. Critchfield, Critchfield Critchfield and Mr. Christian E. Rhonemus, for appellant.
Messrs. Burt, Carson, Shadrach Miller, for appellee.
In the case of Wilson v. Pennsylvania Rd. Co., 135 Ohio St. 560, 21 N.E.2d 865, this court announced the following rule:
"In an action brought by an owner of livestock against a terminal carrier to recover damages sustained during shipment, the owner makes out a prima facie case when he introduces evidence that the livestock was unaccompanied by himself or his caretaker, was received for shipment by the initial carrier in good condition and delivered at the destination by the terminal carrier in an injured or damaged condition."
Putting the proposition a little differently, a prima facie case of liability is made against a terminal carrier where evidence is offered that a shipment of livestock, unaccompanied by the owner or his caretaker, was received in good condition by the initial carrier and was delivered in an injured or damaged condition at the destination by the terminal carrier.
To rebut such prima facie case it is incumbent on the terminal carrier to produce evidence that the injury or damage was not the result of negligence or a breach of contractual duty in connection with the carriage, or that such injury or damage was due to the inherent vice, weakness or natural propensities of the livestock or to some other recognized cause which would exempt the carrier from liability. 13 Corpus Juris Secundum, 551, Section 254; Panhandle S. F. Ry. Co. v. Wilson (Tex Civ. App.), 135 S.W.2d 1062.
The statement is made in Klunk v. Hocking Valley Ry. Co., 74 Ohio St. 125, 133, 77 N.E. 752, 754, that "to rebut and destroy a mere prima facie case, the party upon whom rests the burden of repelling its effect, need only produce such amount or degree of proof as will countervail the presumption arising therefrom. In other words, it is sufficient if the evidence offered for that purpose, counterbalance the evidence by which the prima facie case is made out or established, it need not overbalance or outweigh it."
Again, in Ginn, Admr., v. Dolan, 81 Ohio St. 121, 127, 90 N.E. 141, 142, 135 Am. St. Rep., 761, 18 Ann. Cas., 204, it was remarked:
"* * * the burden, which rests upon the plaintiff to establish the material averments of his cause of action by the preponderance of all the evidence, never shifts. The party who maintains the affirmative of an issue carries the burden of proof through the whole case, although he may be aided by such a rebuttable presumption of law, or such facts, as would prima facie support his contention. His opponent need do no more than counterbalance the presumption, or prima facie case."
"The rule is that he who affirms must prove, and when the whole of the evidence upon the issue involved leaves the case in equipoise, the party affirming must fail." Klunk v. Hocking Valley Ry. Co., supra.
Let us assume in the instant controversy that plaintiff established a prima facie case of liability against the defendant by introducing evidence tending to show the calves were in good condition when shipped and arrived at their destination in a diseased condition. We here note that plaintiff stated during his examination as a witness that the shipment was made with dispatch and the calves were not overcrowded in the cattle car.
In defense of the action, the defendant produced evidence that the transportation of the calves from Woodward, Oklahoma, to Wooster, Ohio, was in all respects normal and regular; that there were no extraordinary delays; that the animals were twice unloaded, fed and watered; that there was nothing to indicate rough handling on the part of the railroads or unusually rough transportation; and that the weather was typical of the month of October, according to the weather reports. No negligence or breach of contractual duty by the carriers is anywhere discernible; so all we have against the defendant is that the calves were in a diseased condition upon arrival in Wooster.
The uniform livestock contract under which the shipment was made contained the exception already quoted in the statement of the case.
Upon the record before us, it is just as consistent to say that the disease afflicting the calves here involved was due to "the inherent vice, weakness, or natural propensities of the animal" as it is to say that such disease was attributable to any fault or neglect of the carriers.
Whether we regard this case as one in tort or on contract, a determination that the disease of the calves was caused through negligence or breach of contractual duty on the part of the carriers would rest on speculation and conjectures, which of course is not permitted.
A number of cases have adopted the rule that a carrier is not an insurer against injuries arising from the nature and propensities of animals which it has undertaken to transport and which injuries due care could not prevent. It is certainly not liable for injuries due to disease developed by the animals without its fault. The mere fact that an animal, apparently sound when delivered for shipment, arrives at its destination with a disease is not enough to charge the carrier with having negligently caused such disease. See A. Polk Son v. New Orleans N.E. Rd. Co., 184 Miss. 559, 185 So. 554.
The following cases, among others which could be cited, hold that where animals develop disease or die from disease while being transported from one place to another by a carrier and there is no indication of negligence or breach of contractual duty on the part of the carrier, a recovery against the carrier on account of such disease or death may not be had: Nugent v. Chicago N.W. Ry. Co., 183 Iowa 1073, 166 N.W. 592; Illinois Central Rd. Co. v. Word, 149 Ky. 229, 147 S.W. 949; Bloecher Schaaf, Inc., v. Pennsylvania Rd. Co., 162 Md. 463, 160 A. 281; Stephenson Mule Co. v. Powell, 199 S.C. 450, 15 S.E.2d 389. See, also, 9 American Jurisprudence, 948, Section 845; 13 Corpus Juris Secundum, 551 et seq., Section 254.
We conclude that plaintiff did not sustain the required burden of proof in this case and that the Court of Appeals correctly reversed the judgment of the trial court and entered final judgment for the defendant. The judgment of the Court of Appeals is therefore affirmed.
Judgment affirmed.
TURNER, MATTHIAS and HART, JJ., concur.
WEYGANDT, C.J., BELL and WILLIAMS, JJ., dissent.
As was held by this court without dissent in the case of Wilson v. Pennsylvania Rd. Co., 135 Ohio St. 560, 21 N.E.2d 865, "in an action brought by an owner of livestock against a terminal carrier to recover damages sustained during shipment, the owner makes out a prima facie case when he introduces evidence that the livestock was unaccompanied by himself or his caretaker, was received for shipment by the initial carrier in good condition and delivered at the destination by the terminal carrier in an injured or damaged condition."
Was the unaccompanied shipment of livestock in the instant case received by the initial carrier in good condition and delivered at the destination by the terminal carrier in an injured or damaged condition?
According to the evidence disclosed by the record, the plaintiff purchased 116 calves at Woodward, Oklahoma. All of them were delivered to the railroad yards in that city and were placed together in one pen where they were examined by a veterinarian who testified that "they were an exceptionally nice group of calves, fat, well fed, uniform in size, and healthy in every respect." (Italics supplied.) One-half of the calves were placed in one car and the second half in another of the same size. The second carload made the trip from Woodward to Wooster in five and one-half days and arrived in "perfect" condition. The first carload required one day less for the trip, but when these calves arrived "they were mostly laying down; * * * normal western cattle would move, but these cattle did not move, they were all in; they were in an emaciated condition * * * they had no spirit left, it had been knocked out of them; * * * numerous of them had both eyes gone; their eyes were gray and scratched; * * * their skin was not torn but they were in awful shape as though they had been in a wreck." Another witness testified that one calf was dead and that the eyes of some of the calves "were scarred and it seemed as though something had happened to them."
Furthermore, a veterinarian testified that calves become more susceptible to the disease of hemorrhagic septicemia if subjected to mishandling, negligence or exposure.
On the basis of either trauma or disease it would seem that the Court of Appeals manifestly was in error in holding that the cumulative effect of this testimony constitutes no evidence of negligence in handling the one carload of calves while in the exclusive possession and control of the carriers.
BELL and WILLIAMS, JJ., concur in the foregoing dissenting opinion.