Opinion
No. 33068.
May 23, 1938. Suggestion of Error Overruled June 20, 1938.
1. CARRIERS.
The liability of a common carrier of inanimate freight is practically that of an insurer against loss or injury, except as to loss or injury caused by act of God, by public authorities, public enemy, inherent nature of goods, or by act or default of owner or shipper.
2. CARRIERS.
In action against common carrier for loss of, or injury to, goods in transit, carrier has burden of pleading and proving that loss or injury was caused by act of God, by public authorities, public enemy, inherent nature or quality of goods, or by act or default of owner or shipper.
3. CARRIERS.
The plaintiff in action for loss or injury to shipment of inanimate freight or express is not required to allege or prove negligence on part of carrier.
4. JUDGMENT.
A plaintiff who has alleged and proved facts essential to a recovery is entitled to judgment.
5. PLEADING.
A plaintiff is not required to allege or prove more than is essential to a recovery, and any unnecessary allegations will be treated as surplusage.
6. JUDGMENT.
A recovery may be had in contract where it is supported by allegations and proof, notwithstanding that declaration sounded in tort (Code 1930, section 521).
7. PLEADING.
Facts not essential to plaintiff's case need not be alleged or proved, but if they are alleged, failure of proof thereof will not affect right of recovery.
8. PLEADING.
Facts not essential to plaintiff's case when alleged and attempted to be proved must be proved, even though it would otherwise have been unnecessary either to allege or to prove them.
9. CARRIERS.
A shipper suing carrier for damages to shipment of skunk pelts in transit was required only to prove that goods were delivered to carrier properly packed and in good condition and that they were delivered by carrier to consignee in a worthless or damaged condition, and fact that shipper failed to prove unnecessary allegations of carrier's negligence in handling shipment did not preclude shipper from recovering.
10. APPEAL AND ERROR.
Where carrier sued for damage to shipment of skunk pelts or furs in transit claimed that damage was caused by inherent vices in that maggots were present in fursacks, reviewing court was required to accept preponderant testimony of witnesses who were believed by jury and who testified that maggots do not damage furs.
11. CARRIERS.
Where damage to shipment of skunk pelts in transit had been sufficiently proved as to amount, carrier was liable for damage, notwithstanding that cause of damage could not be dependably ascertained from transcript.
APPEAL from the circuit court of Lamar county; HON. HARVEY McGEHEE, Judge.
Heidelberg Roberts, of Hattiesburg, for appellant.
It is error to grant an instruction which has no substantial support in evidence. If any material part of an instruction has no substantial support in evidence, it is an erroneous instruction and a request therefor is properly refused.
Interstate Life Acc. Co. v. Cooley, 150 Miss. 502, 117 So. 267; Burnley v. Mullins, 38 So. 635, 86 Miss. 441; Mobile, Jackson Kansas City R.R. Co. v. Jackson, 46 So. 142, 92 Miss. 517; A. V.R.R. Co. v. Baldwin, 52 So. 358, 96 Miss. 52; Davis v. Heck, 79 So. 59, 118 Miss. 74; Williams v. City of Gulfport, 163 Miss. 334, 141 So. 288.
There is no evidence to support negligent handling of the shipment by the Express Company. The record is full of positive testimony that the shipment was handled in the same manner as shipments of like kind through the years theretofore.
Under the facts in this case, the trial court should have directed the jury to find for the defendant. In this case the plaintiff predicated his suit upon the contention that the Express Company had negligently permitted the furs in question to come in contact with an excessive amount of heat. A great mass of the testimony furnished in behalf of the Express Company was not rebutted in any way whatsoever. This testimony was clearly to the effect that the furs were not exposed to heat while in the possession of the carrier.
Pennsylvania Ry. Co. v. Chamberlain, 53 S.Ct. 391.
We feel that this court in applying the federal rule will hold that the desired inference of negligence sought to be established by the plaintiff was precluded by the positive and uncontradicted evidence of unimpeached witnesses, consistent with the facts actually proved.
With respect to perishable goods which themselves contain the elements of destruction governing their loss or deterioration, the carrier is not an insurer, and is no more liable for destruction or injury resulting solely from the inherent infirmity in the goods than for loss entailed solely by an act of God, or the public enemy, or the carelessness of the shipper; thus the carrier is not liable for loss or injury due solely to such causes as fermentation, decay, spontaneous combustion, effervescence, putrefaction or explosion. The measure of the carrier's duty is to exercise reasonable care and diligence to protect the goods from loss or injury while in its custody, and it is liable for only such deterioration as is attributable to its negligence.
10 C.J. 121-122, par. 148; Nelson v. Woodruff, 17 L.Ed. 97; Adams Express Co. v. Croninger, 57 L.Ed. 314; Chase Co. v. Atlantic Coast Line R.R. Co., 115 So. 186.
It is the general rule that where negligence is alleged and the pleader sees fit to specify the acts of negligence, he will be confined in his proofs within the limits of his specification. The plaintiff furnished no testimony whatsoever to support the material allegations of his declaration.
Gulf Coast Transportation Co. v. Howell, 70 So. 567.
The measure of the carrier's duty is to use reasonable care and diligence to protect the goods from loss or injury while in its custody, and it is liable for only such deterioration as is attributable to its negligence.
Mobile, Jackson Kansas City R.R. Co. v. T.J. Phillips Co., 103 Miss. 536, 60 So. 572; 10 C.J., page 120; Allen Co. v. M. O.R.R. Co., 102 Miss. 35, 58 So. 710; So. Ry. Co. v. Prescott, 60 L.Ed. 836; Y. M.V. Co. v. Delta Groc. Cotton Co., 98 So. 777, 134 Miss. 846.
We are not unmindful of the fact that the defense interposed by appellant respecting the inherent nature of the goods, the act of God, and the like, constitutes an affirmative defense. We feel that there was no need on behalf of appellant to present an affirmative defense for the reason that appellee failed to prove the charges of negligence set forth in the declaration and was therefore not entitled to recover. However, the carrier not only furnished testimony which was uncontradicted wherein negligence was negatived and it was shown that the shipment was handled properly throughout, but also furnished testimony in support of notice under general issue wherein it was charged that the hides were infested with blow flies before shipment and that the weather conditions, inherent nature of the goods and spontaneous combustion resulted in the damages, if any, complained of.
10 C.J., page 121.
The verdict of this case is based upon conjecture alone as against the Southeastern Express Company, and being so based, we urge that it must not stand.
Tyson v. Utterback, 122 So. 496, 154 Miss. 381; Burnside v. Gulf Refining Co., 148 So. 219, 166 Miss. 460; Y. M.V.R. Co. v. Greene, 147 So. 333, 167 Miss. 137; Hercules Powder Co. v. Calco, 138 So. 583, 161 Miss. 795; Columbus Greenville R.R. Co. v. Coleman, 160 So. 277, 172 Miss. 514; Cudahy Packing Co. v. McPhail, 155 So. 163, 170 Miss. 508.
Where acts of negligence are charged the plaintiff is required to make proof thereof, and he must stand or fall upon the proof that he makes in support of the case presented to the court by the pleadings.
Stone v. Chicago, etc., R.R. Co., 128 N.W. 354; Willison v. Nor. Pacific R.R. Co., 127 N.W. 4; Farr v. Adams Express Co., 75 S.W. 183; Ficklin v. Wabash R.R. Co., 92 S.W. 347; Gulf Railroad Co. v. Wright, 87 S.W. 191; Texas, et al., R.R. Co. v. Stewart, 96 S.W. 106; Moore on Facts, pages 361, 530, 783, 863, and 1236.
We desire to call attention to certain additional cases, some of which are not livestock cases, wherein it has been held that one must stand or fall upon his pleadings, and that if he fails to support the charges of negligence made in his declaration he cannot recover.
New England Fruit Produce Co. v. Hines, 116 A. 243, 97 Conn. 225; Bromberg v. Chicago R.I. P.R.R. Co., 190 N.W. 955, 194 Ia. 337; American Ry. Express Co. v. H. Rouw Co., 48 S.W.2d 220, 185 Ark. 526; Ozark Fruit Growers Assn. v. St. Louis-San Francisco R.R. Co., 46 S.W.2d 895, 226 Mo. App. 222; Myers v. Texas Land Development Co., 282 S.W. 919; Gulf C. Ry. Co. v. Ferguson, 52 So. 797, 97 Miss. 266; Gulf Coast Transportation Co. v. Howell, 70 So. 567, L.R.A. 1916D 974.
Plaintiff on appeal is bound by case made in his declaration, since he cannot make out one case in his pleadings and another by his proof.
Ozen v. Sperier, 150 Miss. 458, 117 So. 117; U.S. Cas. Co. v. Malone, 88 So. 709; Estes v. Memphis, etc., Ry. Co., 152 Miss. 814, 119 So. 199; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Griffith's Chancery Practice, 621, secs. 564 and 565; Miss. P. L. Co. v. Pitts, 179 So. 363.
The liability of a carrier is limited to loss, damage or injury to the property caused by the carrier. The carrier is not an insurer against loss.
10 C.J., pages 121, 122 and 131; Adams Express Co. v. Croninger, 226 U.S. 491, 57 L.Ed. 314, 44 L.R.A. (N.S.) 256; 49 U.S.C.A., Transportation, sec. 20, par. 11; American Ry. Express Co. v. Fegenbush, 144 So. 320.
There are numerous authorities holding that, having proved the loss to have accrued through one of the excepted perils, the carrier has prima facie relieved itself from responsibility and that negligence is not to be presumed but to be proved by the party who alleges it.
When the carrier has submitted evidence in support of any one or more of the defenses sometimes referred to as excepted perils, the burden shifts to the plaintiff to go forward with his case, and unless the plaintiff is able to adduce evidence tending to show that the carrier was guilty of negligence which proximately caused the loss, or which contributed to (a) the act of God shown, (b) the inherent vice or nature of the goods, or (c) the alleged act of the public enemy, then under the federal rule which is applicable in this case involving an interstate shipment, the court is required to direct a verdict for the carrier.
Memphis Charleston R.R. Co. v. Reeves, 10 Wallace, 176, 19 L.Ed. 909; The Vallescura, 55 S.Ct. 194, 293 U.S. 296; Chicago Northwestern R.R. Co. v. Whitnack Produce Co., 42 S.Ct. 328, 258 U.S. 369; N.Y. Central v. Beaham, 242 U.S. 148, 37 S.Ct. 43; Southern Ry. v. Prescott, 240 U.S. 632, 36 S.Ct. 469; Read v. St. Louis-K.C. N.R. Co., 60 Mo. 199; N.O. N.E.R.R. Co. v. National Rice Milling Co., 58 L.Ed. 1223; American Railway Express Co. v. Fegenbush, 144 So. 320.
The defendant in the trial court filed a plea of the general issue and thereunder a notice wherein it was charged that the sole cause of the alleged loss, if any, resulted from the acts or default of the shipper of the goods, the nature of the property, or defect or inherent vice therein, or improper or insufficient packing and natural causes over which the defendant had no control. No counter notice was filed by the plaintiff, appellee here, as provided by Section 536, Mississippi Code of 1930. Ample proof was offered to support the averments of the pleading, with no contradiction. If we assume for the sake of argument that sufficient testimony was offered by the plaintiff to put the case to the jury in the first instance, the trial court was faced with the record at the conclusion of the testimony where a perfect and uncontradicted defense had been presented and it was the duty of the trial court to grant the requested peremptory instruction.
Hall Hall, of Columbia, for appellee.
Defendant could not complain that instruction was in conflict with another instruction given, where, if there was any conflict, instruction was wrong and stated law more favorably to defendant than it was entitled to have it stated.
Hercules Powder Co. v. Tyrone, 124 So. 75, 155 Miss. 75.
The question of inherent vice or defect was simply one for the jury and the jury has found against the appellant on that issue. As supporting our view that the burden is upon the carrier to show that the damage arose from some excepted peril, see Southern Express Co. v. Moon, 39 Miss. 822; Railroad v. Abels, 60 Miss. 1017, and M. O.R.R. Co. v. Tupelo Furniture Mfg. Co., 7 So. 279, 67 Miss. 35, 19 A.S.R. 262.
The measure of the carrier's duty is to exercise reasonable care and diligence to protect the goods from loss or injury while in its custody, and it is liable for only such deterioration as is attributable to its negligence. Nevertheless, if it appears that the carrier's negligent conduct conduced to set the inherent infirmity of the goods in motion to the damage of the owner, it will suffice to fix the carrier with liability therefor. In other words, the exemption on account of the infirmity of the goods obtains only where the loss is solely attributable to such infirmity, for if the carrier's negligence commingles with the infirmity and contributes in part to the damage, liability is entailed therefor against the carrier for his negligent conduct.
10 C.J. 122; Hill Mfg. Co. v. N.O.M. C.R.R., 78 So. 187, 117 Miss. 548; Y. M.V.R.R. v. Craig, 79 So. 102, 118 Miss. 299; American Ry. Express Co. v. Pitts, 91 So. 570, 128 Miss. 875.
Under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C.A., Sec. 20 (11) as interpreted by the courts, it was only necessary for the appellee to prove shipment in good condition and arrival at destination in bad condition, but, anticipating that the company would defend on the ground of "inherent defects," we based the declaration upon negligence, and proceeded at the trial to prove negligence notwithstanding the fact that under the law the burden was upon the company to establish its defense and absolve itself from negligence.
The liability of a common carrier of inanimate freight or express is practically that of an insurer against loss, injury or damage, except as to the ordinary wear and tear necessarily incident to the transit, and except loss or injury caused by the act of God or by the public enemy, or public authority, or by the inherent nature or quality of the goods, or by the act or default of the owner or shipper himself.
We are familiar with the rule that in actions for loss or damage to a shipment of inanimate freight, it is not necessary for the plaintiff to allege or prove negligence on the part of the carrier; and we are familiar with the line of authorities which treat allegations of negligence as surplusage. However, we wish to call the attention of the court to the fact that the rule stated in 10 Corpus Juris, page 361, has no application here because appellee did not seek to introduce proof of any negligence except that specified in the declaration. This rule simply means that if the pleader specifies the negligence in his declaration he will be confined to this particular specification of negligence on the trial. A reading of the notes cited under this text will disclose that the rule has no application whatever to the case at bar, because the appellee here made but one charge of negligence, and has sought to rely solely on this charge.
It is the position of the appellee that his allegations of negligence on the part of the express company were sufficiently sustained by the proof to support the finding of the jury that the express company negligently placed the shipment of furs in question in proximity to the steam pipes in the express car; and it is the further contention of the appellee that under his undisputed proof that the shipment was accepted by appellant in good condition but was delivered in spoiled condition, that it was incumbent upon the appellant to prove affirmatively that the loss occurred within one of the exceptions of liability. With utmost deference to the court, we earnestly submit that under all of the evidence the jury was warranted in finding, as it did, that the furs in question were negligently placed on or near the steam pipes in the express car.
S. Valentine Co. v. Atchison, etc., Ry., 220 Ill. App. 188.
On the question of proof, we submit that the appellant wholly failed in meeting the burden which the rule placed upon it. The defendant plead as its defense the "inherent nature or quality of the goods." The plaintiff introduced testimony showing that the furs were accepted by the express company in good condition, but were delivered in St. Louis in spoiled condition. This proof is practically undisputed. The appellant having plead the inherent defects of the goods, it was incumbent upon it to affirmatively prove that the goods were in fact damaged from that cause.
Southern Express Co. v. Moon, 39 Miss. 822; Chicago, St. Louis N.O.R.R. Co. v. Abels, 60 Miss. 1017.
The courts have made no exception to this rule, requiring the carrier to affirmatively sustain its defense, in cases where the carrier has relied upon "an act of God" to absolve it from liability, and in these cases the courts have held the carrier must affirmatively prove that the loss or damage was in fact due to an act of God in order to avoid liability.
Spann v. A. V.R. Co., 74 So. 141, 113 Miss. 239; Chesapeake Ohio Ry. v. Crenshaw Co., 138 S.E. 467, 53 A.L.R. 990; 4 R.C.L. 701 and 702; 9 Am. Jurisprudence, sec. 662, pages 815-816-817.
In the case of Hogg v. L. N.R.R. Co., 127 S.E. 830, 33 G. App. 733, the Georgia Court held that specific acts of negligence need not be alleged, and if alleged, such acts of negligence need not be proven but may be treated as surplusage.
Deming v. R.R. Co., 138 Okla. 276; A. V. Ry. v. Thornhill, 63 So. 674, 106 Miss. 387; N.O.G.N.R.R. v. Walden, 133 So. 241, 160 Miss. 102.
Let us assume, for the purpose of argument only, that appellee's proof did not sustain his allegations of negligence; his proof did make out a case against the appellant, in that he showed an acceptance for carriage by the appellant of the furs in good condition, and a delivery of the furs at the point of destination in spoiled condition. These two facts cannot be disputed. The appellant failed to show that the damage was due to one of the causes excepted in its receipt. This proof is in the record and entitles the appellee to a judgment.
The appellee's prima facie case was not rebutted, and we submit that the failure of appellee to specifically prove the allegations of negligence, if the court should hold that he did so fail, would not relieve appellant of liability under the prima facie case so made out on the trial.
Section 568, Code of 1930.
Where the carrier relies upon the act of God, the public enemy, or the public authority, or the inherent nature or quality of the goods, or the fault of the shipper, as the reason for the loss or injury suffered by the goods, and as a defense to a recovery of him for the loss or injury, he must take the burden of so showing from the fact that he is in possession of the goods and in a position to be able to account for loss of them or injury to them. He cannot, however, be excused unless the loss or injury was the entire cause, for if his negligence contributed to the cause of the loss, and except for his negligence the loss would not have occurred, the carrier is not excused.
Merchants Transfer Co. v. Kisner, 179 Ky. 658, L.R.A. 1918C 658; Chouteaux v. Leech Co., 18 Pa. 224, 57 Am. Dec. 604.
We urge that it will not be necessary to reverse and remand this case in order to have the matter more fully developed in the evidence, because we earnestly feel that the appellee has made out his case by satisfactory proof of the allegations of negligence. But if the court should hold that these allegations were not sustained, then certainly under the Deming and Hogg cases, supra, the appellee is entitled to recover under his unrebutted prima facie case.
On January 13, 1937, appellee delivered to appellant, at Lumberton, in this State, a shipment consisting of a total of 1,031 skunk pelts or furs, same to be delivered for appellee's account to a named consignee, in St. Louis, Missouri. It was alleged and proved that said goods were properly packed and in good condition when delivered to appellant, and it is undisputed that when delivered by appellant to the consignee, 848 of said pelts were so badly damaged as to be entirely worthless.
The liability of a common carrier of inanimate freight or express is practically that of an insurer against loss, injury, or damage except as to loss or injury caused by the act of God, or by the public authorities or the public enemy, or by the inherent nature or quality of the goods or by the act or default of the owner or shipper himself. And as to the stated exceptions, the burden of pleading and proof is on the carrier. 9 Am. Jur. pages 813-818, 847; 10 C.J., p. 109 et seq.; 1 Michie Carriers, section 989; Yazoo M.V. Railroad R. Co. v. Craig, 118 Miss. 299, 315, 79 So. 102; Spann v. Alabama V. Railroad Co., 113 Miss. 239, 74 So. 141.
It follows that in an action for loss or injury to a shipment of inanimate freight or express, it is not necessary for plaintiff to allege or prove negligence on the part of the carrier. Nevertheless, appellee in the case here before us specifically charged the appellant with negligence, and particularly that appellant "negligently caused said furs to be placed upon and in close proximity to the hot steam pipes which supplied heat in the said (express) car or cars and negligently permitted the said furs to remain in that situation and exposed to a high degree of heat for a period of several hours," as a result of which, appellee averred, the loss and damage occurred.
On the trial appellee failed to prove the specific negligence charged; and now appellant insists, as its chief contention, that it was entitled to the peremptory charge requested by it, the argument by appellant being, in effect, that appellee having gaged his legal battle on the issue of negligence, as the gist of his cause of action, and having failed to sustain that issue, appellant is entitled to the award of a verdict. The contention, upon first approach, is liable to be considered plausible, and we think it merits more than a cursory discussion.
The rule is fundamental, of course, that when a plaintiff has alleged and proved the facts essential to a recovery, he is entitled to judgment. It follows that it is unnecessary to allege or prove more, and that if more than enough be alleged, the unnecessary allegations will be treated as surplusage. It follows further that an unsuccessful attempt to prove the surplus allegations will not defeat the plaintiff; for having alleged and proved enough he is not to lose his case merely because he alleged but failed to prove more than enough. Under our statutes abolishing forms of action and requiring that merits only shall be considered, section 521, Code 1930, the rule goes so far that a recovery may be had in contract, if the allegations and proof support such a right, although the declaration sounded in tort. See Connor v. Philo, 117 App. Div. 349, 102 N.Y.S. 427. And see particularly Mississippi Power Light Co. v. Pitts, Miss., 179 So. 363.
Sufficient of the authorities on this point are grouped in the notes 49 C.J., pp. 787, 788. It will be observed that it is stated in that text that "unnecessary allegations which are relevant to, and enter into, the foundation of a cause of action or defense must be proved, if put in issue." Here it is that the confusion has arisen whereby the bald but erroneous statement is sometimes found that a plaintiff must prove every principal fact which he has alleged, else he shall not recover, and even though otherwise some of such facts were not necessary to the maintenance of the cause of action.
There are many cases where when certain leading or basic facts are alleged and proved, certain other facts are thereby presumed to exist. When the plaintiff has alleged and proved the said leading or basic facts, it is not necessary for him to allege or prove the presumed facts, although their existence is necessary to his case. But if instead of relying upon the presumption, he allege the facts which would otherwise be presumed and upon attempting to prove them fails to do so, he cannot recover, — for these facts were necessary to his case; he abandoned the presumption and failed to make the proof in the place thereof.
An illustration of this may be found in Smith v. Kirkland, 89 Miss. 647, 42 So. 285. A trustee's sale of land is presumed to have been made upon due notice, as required by the trust deed. A party relying upon a title obtained through such a sale need not allege or prove notice; but if he abandon the presumption and attempt to prove due notice and fail therein, he cannot prevail, for due notice of sale was and is essential to the validity of his title. If, however, in such a case the party had alleged and attempted to prove that a large concourse of people were present at the sale and that the bidding was spirited, his failure in the attempt to make that proof would not defeat him of his title because the existence of such alleged facts was not necessary to the validity of the sale.
Thus, to summarize it as briefly as may be, the rule is: Facts not essential to plaintiff's case need not be alleged or proved; but if alleged and the proof thereof fail, this still will not affect his right of recovery. Facts essential to plaintiff's case when alleged and attempted to be proved must be proved, although otherwise it would have been unnecessary either to allege or to prove them. So here, when plaintiff proved that he delivered the goods to the carrier properly packed and in good condition, and they were delivered by the carrier to the consignee in a worthless or damaged condition, he has proved enough so far as the issue of liability is concerned, and it is immaterial that he failed to prove the unnecessary allegation of negligence.
Appellant defended further upon the ground that the loss or damage was caused by vices inherent in the nature or quality of the goods and present therein when delivered to appellant. In about four hours after the delivery of the shipment to appellant, it was discovered that maggots were present in the sacks containing the furs, and after about nine or ten hours, these maggots had appeared in large numbers. On the delivery the next morning at St. Louis the shipment was filled with them. As against this fact, however, a number of witnesses who were experienced by trade or occupation in the handling of furs testified that maggots do not damage furs. Two witnesses asserted to the contrary, but the preponderance of the testimony was to the effect first aforesaid; and whatever might be our personal opinions as to whether this testimony is entirely reasonable, it is not of a matter of common knowledge, or common observation, or common experience which would enable us to pronounce it inherently incredible, and we must accept, therefore, the preponderant testimony of these witnesses, the jury having believed them and acted on their said testimony.
The proof having failed to show that the damage was done by exposure to steam pipes, and having failed to show that it was caused by vermin, and nothing else amounting to more than conjecture having been suggested, the result is that it cannot be dependably told from the transcript how it happened, with the further result that as one of the risks of its business, appellant must pay for the damage, which we find upon a careful examination of the record to have been sufficiently proved as to amount.
All the other assignments have been examined, and we find no reversible error in them.
Affirmed.
McGehee and Anderson, JJ., disqualified, take no part.