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,.
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.