88 So. 60 | Ala. Ct. App. | 1920
The first assignment of error is based upon the court's refusal to give, at the request of defendant, the general charge. The first three counts claimed damages for a nondelivery, and the fourth and fifth for negligent handling. Even if there had been no evidence to sustain the first three counts, the court would not be put in error for refusing a requested general instruction, directed at the entire five counts of the complaint, where there was evidence tending to prove the allegations of the last two. But in this case there was some evidence tending to prove that no delivery of the sow in question was ever in fact made, and there was sufficient evidence to submit the question of negligence to the jury. That being the case, the refusal of the court to give the general charge as requested was not error.
The chief insistence of appellant is that the court committed error in the giving, at the request of plaintiff, the following charges:
"The burden of proof is on the defendant express company to show that it properly fed and watered said hog, while in its custody," and, "The burden of proof is on the defendant to show that it properly cared for said hog while in its custody."
The facts show that the defendant, a common carrier, received from plaintiff at Fernwood, Miss., a sow heavy with pigs and weighing 500 pounds and properly crated, to be delivered to plaintiff at Orville, Ala., for a reward, and during the transportation period the hog was under the exclusive supervision and control of defendant. All jurisdictional facts were admitted. Plaintiff's evidence tended to show that the hog, when delivered to defendant, was sound and in good condition; that upon its arrival at Orville some 27 hours afterwards it was suffering from overheat and lack of water, and from the effects of this, although properly treated, it died. It was also shown that the weather was hot and there was some evidence going to show that the hog needed attention at Selma (an intermediate point), which fact was known to defendant, and that none was given. It is insisted by appellant that, this being an interstate shipment, the carrier would not be guilty of negligence in failing to water the hog until it had been in transit for more than 28 hours, that being the time limit fixed by federal statute at which a penalty is fixed for a failure to do so, unless it be shown by plaintiff that the hog needed to be watered. The opinion in Southern R. Co. v. Proctor,
"Its failure to perform the duty imposed upon it by the statute is negligence per se."
But that case is not an authority on the burden of proof as affecting the case at bar. The value of the hog shipped having been agreed upon by the parties, and the rate fixed in accordance with the value, it is specifically provided by the federal statute (1915-1917, 39 Stat. 1, c. 301, p. 441 [U.S. Comp. St. § 8604a]) that a special contract of shipment may not be made relative to certain live stock (including hogs) so as to release the carrier of any of its common-law duties, or restricting the valuation. This then leaves the carrier as an insurer, under the rule declared in A. C. L. R. R. Co. v. Rice,
We find no error in the record, and the judgment is affirmed.
Affirmed. *651
