105 P. 343 | Okla. | 1909
Lead Opinion
At the beginning of the trial the question was raised upon whom the burden rested in the trial of said cause, and it appeared that it had been stipulated and agreed between the parties thereto that the value of the goods involved in the action was as alleged in the petition, whereupon the court said: "My judgment is the burden is on the defendant to establish that they were lost in the flood. They plead it was an act of God." No objection or exception was taken to this ruling of the court, and that amounts, in view of the recitals of the answer, to an admission by the plaintiff in error that said goods were received by it, and that they were of the value as alleged. Under that status the plaintiff in error could not be prejudiced by the plaintiff's petition not being more certain in the respect complained of, and, if there was any error committed by the court in overruling said motion, it was without injury, and not a reversible one.
The burden being on the defendant to make out its defense under the issues joined, it will be observed that after the flood subsided the goods in question were never identified. They were not of the character of perishable goods which were "dumped." On the part of the defendant, the witness states that the goods that were badly damaged, and not capable of being identified, were supposed to be, or were probably, sent to the claim department at Chicago. Another witness says that the unidentified goods were sent to Chicago, but that all that he saw were not worth the freight charges, showing that he was testifying in part as to hearsay and not of his own knowledge. Nor is there any effort to show by any witnesses from the claim department that the unidentified *715
goods from said car were sent to Chicago, or what the condition of the same was — whether the damage was partial or complete, or whether they were not damaged, but incapable of being identified. The unidentified or damaged goods sent to Chicago were doubtless inventoried by the plaintiff in error, and, if so, it could have easily shown whether or not the damage was partial or complete; and, if not damaged, but no means of identification, it could have been shown. All this was peculiarly within the duty and power of the carrier. Whenever a carrier claims that the loss occurred on account of a flood, so extensive as to come within the exception of an act of God, or irresistible superhuman cause, and therefore excusing the carrier, the burden of proving this fact rests upon him. Hutchinson on Carriers (3d Ed.) sec. 287, p. 340, and authorities cited in footnote 43; Moore on Carriers, 1906, § 3, p. 301; Ray on Negligence or Imposed Duties, Common Carriers, §§ 2, 10; Montgomery West Point R. Co. v. Moore,
In the case of Charlotte, C. A. R. Co. v. Wooten et al.,
"The question is whether the goods lost by the carrier and never delivered should be paid for as sound or as damaged goods. If they were damaged, it was by a freshet, and without fault of the carrier. The goods not lost or stolen were damaged; but there is no direct evidence that those which disappeared were damaged, or, if so, to what extent. So far as appears, they were never seen during or after the freshet, and, consequently, to say that they were damaged when the carrier lost possession of them would be a mere conjecture. They might or might not have been stolen during the confusion in business occasioned by the freshet, and when stolen they may or may not have been damaged. It seems that the burden of proof on this subject must necessarily rest upon the carrier. It had the custody of the property, and that custody has been lost. Exactly when does not appear. We can discover no reason for holding that, under the evidence, the jury made any mistake in finding the value of the goods as proved, irrespective of the mere chance that their value may have been impaired before they were lost."
In the case of St. Louis S. F. R. Co. v. Jamieson,
"Where the evidence in a case leaves it doubtful whether the particular carrier who is sued for the loss of goods, or another from whom that carrier received the same, is liable, the Supreme Court will not disturb the finding of the jury.Illinois Central Railroad Co. v. Cowles,
This holding was made unquestionably for the reason that it was peculiarly within the power of the carrier to show on the line of what particular carrier the liability for loss or damage arose, and, failing to discharge its burden of proof, except to the extent to leave it doubtful as to the particular carrier causing the loss, this court would not disturb the finding of the jury. The same rule would apply to a carrier in trying to discharge itself by showing that there was a loss through an act of God. *717 If it discharges the burden only to the extent of leaving it doubtful as to whether the loss was by the flood or through some other means, or that merely the consignment address upon the boxes bad become unintelligible, and that the goods supposedly or probably had been sent to the claim department at Chicago, and no slowing made from that department with reference thereto, the finding of the jury against such carrier, under such circumstances, on review in this court, should not be disturbed.
In this case it is to be assumed that the issues joined were submitted to the jury under proper instructions. The jury found the same against the defendant, and, in view of the testimony, we do not feel that we would be justified in holding that as a matter of law the jury erred in its findings.
The judgment of the lower court is affirmed.
Kane, C. J., and Hayes and Turner, JJ., concur.
Dissenting Opinion
In the conclusion reached by the court holding that the evidence in this case fails to establish the destruction of the goods by the flood, I am unable to concur. The evidence on this proposition is entirely from the defendant, and its agents and servants. It is undenied, is reasonable, fully corroborative of itself, and there is nothing to detract in any particular from its full probative force. To my mind it conclusively shows that the goods in question were received by the company and promptly placed in a sealed car; that the flood submerged the ground where this car stood to a depth of eight feet; that, when the car was opened, the marks on the packages within which these goods were contained were so obliterated as a result of the flood that they could not be distinguished. To show the muddy character of the water and its effects on property with which it came in contact, witness Chaplin, from whose testimony the majority opinion quotes, further testified, in answer to interrogatories, as follows:
"Q. After the water subsided, how did it leave the freighthouse of the Chicago, Rock Island Pacific Railway Company and in the cars that were standing in the yards adjacent thereto? A. On the freight in the freighthouse it left a deposit of mud from *718 one to three feet deep. The goods that were capable of being damaged by mud and water were practically ruined. In a lot of cases I noticed they were broken open, and the goods were simply a mass of mud. Q. State what effect the water had on the goods themselves and the marks with reference to the identification after the flood. A. The water seemed to have erased all the marks, or it did in a great number of cases erase all marks, and when we unloaded goods we had a gang of men scrubbing off the boxes and trying to find the marks. The majority of the freight we couldn't find the marks on. We washed them off the best we could."
The matters submitted in this case for the determination of the court, it occurs to my mind, should be decided upon a reasonable, common-sense basis. The petition shows that the goods which were contained in this shipment were made up of $285.72 worth of fancy ribbons, $34.06 worth of fancy dry goods and notions, $60.98 worth of glove-fitting corsets, and $27.63 worth of black hats and caps. The testimony is that goods that were plainly marked were taken up with the consignee, and in most cases disposition was made of them. Those which were entirely worthless, such as crackers, etc., were dumped in the river, and goods such as were in this shipment, which the parties were unable to identify, probably went to Chicago, and the same witness further testified that all the unidentified goods were sent to Chicago and all that he saw were in such a shape that they were not worth the freight charges. It seems to me that it is a matter of simple common sense when we consider the character of these shipments, the class of goods which made them up, that, when packages in which they were contained were soaked by the waters of this flood to such an extent as to entirely obliterate the marks, it would result in the total destruction of the marketable value of the goods. Of what value could hats and caps, fancy ribbons, and glove-fitting corsets be, after being submerged for a week or ten days in the muddy waters making up that flood? This testimony being undisputed, being reasonable, and fully corroborated, to my mind establishes beyond cavil or question that these goods were, as contended by defendant, *719 destroyed in a manner under which it was relieved of responsibilty.
The suggestion that there is no evidence showing the condition of the car after the flood as to whether the seal was broken or as to whether any merchandise placed therein was missing from the car, and suggesting this as a basis for liability, involves a journey into the realm of mere conjecture and guess, which to my mind is not justified by the claims of the parties or within the issues. To hold that a party in whose hands goods are placed which are then involved in a flood of the magnitude of this, being clearly an act of God, is liable for their value when he does not produce, fully identify, or more fully account for them than is here done after the occurrence is over, is virtually to lay down the rule that the greater the flood or catastrophe, and the more completely the property is destroyed, and the party's physical evidence annihilated, the more certain he is to be held liable.
Necessarily, disputed questions of fact are to be decided by a jury, and not by any appellate tribunal; but to my mind there is no room for dispute or difference on what the evidence in this case proves. The agents of the defendant, after the flood, were unable to find these goods and identify them; that is, select them out from the other submerged goods contained in the car with them. The conditions which brought this about for all practical purposes totally destroyed the goods. If, however, there was left a modicum of value therein, for this only should the defendant be held liable, and not for the full value. *720
