77 So. 191 | Miss. | 1917
delivered the- opinion of the court.
This cause originated in the circuit court of Clay county. The declaration -was filed in that court on Dec
Issue having been joined on the pleadings as shown above, the plaintiff, in support of his declaration, produced certain testimony which appears in full in the record and the substance of which, for the purposes of this appeal, is now briefly stated: That three cars were loaded on the 18th of October and on the evening of the 19th of October. At this point it was sought to introduce the shipping contract made exhibit to the declaration, and to this introduction the defendant objected upon the ground that the Illinois Central Eailroad Company was the sole defendant, and the Yazoo & Mississippi Valley Eailroad Company, the initial carrier, was not a party defendant. The objection of the defendant was overruled, and the contracts were admitted in evidence. The .bill of lading was also introduced in evidence and appears in the record. They both show that the contract was one made with the Yazoo & Mississippi Valley Eailroad Company for an interstate shipment of four oars of cattle from Wilson, La., to West P'oint, ■Miss. The pattle were loaded at a switch track about one and one-half miles from Wilson, at a point called “Gfurlie.” It also appears from plaintiff’s testimony that the cattle were permitted by the initial carrier, the Yazoo & Mississippi Valley Eailroad Company to remain on the side tracks for a period of twenty-four hours because there was no engine there to pull them to the unloading chute. All of this was on the part of the Yazoo & Mississippi Valley Eailroad Company, the initial carrier. None of this evidence was admissible as against the sole defendant, the Illinois Central Eailroad Company, unless it be assumed that the two railroad companies are identical. Plaintiff
The entire claim of the plaintiff was for damages against the Illinois Central Bailroad Company on account of alleged shrinkage in the weight of the cattle, caused by delay in transportation. There was no proof and no effort to prove any delay or mishandling of the shipment by the Illinois Central Bailroad Company. The damage sustained was caused by the initial carrier, and if there was any unusual or unnecessary delay in' handling the shipment it occurred at Wilson, La., before the cars were delivered to the defendant, the Illinois Central Bailroad Company. There was no proof, and no effort was made to prove, that the defendant, the Illinois Central Bailroad Company, had any relation to the initial carrier other than as á connecting carrier, under a through bill of lading, and the whole case was tried upon the assumption, without proof, that the two carriers were one and the same, and that the Illinois Central Bailroad Company was liable for the default and alleged negligence of the Yazoo & Mississippi Valley Bailroad Company.
The main contention of the appellant railroad company here is that the lower court erred in allowing recovery in this case against the appellant, who was a connecting carrier and guilty of no wrong; that if there
“The appellant, defendant below, pleaded the general issue, thus acknowledging the contract as its own, by denying their guilt of the wrong and injury alleged. The appellant did not deny the allegation under plea verified, or otherwise. It was therefore unnecessary that the plaintiff in the court below should trifle with time and vex itself with proof in the face of this statute (section 1974, Code 1906) and the attitude deliberately taken by the appellant as defendant there. Hence there can be no virtue in the contention of counsel for appellant that no proof was offered of the fact charged, and that, therefore, the court erred in admitting the tes*437 timony relative to the delay at Wilson, La., plainly chargeable to the initial carrier. We therefore dismiss this phase of the controversy.”
It will be observed that the appellant, Illinois Central Railroad, pleaded the general issue and non assumpsit. When the issues were thus joined in the lower court it became necessary for the appellee, Walker, to prove the material allegation of his declaration that the appellee contracted with appellant through the Yazoo & Mississippi Valley Railroad for the shipment of the stock. As we understand the law, no recovery can be had in a case of this kind against the connecting carrier where the proof in the case conclusively shows that the delay and damage was caused wholly by the initial carrier. Mobile & Ohio R. Co. v. Tupelo Furniture Co., 67 Miss. 35, 7 So. 279, 19 Am. St. Rep. 262. The undisputed testimony in the case here shows that the appellant, Illinois Central Railroad Company, was the connecting terminal carrier, and was guilty of no negligence in handling the cars of stock; and that- the delay and resulting injury was due entirely to the negligence of the initial carrier, the Yazoo & Mississippi Valley Railroad Company. There being no pfoof in the record connecting the two railroads in such relation as to impose liability upon the appellant connecting carrier for the negligence of the initial carrier, we are bound to hold that the lower coijrt erred in permitting a recovery in this case.
It is suggested by the appellee that, in view of the fact that the proof in -other cases decided by this court shows that the Illinois Central Railroad Company was the owner or lessor of the Yazoo & Mississippi Valley Railroad Company, we should, in some way, take judicial notice of that proof for the purposes of this case; but we know of no rule that would justify us in so doing,
The contention of appellee that section 1974 of the Code of 1906 made it unnecessary that he prove the
“When Proof of Signature, etc.j Unnecessary. — In suits founded on any written instrument set forth in the pleading, it shall not be necessary to prove the signature or execution thereof, unless the same be specially denied by a plea, verified by the oath of the party pleading the same; and it shall not be necessary in any ease to prove any written signature, the execution of any instrument, or the identity or names of persons, or description of character, or the persons composing any firm or partnership which may be set forth in the pleadings, unless the same be specially denied by plea, verified by oath. And the like rule shall prevail, as far as may be applicable, in all cases where any writing is pleaded or set up by the defendant, or any signature, identity, or names of persons, description of • character, or partnership set forth in his pleading.”
We must annul the judgment of the lower court in this case on the ground mentioned. The error is more than technical; it is substantial. The two railroads here in question may be one and the same railroad company, but there is no proof of such fact in this record, and we cannot depart from the long-established rules of practice and procedure requiring that proof be made of such a material allegation. Therefore we reverse the judgment of the lower court and remand the case.
Reversed and remanded.