Spann v. Alabama & V. R., 74 So. 141

74 So. 141 | Miss. | 1916

Sykes, J.,

delivered the opinion of the court.

Suit was originally filed in a justice of the peace court in Rankin county by Hal Spann, the appellant here, against the Alabama & Vicksburg Railroad Company for damages to a piano shipped from Meridian, Miss., to Pelahatchie, Miss. Plaintiff obtained judgment in the justice of the peace court, and the defendant appealed to the circuit court. The trial in the circuit court resulted in a verdict for the defendant upon which judgment was entered, and from which judgment this appeal is prosecuted.

The testimony of the plaintiff in the court below showed that the piano was wrapped in a clean, dry sheet, packed in a piano box, and delivered to the agent of the railroad company at Meridian in good condition; that, about four days thereafter, the piano was properly hauled from the depot at Pelahatchie to the residence of the plaintiff, and when the piano box was opened and the piano taken out it was found that the wood on the front of the piano had become very badly blistered. The attention of the agent of defendant company at Pelahatchie was immediately called to the condition of the piano. In short, the testimony for the plaintiff shows that the piano was properly packed and delivered to the railroad company in good condition, and that it was in a damaged condition when received by plaintiff at Pelahatchie. The employees of the railroad company who testified in the case had no positive knowledge of the handling of the piano, but testified that from their records the piano was properly loaded at Meridian, placed in a suitable car which contained no freight that would cause injury to the piano, and was transported under seal from Meridian to Pela-hatchie. It was neither hot nor cold and did not rain while the piano was in the hands of the railroad company. The railroad company also attempted to prove that the piano was improperly packed; that it should have been wrapped in paper instead of a sheet. Section 1 of the bill of lading under which the piano was shipped, among other things, provides that'.

“Ño carrier or party in possession of any of the property herein described shall be liable for. any loss thereof or damage thereto or delay caused by the act of God, the public enemy, quarantine, the authority of law or the act or default of the shipper or owner,” etc.

The lower court submitted the question.of liability to the jury.

At the request of the defendant railroad company, the four instructions herein' copied were given:

“If the jury cannot say from the evidence that the defendant caused the injury, it is the duty of the jury to find for defendant, and the court so instructs; and if the jury find for defendant their verdict may be in the following form: ‘We, the jury, find for defendant.’

1 ‘ The court instructs the jury for defendant that, unless they believe from the evidence that the platintiff has shown the defendant injured the piano, the jury should find for the defendant.

“If the jury believes from the evidence that the cause of the injury is not known and has not been shown and that the piano was carefully and safely handled and transported by defendant, the jury should find for defendant.

“The court instructs the jury for defendant that, unless they can say on their oaths from the evidence that the injury occurred while the piano was in the hands of defendant, the jury should find for defendant.”

The giving of all four of these instructions was error. When the plaintiff proved that the piano was in good condition when delivered to the defendant and was by the defendant delivered to it in had condition, then it devolved upon the defendant to show that the damage to the piano did not occur while the piano was in its possession, or that, if it did so occur, then the damage was caused “by the act of God, the public enemy, quarantine, the authority of law, or an act or default of the shipper or owner.” The carrier attempted to prove that the damage was caused by the act of the shipper in improperly packing the piano. The burden of proof in this case to prove one of the above excepted causes rested upon the defendant.

“Proof of the delivery of the goods to the carrier in good order and their loss or injury makes it a prima facie case for the owner of the goods within this rule.” 6 Thompson on Negligence, section 7709.

“We think the better reason and policy and the greater number of cases adjudged favor the rule to require the carrier which delivers goods damaged, and which are' shown to have started on their journey over connecting lines of transportation in good condition, to exculpate itself from liability by showing that the injury did not occur by its default.” M. & O. R. R. Co. v. Tupelo Furniture Mfg. Co., 67 Miss. 35, 7 So. 279, 19 Am. St. Rep. 262.

“The burden was upon the defendant to show that the loss occurred without fault on its part, and this burden defendant failed to meet.” Southern Express Co. v. Seide, 67 Miss. 609, 7 So. 547.

The rules above cited are where the bills of lading or express receipts provided that the carriers were only liable when the goods were damaged on account or negligence. In the bill of lading in the instant case, however, the carrier is an insurer of the property and would for this reason have to show that the damage to the piano was due to one" of the excepted causes contained in its bill of lading above set out..

Reversed and remanded.