Davis v. American Ry.Express Co. ( 1923 )

Charles F. Claiborne, Judge.

This is a suit to recover the value of goods not delivered.

Petitioner avers that on January 23rd 1920 at Plattsburgh La.he shipped through Ephraim Northern by the American Railway Express Op.defendant herein,a hog to be delivered to him at his address in New Orleans;that slid hog was dressed and In good oondition at the time of shipment)that said shipment arrived in New Orleans at about 7,30 P.M, on the same day;that on the next day January 24th and on the succeeding day January 25th he inquired about his hog at the office of the defendant in New Orleans,but was unable to Obtain any information)that on the following day January 26th he again called at-the offloe of the defendant when he was there told that the hog had been destroyed on account of Its decomposed oondition)that the hog was worth $200.00 ) that it was lost through the negligence of the defendant's employees.

The defendant admitted the shipment,but avwjw»d*that .hen the said hog was delivered to respondent,it was in suoh oondition that it deteriorated,notwithstanding proper handling)" it admitted that the hog arrived in New Orleans at about 7,80 P.M,of January 23rd 1920) it admitted that plaintiff was told that the hog had been destroyed,but denied all other allegations of the petition.

There was Judgment for plaintiff and defendant has appealed.

Ephraim Northern lives in the neighborhood of West Platteribuygh,We8t Feliciana;on the morning of January 23rd he and plaintiff herein killed a hog;he had known the hog for some three years and it was in fine oonditlon;he has raised hogs all his life;this hog was stabled and fed up for killing;they stabbed the hog,scalded him,and got all the Hair off of him, cleaned him white,gutted him,and washed him out olean with oold water;the weather was cool;a hog killed in that weather could not spoil in four or five days;the hog was packed in two sacks with two tags on eaoh sack with the addrees"From E.Northern, Plattenburg,La. To Ellis Davis.2236 Eighth Street New Orleans;

Davis was the owner of the hog;it weighed over five hundred pounds after killing;he and Davis took the hog to the Express Co.and delivered it about ^O'clock that evening,when the train came in;Davis went down On the train with the hog*; the hog was about three years old.

Ellis Davis corroborated Northern;he paid him $30» to fatten the hog ;after killing it they out it in two,and put each half in a sack;when they delivered the hog the man in the train took his knife and touched the sack to see if the meat was fresh;Platteriburgji is about 100 miles from New Orleans,he got on the same train as the hog at 2 O'clock and arrived in New Orleam at 7.30. that night;he saw the hog until the man took it off the train and put it in the depot,and he told him,he could get his hog early in the moming;he want down to the station and someone told him, the meat was transferred ,to the Union Depot; he went to the Un$on Station and saw Mr Surgi; on January -26th he agite called for his hog on Mr Surgi who told him the meat was spoiled and they had dumped/ it ; Mr Surgi sent him to the receiving office where he saw- Mr Tate;he went with the driver of the Company to the dump,but they did not see the hog;he would have to pay 60/ a pound for meat at the market thinks he could have sold it for 50/ but he asks for 40/ ; he had bought a large barrel to salt the meat,and would not have killed the hog if the weather had not been ooldjno one ever same to him to tell him that the hog was spoiled and had to be dumped.

On behalf of the defendant^L.G.Dessonnier testified that he is the traffic inspector for the defendant oompapyjhe made a report of the shipment whloh he produced;it is not dated/ it states that the consignee was E.Davis 2233 Eighth Street Hew Orleans ; two sacks dressed hog ; arrived January 23rd at Union Depot ; rotten and not fit for delivery,dumped ; weather real warm ; the report was made to R.G.Miller,olaimágejÉt,the odor of the hog was strong,they could hardly stand around it, // and when they" out the .sack it was full of maggots^e saw the hog on the morning of January 24th ; they ordered^taken to' the dump.

Claim agent,R.ff.Miller.adressed a letter dated hay 3th 1920 to the plaintiff herein informing him that his claim was deolined beoause the hog had arrived in a decomposed condition and they"would not be allowed to mw carry the hog through town in an attempt to make delivery,consequently it was consigned out to the dump without delay"!that the defendant's driver had oalled at his " house during the morning of January 24th to inform you (him ) of what had been done,and that he found no/i one at home."

F.Surgi,depot agent,said that he saw the hog on January 24th ; he smelled something very bad and he opened the saok and it was wormy,and he arranged with the wagon to take it out to the dump; the hog was very badly decomposed and wormy;if the hog had been in good condition it should'have been delivered on the 24th at it arrived on the 23rd ; Dessonnier and himself ■ condemned the hog;the weather was " very hot " on that day and the day before^'they did not send any notice to the plaintiff ; having a local address on the delivery ioute it was not necessary' to send a postal notioe;-he and Dessonnier oondemned the hog.’

It was admitted that if driver Weber,of defendant Company was present he would testify that he called at the house of Ellis Davis on January 24th to inform him that it was neoessary to dump his hog on account of its condition.lt was also admitted that if H.A.Bradley,Superintendent of Terminals^was present he ' would testify that he saw the hog,that it was rotten and working (reeking) with maggots and the odor was so bad that it was necessary to dump the hog.

The defendant mailed to the plaintiff on January 28th a postal card informing him that it held for his account meat ^ charge^ $2.49

The reports of the weather bureau U.S.Department,establih ed the following conditions of the atmospheres

January 23rd Maximum 80,Minimum 68-Mean 74-Wind S-part cloudy.

January 24th Maximum 7 Oyminimun. 48- Mean 59- Wind north east- Cloudy.

The temperature at six o'clook of the morning of the 23rd was 68 and rose gradually up to 80 at 3 o'clook P.M.,when it again fell to 63 on the morning of the 24th.

These incontestable figures completely contradict and destroy the testimony of Dessonnier and Surgi that the weather was on those two days "real warm" and "very hot".

The law of the case is as follows ;

All that plaintiff has to allege and prove is-that .the carrier undertoo^to oarry his good$and to deliver them,and that he failed to do it.lt is for the carrier^ to explain why.

5 R 138-2 R 403-24 A 333-50 A 857-115 La 1-113 La 1 132-La 615 (646 )-2 Hutchinson ( 3 Ed.) 741-1 Mlchie 654 .

Carriers are liable for the loss of the things entrusted to them,unles- they can prove that such loss was occasioned by uncontrollable eventsjl they are liable if the things are stolen by their servants or by strangers 132 La 615 --

" In an action against a common carrier for damages to goods,the proiBf must be clear and certain to relieve him from 11ability,that the damages did not arise while the goods were in his hands;for the presumption is against him,not only from the terms of the bill of lading,but from the policy of the law-. In suits against common carriers the testimony in their behalf of their clerks and servants must be received with great caution" Bond vs Frost 8 A-297 -14 A 224."

" The ship receipting for goods as in good order is liable for any dajgage subsequently discovered unless clearly proved to have occurred before delivery.2 H.D. 1427 Ros.2 and 4

In 2 La 333 the Supreme Court said; "It is the interest of such men( Architects ) to value services which they are in the habit of performing,at the highest possible rate;and there is sometimes an "esprit de corps" prevailing among them,formidable to the interest of proprietors,when any collision occurs between the latter and one of their body" 35 A 1132 ( 1138) .

"The Judge can disregard the testimony of witnesses, if he believes they are not telling the truth,and give judgment as if no evidence had been addneseed."13 La 412-14 A 224-24 A 332.

"The testimony of an attorney for his client is not full proof of a fact,particularly when the attorney would be personally responsible if the action fail,Such evidence has always been held to be of an inferior kind."7 A 580

If the testimony of Surgi is true,Bradley never saw the hog^as it was sent to the dump as soon as Surgi says he ascertained its condition.

It was admitted that Weber would testify that he went to plaintiff's residence to inform him that his hog had been sent to the dump;but it was not stated that Weber had seen the Hog,nor that he had carried the hog,to^i the dump.The only-witnesses therefore against the plaintiff and his disinterested witness,northern,are the two witnesses Dessonier and Surgi,both employeeXof the defendant and both interested' in discharging themselves from any responsibility in the matter for failure to deliver the hog.We prefer to beléfve the plaintiff and his disinterested witness,against these two interested witnesses.

Plaintiff's testimony is probable; the testimony of is BisBonier and Surgi ee exagerated and seems to us improbable. It has already been shown that their testimony was proven ineurreot in the matter' of the conditions of the weather.Their testimony is that it was warm.This oase was tried about a year after January 23rd 1920 and it is not probable» that they remembered■ the temperature on that day.Besides,the official records^that it was rather cool than warm.They testified that the hog smelled very strongly and was decomposed and wormy,The Station agent who received the hog at Plattenburg at 2 6'clock on January 23rd did not perceive any odor;the áefeHadnte defendants^agent who received and handle^the hog at the railroad station and at the Onion Stat/ion at 7.30 P.M. of the Bame day,did not smell anything^*it is inconceivable that the decomposition and smell and maggots should have set^twelve hours afterwards.The smell should have preceded the maggots by more than twelve hours.

Plaintiff swears he remained home all of the 24th,and that no one same to his.house from defendant company.According to Dessonnier and Surgi,this hog,of 'the value of §260.00 was condemned by them,and sent to the dump,before they notified the plaintiff.lt is impossible that these subordinate agents should have taken the responsibility of such action concerning an article of that value without consulting their superiors,or establishing the facts,if not with the plaintiff himself ,-at least with (disinterested witnesses.But if they did,their action was illegal. Plaintiff was entitled to a delivery to him of his hog,in good or baa condition.But the defendants say thit they would have violated the law by carrying a foul smelling animal through the •streets.They refer to no law or ordinance on the subject.But if there was such ají law,jithey would not have violated it any more by carrying the hog to its consignee .2236 Eighth Street than by taking it to the dump baok of town.But no witness is produced who threw the hog or who saw the hog thrown on the dump,

But the defendant's subsequent inaction in the matter does not Satisfy Us,that it made any efforst to ascertain the truth Of this caBe.lt was not until May^that it condescended to inform the plaintiff that it rejected tDfc claim.This evidenced a reoltlesa disregard of plaintiff’s rights which doeg. not put the defendant in a -favorable - >45*.'« The'burden was ujján the defendant to pi*5ve its ground cf defense 14 A 224-10 A 413. It has failed to establish it to our satisfaction.

The judge of the trial Oourt was of that opinion,and we agree with him.

Judgment affirmed.

January 28nd 1923