Russell v. Mobile & Ohio Railroad ( 1905 )

Whitfield, O. J.,

delivered the opinion of the court.

The plaintiffs, the appellants, purchased certain cases of oranges from parties in Plant, Florida. The sale was made f.o.b., and plaintiffs paid the full amount of the purchase price in advance. The oranges left the point of shipment on September 15, and, after having gone over the lines of four connecting carriers, arrived.in Meridian, Miss., utterly rotten and unfit for use. The evidence shows that reasonable time for shipment between Plant and Meridian, over this route, was about five days — from five to seven — and that fruit (oranges) had never before arrived in a damaged condition. In this instance it was delayed for about fifteen days, and the jury might very well have found that tbe damage to the oranges, in this instance, was due, not to their nature, as perishable, but to the delay. The bills of lading in this case were for through shipment from Plant to Meridian. The full freight rate was exacted and paid in advance. On the trial the appellee was permitted to interpose evidence, under Code 1892, § 4301, which evidence showed satisfactorily that the oranges had been damaged prior to their reception by the appellee, but failed to show on what road they were damaged. At the conclusion of the evidence both sides moved for a peremptory instruction.

The one side contended that the presumption raised by the statute (sec. 4301) was conclusive against appellee; the other, that it was only a prima facie presumption as against appellee. That section is in the following words: “If a common carrier receive freight for further transportation and delivery within this state from another carrier, on any contract, express or implied, for continuous carriage, and it arrive at the place of delivery in a broken or damaged condition, or some part thereof be lost or destroyed, it is the duty of the last carrier to obtain and furnish to the consignee, or other person interested, on demand, true copies of all notations, exceptions, records, and memoranda entered on the books of each carrier touching the receipt,' transfer, and handling of the freight while in transit; and if such last carrier shall not so furnish the same within thirty days after demand, it shall be presumed to have caused such damage, loss, or destruction; but in case of damage, loss, or destruction of perishable goods, by reason of their nature, and of damage not discoverable by outward inspection, proof thereof shall be admissible.”

The presumption raised by this statute is necessarily conclusive, save in two excepted cases. Where the statute provides that, in the two cases excepted, evidence may be admitted to rebut the presumption, it-of course prohibits the introduction of evidence in any other cases. “Expressio unius, exclusio allarms.” The omission of the word “conclusively,” in connection with the word “presumed,” is more than made up for by stating that in only two cases should evidence be admitted to. rebut the presumption. Another consideration shows this to be manifestly the true construction, which is that there was a prima facie presumption of liability on the part of the last carrier by the law as it stood before this statute; and it would have heen an idle performance for the legislature to pass a statute simply to announce a rule already established by this court in M. &. O. R. R. Co. v. Tupelo Furniture Mfg. Co., 67 Miss., 35 (7 South. Rep., 279; 19 Am. St. Rep., 262); Faison v. Railroad Co., 69 Miss., 569 (13 South. Rep., 37; 30 Am. St. Rep., 577).

There was evidence in this case from which the jury would have been well warranted in finding that the damage was due exclusively to the long delay_ in shipment, and not at all to the nature of the oranges as perishable. The statute authorizes the admission of evidence only where the damage is due to the character of the product as perishable. The court should have sent the case to the jury, with the instruction that if the jury believed from the preponderance of the evidence that the damage was due to the delay in shipment, and not to the- nature of the oranges as perishable, then they should find for the plaintiff.

Beversed and remanded.