Chicago, R. I. & P. Ry. Co. v. Logan, Snow & Co. , 23 Okla. 707 ( 1909 )

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 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, 51 Ala. 396;Jackson et al. v. Sacramento Valley R. Co., 23 Cal. 272;Richmond Danville R. Co. v. White Co., 88 Ga. 807, 15 S.E. 802; Cownie Glove Co. v. Merchants' Dispatch Trans. Co., 130 Iowa, 328, 106 N.W. 749, 4 L. R. A. (N. S.) 1060, 114 Am. St. Rep. 419; Micheals et al. v. New York Cent. R. Co., 30 N.Y. 564, 86 Am. Dec. 415; section 718, Wilson's Rev. Ann. St. Okla. 1903. Nor was there any evidence on the part of the defendant to show what condition the car was in after the flood, as to whether the seal was broken, or where located with reference to the freighthouse, or whether any of the merchandise placed therein immediately prior to the flood was missing from said car, and what the appearance of the same was immediately before and after the flood had subsided. It appears that where the car was standing the flood waters rose eight feet from the ground. The employes of the defendant that loaded this car may have had some knowledge as to where the goods of the character herein involved were located in said car. The fact that the testimony of such employes was not offered, and no more evidence was forthcoming from the defendant, upon whom rested the burden, and also to whom alone, if to any one, the evidence was accessible, may have caused the jury to conclude that the defendant had not discharged the burden resting upon it to explain what became of the goods, and to show by proof that the same were lost on account of the flood.

In the case of Charlotte, C. A. R. Co. v. Wooten et al.,87 Ga. 203, 13 S.E. 509, the court said:

"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,20 Okla. 662, 95 P. 420, this court held:

"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, 32 Ill. 117."

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. 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.