Louisville & Nashville Railroad v. Warfield & Lee

Evans, P. J. The questions propounded by the Court of Appeals involve matters of pleading and practice which were considered by this court in the case of L. & N. R. Co. v. Cody, 119 Ga. 371. If the ruling in that case be adhered to, we could on its authority give categorical answers. But a motion was made in the Court of Appeals to examine and review that case as bearing on the pleading and practice questions submitted to us, and we are requested by the Court of Appeals to review so much of that decision as relates to the matters certified to us for instruction. In the ease of L. & N. R. Co. v. Cody it was held that it is necessary for a plaintiff, who elects to bring an action ex delicto against a railroad company for damages arising from a failure on its part to properly perform its duties as a common carrier of live stock, to specifically allege, when called upon to do so by special demurrer, the particular facts upon which he relies ,ih support of his contention that the carrier was negligent touching the transportation of.live stock entrusted to its care for shipment. Is the principle there stated a correct rule of pleading? , At common law a common carrier is bound to convey the goods of any person offering to pay his hire, unless the carriage be already full, or the risks sought to be imposed upon him extraordinary, or unless the goods be of a sort which he can not convey or-is not in the habit of conveying. A common carrier was an insurer of the goods entrusted to his care, and was responsible for every injury sustained by them occasioned by any means whatever, ■except only the act of God and the king’s enemies. Fish v. Chapman, 2 Ga. 349. For the failure to safely transport and deliver goods an action might be brought against a carrier, either in assumpsit or in case. In assumpsit the action was for the breach of the contract to carry, and an allegation of the failure to perform was considered a sufficient averment of its breach. When the action was brought in case, it was founded on the breach of the public duty. The duty to receive and safely transport goods was originally implied from the custom of the realm. In the evolution of time it became incorporated in the common law of England, and an action ex delicto for the breach of duty implied by law was very generally pursued to recover damages for goods lost or damaged while in the possession of the carrier. The main difference between the form of pleading in assumpsit and case was that in the former [476] the liability was based upon a breach of contract, while in the latter it was for a breach of duty. In the forms of pleading approved by Mr. Chitty (2 Chit. PL (11 Am. ed.) *356, *652) the allegations of breach of contract and breach of duty were substantially in the same words, and were to the effect that the carrier so negligently conducted himself that through his carelessness the goods entrusted to his care became lost to the plaintiff. In Morse v. Slue, Sir T. Raym, 220 (5 Eng. Rul. Cas. 244), one of the oldest cases where the doctrine was stated that a common carrier was responsible for the safe carriage of goods at all events, except for loss occasioned by the act of God or the public enemy, the declaration, which was in case, alleged that “the carrier so negligently kept the goods that in default of sufficient care the same were totally lost.” In Coggs v. Bernard, Lord Raymond, 909, 1 Smith’s L. C. (9th ed.) 354, the action was on the case, against a gratuitous bailee, for goods lost in carriage by the neglect of the bailee, and the negligence of the mandatary was alleged in general terms. In declaring against a mandatary, Mr. Hutchinson says, the plaintiff need not allege the particular character or degree of negligence upon which he relies for his recovery, but the allegation of negligence generally is sufficient. 1 Hutch. Car. §34. There seems to be no doubt that at common law, in an action ex delicto, the plaintiff was not required to allege more than general negligence. . The common-law rule as to alleging negligence generally ■ is in force in many of the States. Lachner v. Express Co., 72 Mo. App. 13; Carlisle v. Keokuk, 82 Mo. 40; McFadden v. Mo. Pac. R. Co., 4 S. W. 689; McCauley v. Davidson, 10 Minn. 418; Great Western Ry. v. Hawkins, 18 Mich. 427; Peck v. Weeks, 34 Conn. 145; Long v. Brady (Conn.), 49 Atl. 199. The complaint in the last-named case alleged that the defendant was a common carrier; that the plaintiff delivered to him, as such common carrier, certain specified goods, to be carried from A to B, and there delivered to the plaintiff for hire; that the defendant neglected bis duty in that he did not safely carry and deliver the goods, and that the different articles carried were injured by default of the defendant, to the damage of the plaintiff. The defendant demurred to this complaint, because it alleged the several articles specified were injured by default of the defendant, without stating any fact to show in what his default consisted. The [477] court held, that as the action was for a breach of the duty imposed on common carriers, independently of contract, it was not necessary to allege particular acts of negligence. There is no statifte in this State which requires a plaintiff, in a suit against a common carrier for breach of duty in failing to safely transport goods, to allege particular acts of negligence. There are sound reasons why he should not be required to specify the particular acts of the carrier’s negligence, which caused the loss or injury to his goods. Where the law imposes an absolute duty, the failure to perform that duty to the damage of another raises a liability; and it would be superfluous to inquire into the causes that interfered with the discharge of the duty, when such causes would not relieve from liability. It is an elementary rule of pleading that the allegation of any fact which is not issuable .or jurisdictional is not demanded. When the carrier fails to deliver the goods entrusted to his care, no excuse avails him, unless it was occasioned by the act of God or the public enemies of the State. Civil Code, §2264. This was the common-law liability. The carrier may also set up 'as an excuse for the loss or injury of goods in his care, in case of live stock, the viciousness of the animals (Ga. R. Co. v. Spears, 66 Ga. 485); in the case of perishable articles, the natural deterioration of the object carried (Forrester v. Ga. R. Co., 92 Ga. 699), or the inherent vice in the goods; or that he is excused by the special contract made with the shipper (Boaz v. Central R. Co., 87 Ga. 463), or by statute; or negligence of the shipper. None of these excuses which the law’ recognizes relate to the degree of care which he must exercise in the performance of his public duty. To illustrate: Suppose the goods are destroyed by a collision of the cars of the carrier. It would be altogether idle to inquire whether the collision was caused by the carrier’s negligence; for be he ever so diligent, his diligence would not relieve him from, liability, unless he further shows that the loss of the goods is attributable to one of the causes which the law allows as an excuse for non-performance of his public duty. To require a specific allegation of negligence relating to the circumstances attending the collision would be to introduce in the pleadings a feigned and superfluous issue. Besides, the shipper has no means of knowing the facts relating to the loss of his goods, and it would be hard on him to demand an averment [478] of facts concerning which, from the very nature'of the transaction, he must ordinarily be ignorant. The rule stated in L. & N. R. Co. v. Cody is a departure from the common law, and it is based upon the four cited cases, none of which was a suit' against a carrier, for damages arising from the loss or injury of goods delivered to it for transportation. These cases concerned suits where damages were claimed for personal injuries because of the negligence of the carrier. We do not think the two classes of cases are analogous. The duty of a carrier of passengers to safely transport is not absolute. The carrier is bound to use extraordinary diligence to protect the lives and persons of his passengers, but he is not liable for injuries to the person after having used such diligence. Civil Code, §2266. So also, in the case of injuries to employees and to third persons, the duty is to exercise ordinary care; and when the carrier measures up to this duty, he is absolved of liability. Where damages are claimed of a carrier from a failure to exercise the diligence which the law enjoins, the lack of diligence of the carrier is the fundamental ground of the complaint. The authorities cited in the opinion of Mr. Justice Turner go only to the point that when the gravamen of the complaint is that the injury was caused by the failure of the carrier to exercise proper diligence, the carrier’s dereliction in that respect should be sufficiently set forth to put him on notice of the facts relied on to establish his negligence, in order that he may repel the charge against him. But where the action is against the carrier for a failure to perform his public duty respecting the transportation of freight, the gravamen of the complaint is the failure to perform such duty, and an allegation that he negligently failed to safely carry the goods, but delivered them in a damaged condition, sufficiently states the breach of duty. Accordingly we think that the decision in the Cody case should be overruled in so far as it militates with the views herein expressed. We have incorporated, in the syllabi, answers to the matters about which the Court of Appeals desired instruction. All the Justices concur„