Lehman, Stern & Co. v. Morgan's L. & T. R. R. & S. S. Co.

DUFOUR, J. The plaintiff claims damages for certain cotton destroyed by fire which wTas transported hither from Shreveport by the defendant and which was in course of delivery when the accident occurred. , It is conceded that the amount claimed, correctly represented the loss, but liability is denied on the ground that the railroad company used due diligence in protecting the cotton, and is therefore not responsible for the loss. The law of the case is to found in Arts. 2751 and 2754 R. C. C., which reads as follows: “Carriers and watermen are liable for the loss Dr damage of the things entrusted to their care, unless they prove that such loss or damage has been occasioned by accidental or uncontrollable events/5 2754 "carriers and watermen are subject, with respects to the safe keeping and preservation of the things intrusted to them, to the same obligations and duties which are imposed on tavern keepers in the title of Deposit and Sequestration/5 2751, The question now tendered is whether the carrier must show, under the jurisprudence, exactly how the damage occurred-and 'specifically trace it to some particular accident or Uncontrollable event, or whether he is exonerated by proof of due diligence on his part. In support of the former view, the plaintiff cites a decision which undoubtedly sustains his contention: “Where the common carrier is unable to make good his defence upon some of the grounds which form exceptions to the liability, it is clear he must pay the loss, although not chargeable with any negligence whatsoever, and in fact even where he -has exercised every possible diligence to prevent the loss/5 The court then goes on to say that the words “eas fortuif’ and "force majeuro55 are used in the civil law in the same sense that [238] the words “act of God” are used at the common law, and in support of the doctrine just quoted, cites Story on Bailments, Angelí on Carriers, Kent’s Commentaries, and a decision of the Supreme Court of Delaware. Brousseau vs. Ship Hudson, 11 An. 428. That decision would appear to hold that under the very text of our Code, a carrier is an insurer as at that common law, and it does not refer to Hunt vs. Morris, 6 Martin (O. S.) 676, in which the Court used the following language: “The rule by which the responsibility of carriers for loss or damage is to fee ascertained, is found in the part of the Code just cited (R. C. C. 2754). They are excused by accident, or overpowering force, eas fortuit on force majeure, whereever the first does not occur by their negligence, and they do not unnecessarily go in the way of the latter; in other words, if they have used that due diligence in the performance of the contract, which the nature of their situation requires. It appear by the expression of the Code, that the accident or overpowering force must be proven by the carrier, in order to excuse 'his failure to perform his undertaking, according to agreement. In the cases, where' the loss or damage arises from occurrences entirely beyond the control of the carrier, such as an attack by the public, enemy, a storm or tempest, it is enough for him to prove the fact, and he who claims compensation for the loss is to prove the fault or misconduct of the carrier, in order to recover against him. “But in those cases, which are not readily supposed to happen without negligence, such as a loss by fire, robbery, etc., the cor-rier is bound to show, that they happened without and fault or negligence on his part, which, being a negative proposition, can only be established by evidence of the ordinary care and attention, usualh' given by diligent men on like occasions. This rules gives to the plaintiff the advantage of implied or presumptive evidence of negligence, on the part of the masters and owners, which they [239] are bound to disprove by showing due diligence.” We do not find that Ship Hudson has ever been, either directly, affirmed or overruled in any subsequent case. In 14 An, 430, it was said that “tihe goods are delivered into the possession of the carrier, and it is for him to show that he used due care.” In 15th An. 103, though it is stated that injury being proved, the burden of proof was on the carrier to show that the injury was caused by accident or vis major, the decision appears to have been rested on proof of carelessness or unskillfulness of the crew, in' 18 An. 107, the carrier was made to carry the burden of proof that he had used exact diligence in the preservation of the goods, in 20 An. 302, the common carrier was held bound for ordinary negligence, in 23rd An. the defendant proved that the accident was not owing to any fault of theirs. In Darrell vs. S. P. Co., 47 An. 1455, it was said lhat our cocie ■does not impose upon carriers the .responsibility incident to the relation under the common law.” In Maxwell & Putnam vs. R. R. Co., 48 An. 385, the Court referred to Arts. 2751, 2754, 2967, 2937, 2938 as defining the responsibility of carriers in this State and reviewed some of the cases on the subject. No reference is made to Brousseau vs. Ship Hudson supra, but Hunt vs. Morris is approvingly cited as holding that the responsibility of the carrier must 'be considered as that of a bailee for hire answerable for ordinary neglect. This is the last utterance of the Supreme Court, of which we have any knowledge, on this subject, and we shall follow it. It is said that the language referred to is obiter, the decision in that case having been rested On the proof that the railroad company had been negligent. It is sufficient answer to say, that the Court deliberately undertook to define the responsibility of carrier's, and to apply the principles it announced to the facts presented. ■On the facts of the case the District Judge said: [240] February 20, 1905. 1. The responsibility of the Common Carrier for loss or damage of the thing intrusted to him for carriage, is the same under the Civil Lav/ as iL is at Common Law. 2. The term ‘‘Cas Fortuit” is, in law, synonymous with the expression "an act of God." , “The presumptive negligence on the part of defendant has been destroyed by the positive evidence given by it that ordinary care and attention usually given by diligent men on like occasions were exercised by it on this occasion. The cotton was placed in the usual safe place for freight, it was covered by tarpaulins and a watchman was placed in charge over it. The cotton could not have been ignited by sparks from passing locomotives belonging to defendant, for none passed the cotton, except those which were equipped with spark arresters, and no one except employee’s o£ plaintiff and defendant were near or 'had been near the cotton when the fire occurred.” We find no error in his conclusions of law and of fact, and his consequent exoneration of the defendant from liability. Judgment affirmed. Writ granted by Supreme Court. Reversed by Supreme Court.