Noel Bros. v. Texas & Pac. Ry. Co.

DREW, J. Noel Bros., a partnership, sued the Texas & Pacific Railway Company for the sum of $1,083.30, with legal interest from August 28, 1925, claiming that on or about August 28, 1925, petitioner loaded thirty-three bales of cotton in defendant company’s, car No. 13162, at Gilliam, La., for transportation to Shreveport to be delivered to A. J. Ingersoll & Co.; that nine bales of the thirty-three were burned in said car while the car was on a spur track of the company in Gilliam; that the bill of lading, or contract, between the parties contained the provision that “the carrier or party in possession of any of the property herein described shall be liable as by common law for any loss thereof or damage thereto, except as hereinafter provided”; and that by said agreement the defendant bound itself as liable as at common law; that demand was made for payment of the claim, and that same was refused. Defendant denied the allegations of the petition generally, and set up that the fire which destroyed the nine bales of cotton originated in the shipper’s gin house and spread to the car containing the shipment of cotton, that defendant was in no way responsible for the origin of the fire, and that the spreading of the fire into the car containing the cotton was an act for which the defendant was not liable. The case was tried on an agreed statement of facts, which is as follows: “The plaintiff and defendant, represented herein by their respective attorneys, agree on the following statement of facts to be used in the trial of the above numbered cause: “1. It is agreed that the defendant is a common carrier of goods for hire. “2. It is agreed that the cotton destroyed by fire in T. & P. Car No. 13,162 on August 28, 1925, in the - town of Gilliam, was owned by the plaintiffs. “3. It is agreed that on August 28, 1925, the plaintiff loaded thirty-three bales of , cotton in the above numbered car on the ; morning of said date, and that the car i containing said cotton was on the private spur track of the plaintiff at Gilliam, Louisiana. “4. It is agreed that billing instructions, had been issued to the railway company’s agent by the shipper consigning the cotton to A. J. Ingersoll & Company at Shreveport. “5. It is agreed .that bill of lading covering said shipment had been signed by •the agent of the railway company at Gilliam but had not been signed by the shipper. “6. It is agreed that after the said cotton had been so loaded, on the same day at about 11:30 in the morning, a fire broke 'out in the gin house of Noel Brothers and spread rapidly to the car containing the cotton consuming the gin house and also destroying nine bales of the said thirty-three bales loaded in T. & P. car 13,162, and that the defendant could not have moved said ear out of the pathway of said fire before same ignited. “7. It is agreed that said fire originated from an unknown cause. “8. It is agreed that no freight train passed the track on which the car was. standing between the time when the loading of the cotton had been completed and issuance of the bill of lading requested, and the time when the fire broke out. “9. It is admitted that said nine bales of cotton were of the gross weight of 4710 pounds; that said cotton was a part of a two hundred bale shipment sold A. J. Ingersoll & Company at Shreveport at the price of 23c per pound, making a total value of said cotton destroyed of $1,083.30. “10,- It is agreed that in interpreting the common law the courts may consult [624] decisions of common law states and jurisprudence of the United States courts and recognized works by text writers as to liability of a common carrier at common law. “Signed at Shreveport, Louisiana, on this 1st day of December, 1927.” The lower court rendered judgment in favor of plaintiff, and the defendant prosecutes this appeal. It is admitted, and there can be no doubt, tha-t, if -the common-law rule is applicable, defendant is liable. However, this shipment was an intrastate shipment from Gilliam, La., to Shreveport, La., and the common law does not apply. The case will have to be decided upon the law of Louisiana applicable to such a case. The last expression of the Supreme Court in this state upon this; subject is in the case of Dejean v. Louisiana Western R. Co., 167 La. 111, 118 So. 822, 823, a case similar-in many respects to the one before us. In that case plaintiff sued for the value of twenty-five bales of cotton purchased by him from the Rayne Cotton Gin Company and destroyed by fire while loaded in a car of the defendant company on a spur track near the plant of the gin company at Rayne, La. At the time of the fire, the cotton had been consigned to order of Rayne Cotton Gin Company, notify Armand L. Dejean, Opelousas, La. Plaintiff alleged that the loss of the cotton was occasioned solely from the gross negligence of defendant company, and was in no way due to his fault. Defendant denied any negligence on its part, and averred that the fire that burned the cotton had its origin in the gin of the Rayne Cotton Gin Company, and that the destruction of the cotton was brought about by “such accidental and uncontrollable event.” It specially averred in its answer: “That said cotton, no doubt, caught fire from either a match or a small piece of steel or other metal when the cotton was ginned, causing a spark to develop which was smothered when the bale was packed, and, afterwards burned its way out from the inside of the bale or bales, after said bales were placed in the car; or from a spark from the fire in the gin for which your defendant was not responsible.” The court said: “The liability of defendant company for the cotton received for shipment is fixed by article 2754 of the Civil Code, which reads as follows: “ ‘Carriers and waterman are liable for the loss or damage of the things entrusted to. their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrollable events.’ ” The court in interpreting the words “accidental and uncontrollable events,” as used in this article of the Civil Code, said: “They ai;e the equivalents of ‘cas fortuit’ and ‘force majeure’ of the French text. The ‘cas fortuit’ or ‘fortuitous event’ is defined as— “ ‘That which happens by a cause which we cannot resist.’ R. C. C. art. 3556(15). “ ‘Those accidents are said to be caused by superior force (“force majeure”) which human prudence can neither foresee nor prevent.’ R. C. C. art. 3556(14). “ ‘The term “vis major” (superior force) is. used in the civil law in the same way .that the words, “act of God,” are used in the common law, and so also is the term “casus fortuitus.” “ ‘By the act of God is meant inevitable accident or casualty.’ Brousseau & Co. v. Ship Hudson, 11 La. Ann. 427. “In the Brousseau & Co. case, the court quoted the following extract from Story on Bailments: “ ‘By “inevitable accident” is meant any accident produced by any physical cause, which is irresistible; such as a loss by . lightning or storms, by the perils of the seas, by an inundation, or earthquake, or by sudden death or illness. By “irresistible force” is meant, such an interposition of human agency, as is, from its nature and power, absolutely uncontrollable.’ “In Eugster & Co. v. West & Co., 35 La. Ann. 121, 48 Am. Rep. 232, the court said: [625] “ ‘The Pandectes Francaises teach that on entend par cas fortuits les accidens, qu’on n’a pu ni prevoir ni empecher. So Emerigon on Insurances, 285, by accident (“cas fortuit’’) is meant a superior force which cannot be foreseen nor resisted. In its legal sense, “fortuitous event” is synonymous with “act of God” of the common law.’ “ ‘The carrier must prove the precise cause of the loss. It will not suffice to prove merely due diligence, but the carrier must prove, moreover, .that the accident was occasioned by a fortuitous event, or by irresistible force, or by a defect of the thing itself, or by a fault of the shipper. Fuzier-Herman, Code Civil, vol. 4, p. 419, No. 1. * * * “ ‘In the civil law loss by fire is not considered a fortuitous event, as it arises almost invariably from some act of man.’ Lehman, Stern & Co. v. Morgan’s La. & Texas R. & S. S. Co., 115 La., pages 8 and 9, 38 So. 875, 70 L. R. A. 562, 112 Am. St. Rep. 259, 5 Ann. Cas. 818.” And held that the accident in that case was not occasioned by a fortuitous event nor by irresistible force, and that the defendant railway company was liable, even though it had exercised due diligence in inspecting .the shipment when received and in sealing the calf at the time. It is clear from this decision that the burden of proof was on defendant to prove the precise cause of the loss, and that the accident was caused by a “fortuitous event” or by “irresistible force” or by defect of the thing itself or by a fault of' the shipper, and it is not enough to prove want of negligence on its. part. In this respect, the defendant has failed. The statement of facts agreed upon shows that the fire originated from an unknown cause, and that the cotton was destroyed by the said fire which has been held not to be a fortuitous event, as it arises almost invariably from some act of man. As the accident in this case was not caused by a fortuitous event nor by irresistible force, defendant must be held to be liable. It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with all costs.