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shall cost not less than $5,000 for the resi- OKLAHOMA SUPREME COURT. dence alone.”

(Division No, 2.) The owner of the lot had constructed two dwelling houses and planned and purposed ST LOUIS & SAN FRANCISCO RAILto construct two more. This the court said

ROAD COMPANY, Plff. in Err., was prohibited by the restriction clause in HENRY M. DREYFUS et al., Doing Busithe deed.

ness under the Name Dreyfus Brothers. That the erection of a double or twofamily house is not in violation of a restriction that the property is to be used “for

(42 Okla. 401, 141 Pac. 773.) residence purposes only” is the holding in Tillotson v. Gregory, 151 Mich. 132, 114 Carrier loss - act of God. N. W. 1025; McDonald v. Spang, 55 Misc.

1. An act of God, such as a severe bliz332, 105 N. Y. Supp. 617; McMurtry v. carrier from liability for loss, must not

zard and snowstorm, which will excuse a Phillips Invest. Co. 103 Ky. 308, 40 L.R.A. only be the proximate cause of the loss, but 489, 45 S. W. 96. In the latter case the it must be the sole cause, and though the language used was: “The property herein loss may have been caused by an act of God, conveyed shall be used for residence pur- yet, if the negligence of the defendant composes only, and that, in erecting a residence mingles with such act of God as an efficient, therein, it shall be built of brick or stone." contributing, concurrent cause, and it apThe court say: "It is contended that the pears from the evidence and the circumlanguage of the restriction conveys the idea stances of the case that such injury would

not have occurred except for such negliof a single residence for a single family, or

gence, the company will be liable. at any rate excludes the idea of a num

Evidence loss by carrier burden of ber of residences under the same roof or

proof. in the same house. We think, however,

2. In an action for damages occasioned by that to give the language used this meaning would be to extend its scope beyond the ex

Headnotes by HARRISON, C. press intention of the parties. The purposes Note. Burden of proof when the defor which the houses to be erected on the

fense in an action to recover for loss court were to be used were ‘residence pur- or injury to goods during carriage is poses only. And as the house in contro- act of God or vis major. versy is to be constructed for such purpose This note is supplemental to the note to only, and is not to be used for any other | Chicago, R. I. & P. R. Co. v. Logan, S. & purpose, we do not think its construction | Co. 29 L.R.A.(N.S.) 663, where the earlier is at all prohibited by this restriction cases are collected. clause."

For duty of carrier where act of God has

occurred or is threatened, see the note to See also note by annotator, 45 L.R.A. Armstrong v. Illinois C. R. Co. 29 L.R.A. (N.S.) 726, 728.

(N.S.) 671. If the common grantor in the case before For carrier's liability for injury to live us had in mind the exclusion of a building stock by weather conditions, see the note for the abode of more than one family, he to Colsch v. Chicago, M. & St. P. R. Co. 34

L.R.A.(N.S.) 1013. should have used language that would have

As stated in the earlier note, the rule is expressed such intention. The court well settled that whenever a carrier seeks to cannot read it into the covenant.

excuse itself for loss occurring through an We do not think the clause under con- act of God or irresistible superhuman cause, sideration bears the interpretation given it inevitable accident, or the public enemy, by the court of appeals. Taking the lang- to establish such defense.

the burden of proof rests upon the carrier uage in its ordinary and popular sense, Thus, in Jonesboro, L. C. & E. R. Co. v. we are forced to the conclusion that it was Dunnavant, Ark. 174 S. W. 1187, not the intention of the common grantor in affirming a judgment upon a verdict for to prohibit the erection of a double or two

a shipper for damages on account of defamily house on the premises. Defendant lay, where the carrier claimed that it had in error was therefore not entitled to the had blocked its road, the court said: “By

not accepted the shipment until high water relief he sought, and his petition should the common law a common carrier is in efhave been dismissed.

fect an insurer of goods intrusted to it for Judgment of the Court of Appeals re- carriage while same are being transported, versed, and judgment for plaintiff in error. except when the loss occurs by the act of

God, of the public enemy, or public author

ity, or from the inherent nature of the Nichols, Ch. J., and Shauck, Johnson, goods, and the burden of proving that the Donahue, Wanamaker, and Wilkin, JJ., ( loss arose from any of these excepted acts

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rests upon the carrier."

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a delay in shipment, the burden is upon the RROR to the Tulsa County Court to plaintiff to make out a prima facie case review a judgment in plaintiffs' favor that the shipment was delivered to the car in an action brought to recover damages rier in good order and received from the for alleged negligent failure of defendant carrier in damaged condition; and where the carrier denies liability because such loss to deliver two separate shipments of ba

Reversed. was occasioned by an act of God, the burden is upon the carrier to show that such

The facts are stated in the Commissionloss was the proximate result of the act of er's opinion. God; but, when this is done, the burden then Messrs. W. F. Evans, R. A. Klein. shifts to the shipper to show that negli- schmidt, and E. H. Foster, for plaintiff in gence on the part of the carrier co-operated error: with the act of God in bringing about the A snowstorm such as the evidence shows damage to the shipment.

occurred at Tulsa on the night of FebruTrial jury - care of carrier.

3. Where a carrier seeks to avoid liability ary 15th is an act of God, for the consefor loss on account of a snowstorm, and quences of which the defendant is not rethere is conflicting testimony as to whether sponsible. such carrier, notwithstanding such snow

Cormack v. New York, N. H. & H. R. Co. storm, could, by the exercise of ordinary 196_N. Y. 443, 24 L.R.A. (N.S.) 1209, 90 care or reasonable efforts, have prevented N. E. 56, 17 Ann. Cas. 949; Denver & R. G. the loss, it is proper to submit such issue R. Co. v. Andrews, 11 Colo. App. 204, 53 of fact to the jury.

Pac. 518; Reed v. Duluth S. S. & A. R. Co. Evidence burden of proof care of 100 Mich. 507, 59 N. W. 144; People v. carrier.

Utica Cement Co. 22 Ill. App. 159; Evans 4. An instruction “that the burden of v. Wabash R. Co. 222 Mo. 435, 121 S. W. proof is upon the defendant to satisfy the jury by its evidence not only that the loss 36; Herring v. Chesapeake & W. R. Co. 101 sustained by the plaintiff ." was oc

Va. 778, 45 S. E. 322; Black v. Chicago, B. casioned by the act of God, but also that & Q. R. Co. 30 Neb. 197, 46 N. W. 428. “the defendant exercised due care and dili- Even where a common carrier is guilty gence in the performance of its duty, and of negligent delay in making delivery of was not in any manner negligent in doing or freight, if such freight is destroyed by an omitting to do any act that might have | act of God occurring subsequently to such averted the loss,” such instruction, being delay, the act of God, and not the delay, unqualified or unmodified by other instruc- would be referred to as the proximate cause tions, is an erroneous statement of the law.

of the injury. (June 23, 1914.)

Armstrong, B. & Co. v. Illinois C. R. Co. As holding that an act of God, i. e., a , proving that the loss arose from any of washout, causing the delay. charged, was not those excepted acts rests upon the carrier, shown so as to invalidate a verdict for the even though the shipper accompanies the shipper, see New Orleans, M. & C. R. Co. goods, and that it is only in cases where v. Mauldin, 103 Miss. 244, 60 So. 211. the shipper claims that the carrier was

It may be noted that in Colsch v. Chi- negligent in not avoiding or lessening the cago, M. & St. P. R. Co. 149 Iowa, 176, 34 damage after it had arisen from an act of L.R.A. (N.S.) 1013, 127 N. W. 198, Ann. Cas. the shipper that the burden of proof rests 1912C, 915, where the carrier was held lia- upon the shipper to prove such negligence." ble only for ordinary care, it was held that As appears in St. Louis & S. F. R. Co. v. the burden of proof of the carrier's negli- DREYFUS, the Oklahoma court adheres to its gence was on the shipper where live stock former holding in Armstrong, B. & Co. v. were frozen, and that the plaintiff, who had Illinois C. R. Co. 26 Okla. 352, 29 L.R.A. accompanied his stock, was said by the court (N.S.) 671, 109 Pac. 216, that the carrier, to have "assumed the burden of proving de- having shown that the loss or injury was fendant's negligence not only in his plead due to the act of God, is not bound to show ing, but in the introduction of his testi- affirmatively that there was no negligence

or want of due care on its part but for But in this connection it may be noted also which the goods would not have been injured that where furniture was injured by fire in or destroyed. transit and the shipper accompanied the There are other recent cases, however, goods, it was held that the ordinary rule is which hold to the contrary. not altered or lessened by the fact that the Thus, in Charleston & W. C. R. Co. v. shipper or his agent accompanies the goods. Nixon Grocery Co. 142 Ga. 343, 82 S. E. St. Louis, I. M. & S. R. Co. v. Papé, 100 Ark. 893, it was held that in an action brought 269, 140 S. W. 265, where the court said: against a common carrier to recover the “Our conclusion is that by the common law value of goods delivered to it for transportaa common carrier is in effect an insurer of tion, where the sole defense was that the goods intrusted to it for carriage while goods were not delivered because they were the same are in transit, except when the loss destroyed by act of God, to wit, an unpreceoccurs by reason of one or the other of the dented flood of water which inundated and acts above specified, and that the burden of destroyed the goods, the burden was on the

mony."

26 Okla. 352, 29 L.R.A.(N.S.) 671, 109 Messrs. H. B. Martin, Charles E. Bush,
Pac. 216; Denny v. New York C. R. Co. 13 and John Y. Murry, Jr., for defendants
Gray, 481, 74 Am. Dec. 645; Memphis & in error:
C. R. Co. v. Reeves, 10 Wall. 176, 19 L. ed.

In order for the defense relied upon to 909; Empire State Cattle Co. v. Atchison, avail, it must be the proximate, overpowerT. & S. F. R. Co. 135 Fed. 135; Missouri ing cause, without any failure on the part P. R. Co. v. Columbia, 65 Kan. 390, 58 of the carrier to exercise reasonable care LRA. 399, 69 Pac. 338; Rodgers v. Mis- and diligence to avoid injury concurring

therewith. souri P. R. Co. 75 Kan. 222, 10 L.R.A. (N.S.) 658, 121 Am. St. Rep. 416, Co. 196 N. Y. 442, 24 L.R.A.(N.S.) 1209,

Cormack v. New York, N. H. & H. R. 88 Pac. 885, 12 Ann. Cas. 441; Grier 90 N. E. 56, 17 Ann. Cas. 949; Denver & R. v. St. Louis Merchants Bridge Terminal G. R. Co. v. Andrews, 11 Colo. App. 204, Co. 108 Mo. App. 565, 84 S. W. 158; Mof- 53 Pac. 518; Evans v. Wabash R. Co. 222 fatt Commission Co. v. Union P. R. Co. Mo. 435, 121 S. W. 36; Turner v. Haar, 113 Mo. App. 544, 88 S. W. 117; Lamar 114 Mo. 335, 21 S. W. 737; Herring v. Mfg. Co. v. St. Louis & S. F. R. Co. 117 | Chesapeake & W. R. Co. 101 Va. 778, 45 Mo. App. 453, 93 S. W. 851; International S. E. 322; Black v. Chicago, B. & Q. R. & G. N. R. Co. v. Bergman, Tex. Civ. Co. 30 Neb. 197, 46 N. W. 428; Morrison App. 64 S. W. 999; Hunt Bros. v. Mis- v. Davis, 20 Pa. 171, 57 Am. Dec. 695; souri, K. & T. R. Co.

Tex. Civ. App.

Memphis & C. R. Co. v. Reeves, 10 Wall. 74 S. W. 69; Lamont v. Nashville & C. R. 176, 19 L. ed. 909; Nashville & C. R. Co. Co. 9 Heisk. 58.

v. David, 6 Heisk. 261, 19 Am. Rep. 594; Where the carrier proves that the dam. Denny v. New York C. R. Co. 13 Gray, 481, age was due to an act of God, the burden 74 Am. Dec. 645; Swetland v. Boston & A. is upon the shipper to show negligence on

R. Corp. 102 Mass. 276; Philadelphia & R. the part of the carrier, co-operating with R. Co. v. Anderson, 94 Pa. 351, 39 Am. such act of God in bringing about said Co. 5 Mackey, 356; Ballentine v. North

Rep. 787; Gleeson v. Virginia Midland R. damage.

Missouri R. Co. 40 Mo. 491, 93 Am. Dec. Armstrong, B. & Co. v. Illinois C. R. Co. 315; Pruitt v. Hannibal & St. J. R. Co. 26 Okla. 352, 29 L.R.A. (N.S.) 671, 10962 Mo. 527; Hutchinson, Carr. § 292; Pac. 216; Memphis & C. R. Co. v. Reeves, Chapin v. Chicago, M. & St. P. R. Co. 79 10 Wall. 176, 19 L. ed. 909; Turner v. Iowa, 582, 44 N. W. 820; Jones v. MinneHaar, 114 Mo. 335, 21 S. W. 737.

sota & St. L. R. Co. 91 Minn. 229, 103 Am. carrier to establish that the act of God not provides that the carrier, to be relieved only occasioned ultimately the loss, but from liability, must prove that such loss or that the negligence of the carrier did not damage has been occasioned by accidental contribute to it.

and uncontrollable event,” it was held that So, in Ferguson v. Southern R. Co. 91 the carrier should have proved its allegaS. C. 61, 74 S. E. 129, the court, in affirming tion that a sudden flood ignited lime, causa judgment against the carrier for loss ing the fire which destroyed the plaintiff's which it claimed was due to an act of God, property; "that this happened without any viz., by an unprecedented flood, said: “The contributory negligence on its part, and that rule upon which this case must be decided the sudden and unprecedented flood, which was stated thus in Slater v. South Carolina could not have been anticipated, with the R. Co. 29 S. C. 96, 6 S. E. 936: ‘Where an resultant fire, was the proximate cause of act of God causes injury to property in the the destruction of plaintiff's property; hands of a common carrier, and such act is

that the cars were not unreasonably the sole cause of such injury, then the proof delayed, and that nothing could have been of this fact is a perfect shield. But if there done by respondent which was not done to be any negligence on the part of the carrier, save the property;" and that this was not which, if it had not been present, the in altered by the fact that there was a stipulajury would not have happened, notwith- tion in the bill of lading excepting damage standing the act of God, the carrier cannot by fire "unless such damage or destruction escape responsibility. And the onus is up- shall result directly and exclusively from on the carrier to show, not only that the their negligence or that of their employees, act of God was the cause, but that it was the and unless such negligence shall be affirmaentire cause, because it is only when the act tively established by the owner of said of God is the entire cause that the carrier property.” can be shielded.'” Quoted and followed in The cases of Missouri, K. & T. R. Co. v. Deaver-Jeter Co. v. Southern R. Co. 95 S. C. Johnson, 34 Okla. 582, 126 Pac. 567, and 485, 79 S. E. 709 (also a case of flood). Chicago, R. I. & P. R. Co. v. McKone, 36

This passage was also quoted in National Okla. 41, 42 L.R.A. (N.S.) 709, 127 Pac. 488, Rice Mill. Co. v. New Orleans & N. E. R. cited in St. LOUIS & S. F. R. Co. v. DREY Co. 132 La. 615, 61 So. 708, Ann. Cas. 1914D, FUS, did not relate to carriers. B. B. B. 1099, where, under the Louisiana Code, which

.

was

St. Rep. 507, 97 N. W. 893, 15 Am. Neg. thereby averted the loss. The plaintiffs Rep. 355; Cunningham v. Wabash R. Co. introduced testimony that a switch engine 79 Mo. App. 524; Vencill v. Quincy, 0. & was seen operating and switching in the K. C. R. Co. 132 Mo. App. 722, 112 S. W. yards during the day of the 16th. The de1030.

fendant admitted that it operated passenA carrier whose negligent delay in trans- ger trains during the day, but contended porting goods committed to him for that that the switches were so badly frozen and purpose subjects them to destruction by act covered up with snow that they did not of God cannot escape liability on the theory move any of the freight cars on the 16th. that such result could not have been an- There was testimony also that it was equalticipated.

ly as cold or colder on the 17th than on Green-Wheeler Shoe Co. v. Chicago, R. I. the 16th, and the car was delivered on & P. R. Co. 130 Iowa, 123, 5 L.R.A. (N.S.) that day. Under these circumstances, there 882, 106 N. W. 498, 8 Ann. Cas. 45.

was sufficient issue of fact to go to the

jury as to whether or not the carrier, by Harrison, C., filed the following opinion: ordinary care or reasonable efforts, could

This is an appeal from a judgment ren have prevented the injury, notwithstanding dered upon two separate causes of action the snowstorm, and the court was not in based upon an alleged negligence in deliv. error in refusing to give a peremptory inery of two separate shipments of bananas. struction in favor of the railroad. This There no separate finding as to court in Missouri, K. & T. R. Co. v. Johnliability in each shipment, but a general son, 34 Okla. 582, 126 Pac. 567, held: “An verdict in the sum of $314.12 was found act of God, such as an unprecedented rainin favor of plaintiffs below. The grounds fall and resulting flood, which will excuse for reversal arose from the issues involved from liability, must not only be the proxin the first cause of action, which was based 'imate cause of the loss, but it must be the upon the allegation that, by the careless sole cause. If, however, the injury is and negligent failure to deliver a car of caused by an act of God commingled with bananas, the fruit became frozen and dam- the negligence of the defendant, as an effiaged to the amount sued for. The carrier cient and contributing concurrent cause, defended on the ground that the damage and the injury would not have occurred exwas not the result of the carrier's negli. cept for such negligence, the defendant will gence, but was the result of a severe snow. be liable." storm which froze and blocked up the The same doctrine is followed in Chicago, switches and covered the tracks to such an R. I. & P. R. Co. v. McKone, 36 Okla. 41, 42 extent that the car could not be delivered L.R.A.(N.S.) 709, 127 Pac. 488. sooner than it was. The facts are that the We think the facts that the company car of fruit arrived at Tulsa between 7

was operating passenger trains, and the and 8 o'clock on the evening of the 15th testimony that a switch engine was seen of February; that during the night of the operating in the yards during the day of 15th a blizzard and snowstorm came up the 16th, and the fact that the car was de. and the weather turned severely cold; that livered on the 17th, which it is admitted the blizzard raged throughout the day and was colder than the 16th, were sufficient to night of the 16th, and the car was not set raise the issue as to whether the carrier, by at plaintiff's' warehouse until the 17th. the exercise of reasonable efforts, could have

The carrier maintained that it was pre-delivered the fruit on the 16th, and that it vented from making the delivery by the was not improper to submit such issues to severity of the storm, and invokes the doc- the jury. trine of nonliability, where damages are But the court, in paragraph 6 of its the result of an act of God, citing an ex- charge, instructed the jury as follows: "The tended list of authorities in support of this court instructs the jury that the burden contention. We find no fault with the au- of proof is upon the defendant to satisfy thorities cited. We believe the settled rule the jury by its evidence, not only that the to be that a carrier is not liable for dam- loss sustained by the plaintiff in its first ages resulting solely from an act of God, cause of action was occasioned by the act and this rule is followed by many authori- of God, but also that the defendant exerties, even where the carrier was guilty of cised due care and diligence in the pernegligence prior to the act of God. But formance of its duty, and was not in any this rule is not applicable to the facts in manner negligent in doing or omitting to the case at bar.

do any act that might have averted the The decisive issue of fact in this case was loss." whether the storm was in fact so severe This instruction was excepted to by dethat the carrier could not have set the car fendant, and presented as grounds for reat plaintiffs' warehouse on the 16th, and' versal in the original brief of the company,

no

but the error in this instruction was over- 1 title to the subject matter of the litigation, looked in the original opinion, in which hence no right to maintain an action to rethe judgment of the lower court was af. cover affirmative relief by cross petition, firmed. But in the petition for rehearing and where the only judgment recovered the error contended for therein is pointed tion of the title, is vacated on appeal, error

against them, except an adverse adjudicaout with more clearness and argued with in the trial court forcing them to trial on more force, and, upon reconsideration of the day that the issues of fact were joined this instruction, we believe the contention is without prejudice and furnishes of plaintiff in error should be sustained. ground for reversal. This instruction unqualifiedly places the Homestead constitutional provision. burden upon the defendant to satisfy the 2. Section 2, art. 12, of the Constitution, jury that the loss was occasioned by an prohibits the sale of the homestead of the act of God, and to further satisfy them family, where the owner is a married man, that the loss could not have been averted without the consent of the wife given in such by the exercise of all due care and diligence.

manner as may be prescribed by law.
Same

effect. The burden was not on the defendant until

attempted conveyance plaintiffs had made a prima facie case

3. Any attempted conveyance by deed of which, without further proof, would have Note Conveyance of homestead by entitled them to recover. And the question husband after abandonment by wife. of defendant's negligence in failing to deliver the car on the 16th being a close ques- The earlier authorities upon the above tion of fact, it is readily seen that the jury question are set out in the opinion in Murcould have been easily misled by the fore phy v. Renner, 8 L.R.A. (N.S.) 565, and in going instruction, especially so since it was

the note accompanying that case. unqualified by any other paragraph in the brance of homestead by wife after abandon

As to validity of conveyance or encumcharge. The correct rule as to the burden ment by husband, see note to Somers v. of proof in such cases is stated by this court Somers, 36 L.R.A.(N.S.) 1024. in Armstrong, B. & Co. v, Illinois C. R. Co. As to estoppel of wife living apart from 26 Okla. 352, 29 L.R.A. (N.S.) 671, 109 Pac. her husband, to claim homestead as against 216, wherein the principal question was the purchaser ignorant of relationship, see note burden of proof. The court in the syllabus, i to Mason v. Dierks Lumber & Coal Co. 26

L.R.A.(N.S.) 574. after defining what constitutes a prima facie case, says: “(a) The carrier, by prov- consent to abandon homestead, or to con

As to power of husband without wife's ing the damage was due entirely to the vey the premises by his sole deed after flood or act of God, overcomes such prima abandonment, see note to Stewart v. Pritfacie case, and the burden shifts to the ship-chard, 37 L.R.A.(N.S.) 807. per, then, to show that negligence on the The point now under discussion seems to part of the carrier co-operated with the act have been decided in but two cases since the of God in bringing about the damage to writing of the earlier note. the shipment, in order to recover.”

In McWhorter v. Brady, 41 Okla. 383, For the error contained in the above in the title to the homestead is in the husband,

140 Pac. 782, a statute provided that when struction, the former opinion, affirming the and the wife voluntarily abandons him for judgment, is withdrawn, and this one filed a period of one year, or for any cause takes instead, and the judgment reversed, and the up her residence out of the state, he may cause remanded.

convey, mortgage, or make any contract

relating thereto, without being joined therePer Curiam:

in by her, and contained a like provision Adopted in whole.

requiring the husband to join in a conveyance of the homestead, the title to which is in the wife. The court said that before a deed to a homestead signed by one spouse

only would constitute a good conveyance, OKLAHOMA SUPREME COURT. there must be a voluntary abandonment by

the other spouse, and refused to disturb the FRANK H. WHELAN

finding of the trial court that the wife's

abandonment was involuntary and due to P. O. ADAMS et al.

the husband's misconduct, and consequently

held the deed of the husband alone of the - Okla. -, 145 Pac. 1158.) homestead property void.

And in Johnson v. Chandler, Vt. -, 92 Appeal absence of interest forcing Atl. 26, a mortgage of a homestead executed trial.

by a husband alone after he and his wife 1. Where, from the conceded facts, it ap- had separated was held void under Pub. pears that the parties to an action have no Stat. 2553, on the ground that the wife did

not join in its execution and acknowledg. Headnotes by SHARP, C.

ment.

J. T. W.

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