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That the erection of a double or twofamily house is not in violation of a restriction that the property is to be used "for residence purposes only" is the holding in Tillotson v. Gregory, 151 Mich. 132, 114 N. W. 1025; McDonald v. Spang, 55 Misc. 332, 105 N. Y. Supp. 617; McMurtry v. Phillips Invest. Co. 10 Ky. 308, 40 L.R.A. 489, 45 S. W. 96. In the latter case the language used was: "The property herein conveyed shall be used for residence purposes only, and that, in erecting a residence therein, it shall be built of brick or stone." The court say: "It is contended that the language of the restriction conveys the idea of a single residence for a single family, or at any rate excludes the idea of a number of residences under the same roof or in the same house. We think, however, that to give the language used this meaning would be to extend its scope beyond the express intention of the parties. The purposes for which the houses to be erected on the court were to be used were 'residence purposes only.' And as the house in controversy is to be constructed for such purpose only, and is not to be used for any other purpose, we do not think its construction is at all prohibited by this restriction clause."

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loss

act of God.

Carrier 1. An act of God, such as a severe blizzard and snowstorm, which will excuse a only be the proximate cause of the loss, but carrier from liability for loss, must not it must be the sole cause, and though the loss may have been caused by an act of God, yet, if the negligence of the defendant commingles with such act of God as an efficient, contributing, concurrent cause, and it appears from the evidence and the circumstances of the case that such injury would not have occurred except for such negligence, the company will be liable. Evidence loss by carrier proof.

burden of

2. In an action for damages occasioned by Headnotes by HARRISON, C.

Note. - Burden of proof when the defense in an action to recover for loss or injury to goods during carriage is act of God or vis major.

This note is supplemental to the note to Chicago, R. I. & P. R. Co. v. Logan, S. & Co. 29 L.R.A. (N.S.) 663, where the earlier cases are collected.

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.

If the common grantor in the case before us had in mind the exclusion of a building for the abode of more than one family, he should have used language that would have expressed such an intention. The court cannot read it into the covenant.

We do not think the clause under consideration bears the interpretation given it by the court of appeals. Taking the lang uage in its ordinary and popular sense, we are forced to the conclusion that it was not the intention of the common grantor to prohibit the erection of a double or twofamily house on the premises. Defendant in error was therefore not entitled to the relief he sought, and his petition should have been dismissed.

Judgment of the Court of Appeals reversed, and judgment for plaintiff in error.

Nichols, Ch. J., and Shauck, Johnson, Donahue, Wanamaker, and Wilkin, JJ.,

concur.

(N.S.) 671.

For carrier's liability for injury to live stock by weather conditions, see the note to Colsch v. Chicago, M. & St. P. R. Co. 34 L.R.A. (N.S.) 1013.

As stated in the earlier note, the rule is well settled that whenever a carrier seeks to excuse itself for loss occurring through an act of God or irresistible superhuman cause, inevitable accident, or the public enemy, to establish such defense. the burden of proof rests upon the carrier

Thus, in Jonesboro, L. C. & E. R. Co. v. Dunnavant, Ark., 174 S. W. 1187, in affirming a judgment upon a verdict for a shipper for damages on account of delay, where the carrier claimed that it had not accepted the shipment until high water had blocked its road, the court said: "By the common law a common carrier is in effect an insurer of goods intrusted to it for carriage while same are being transported, except when the loss occurs by the act of God, of the public enemy, or public authority, or from the inherent nature of the goods, and the burden of proving that the loss arose from any of these excepted acts rests upon the carrier."

a delay in shipment, the burden is upon the plaintiff to make out a prima facie case that the shipment was delivered to the carrier in good order and received from the carrier in damaged condition; and where the carrier denies liability because such loss was occasioned by an act of God, the burden is upon the carrier to show that such loss was the proximate result of the act of God; but, when this is done, the burden then shifts to the shipper to show that negligence on the part of the carrier co-operated with the act of God in bringing about the damage to the shipment.

Trial

jury -care of carrier.

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The facts are stated in the Commissioner's opinion.

Messrs. W. F. Evans, R. A. Kleinschmidt, and E. H. Foster, for plaintiff in error:

A snowstorm such as the evidence shows occurred at Tulsa on the night of Febru

3. Where a carrier seeks to avoid liability for loss on account of a snowstorm, and there is conflicting testimony as to whether such carrier, notwithstanding such snowstorm, could, by the exercise of ordinary care or reasonable efforts, have prevented the loss, it is proper to submit such issue of fact to the jury. Evidence carrier. 4. An instruction "that the burden of proof is upon the defendant to satisfy the jury by its evidence not only that the loss sustained by the plaintiff

ary 15th is an act of God, for the consequences of which the defendant is not responsible.

Cormack v. New York, N. H. & H. R. Co. 196 N. Y. 443, 24 L.R.A. (N.S.) 1209, 90 N. E. 56, 17 Ann. Cas. 949; Denver & R. G. R. Co. v. Andrews, 11 Colo. App. 204, 53 Pac. 518; Reed v. Duluth S. S. & A. R. Co. burden of proof -care of 100 Mich. 507, 59 N. W. 144; People v.

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was oc

casioned by the act of God, but also that "the defendant exercised due care and diligence in the performance of its duty, and was not in any manner negligent in doing or omitting to do any act that might have averted the loss," such instruction, being unqualified or unmodified by other instructions, is an erroneous statement of the law.

(June 23, 1914.)

As holding that an act of God, i. e., a | washout, causing the delay charged, was not shown so as to invalidate a verdict for the shipper, see New Orleans, M. & C. R. Co. v. Mauldin, 103 Miss. 244, 60 So. 211.

It may be noted that in Colsch v. Chicago, M. & St. P. R. Co. 149 Iowa, 176, 34 L.R.A. (N.S.) 1013, 127 N. W. 198, Ann. Cas. 1912C, 915, where the carrier was held liable only for ordinary care, it was held that the burden of proof of the carrier's negligence was on the shipper where live stock were frozen, and that the plaintiff, who had accompanied his stock, was said by the court to have "assumed the burden of proving defendant's negligence not only in his pleading, but in the introduction of his testimony."

But in this connection it may be noted also that where furniture was injured by fire in transit and the shipper accompanied the goods, it was held that the ordinary rule is not altered or lessened by the fact that the shipper or his agent accompanies the goods. St. Louis, I. M. & S. R. Co. v. Pape, 100 Ark. 269, 140 S. W. 265, where the court said: "Our conclusion is that by the common law a common carrier is in effect an insurer of goods intrusted to it for carriage while the same are in transit, except when the loss occurs by reason of one or the other of the acts above specified, and that the burden of

Utica Cement Co. 22 Ill. App. 159; Evans v. Wabash R. Co. 222 Mo. 435, 121 S. W.

36; Herring v. Chesapeake & W. R. Co. 101 Va. 778, 45 S. E. 322; Black v. Chicago, B. & Q. R. Co. 30 Neb. 197, 46 N. W. 428.

Even where a common carrier is guilty of negligent delay in making delivery of freight, if such freight is destroyed by an act of God occurring subsequently to such delay, the act of God, and not the delay, would be referred to as the proximate cause of the injury.

Armstrong, B. & Co. v. Illinois C. R. Co.

proving that the loss arose from any of those excepted acts rests upon the carrier, even though the shipper accompanies the goods, and that it is only in cases where the shipper claims that the carrier was negligent in not avoiding or lessening the damage after it had arisen from an act of the shipper that the burden of proof rests upon the shipper to prove such negligence."

As appears in ST. LOUIS & S. F. R. Co. v. DREYFUS, the Oklahoma court adheres to its former holding in Armstrong, B. & Co. v. Illinois C. R. Co. 26 Okla. 352, 29 L.R.A. (N.S.) 671, 109 Pac. 216, that the carrier, having shown that the loss or injury was due to the act of God, is not bound to show affirmatively that there was no negligence or want of due care on its part but for which the goods would not have been injured or destroyed.

There are other recent cases, however, which hold to the contrary.

Thus, in Charleston & W. C. R. Co. v. Nixon Grocery Co. 142 Ga. 343, 82 S. E. 893, it was held that in an action brought against a common carrier to recover the value of goods delivered to it for transportation, where the sole defense was that the goods were not delivered because they were destroyed by act of God, to wit, an unprece dented flood of water which inundated and destroyed the goods, the burden was on the

26 Okla. 352, 29 L.R.A. (N.S.) 671, 109 Pac. 216; Denny v. New York C. R. Co. 13 Gray, 481, 74 Am. Dec. 645; Memphis & C. R. Co. v. Reeves, 10 Wall. 176, 19 L. ed. 909; Empire State Cattle Co. v. Atchison, T. & S. F. R. Co. 135 Fed. 135; Missouri P. R. Co. v. Columbia, 65 Kan. 390, 58 L.R.A. 399, 69 Pac. 338; Rodgers v. Mis

souri P. R. Co. 75 Kan. 222, 10 L.R.A. (N.S.) 658, 121 Am. St. Rep. 416, 88 Pac. 885, 12 Ann. Cas. 441; Grier v. St. Louis Merchants Bridge Terminal Co. 108 Mo. App. 565, 84 S. W. 158; Moffatt Commission Co. v. Union P. R. Co. 113 Mo. App. 544, 88 S. W. 117; Lamar Mfg. Co. v. St. Louis & S. F. R. Co. 117 Mo. App. 453, 93 S. W. 851; International & G. N. R. Co. v. Bergman, Tex. Civ. App., 64 S. W. 999; Hunt Bros. v. Missouri, K. & T. R. Co. Tex. Civ. App. 74 S. W. 69; Lamont v. Nashville & C. R. Co. 9 Heisk. 58.

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Where the carrier proves that the damage was due to an act of God, the burden is upon the shipper to show negligence on the part of the carrier, co-operating with such act of God in bringing about said damage.

Armstrong, B. & Co. v. Illinois C. R. Co. 26 Okla. 352, 29 L.R.A. (N.S.) 671, 109 Pac. 216; Memphis & C. R. Co. v. Reeves, 10 Wall. 176, 19 L. ed. 909; Turner v. Haar, 114 Mo. 335, 21 S. W. 737.

carrier to establish that the act of God not only occasioned ultimately the loss, but that the negligence of the carrier did not contribute to it.

So, in Ferguson v. Southern R. Co. 91 S. C. 61, 74 S. E. 129, the court, in affirming a judgment against the carrier for loss which it claimed was due to an act of God, viz., by an unprecedented flood, said: "The rule upon which this case must be decided was stated thus in Slater v. South Carolina R. Co. 29 S. C. 96, 6 S. E. 936: 'Where an act of God causes injury to property in the hands of a common carrier, and such act is the sole cause of such injury, then the proof of this fact is a perfect shield. But if there be any negligence on the part of the carrier, which, if it had not been present, the injury would not have happened, notwithstanding the act of God, the carrier cannot escape responsibility. And the onus is upon the carrier to show, not only that the act of God was the cause, but that it was the entire cause, because it is only when the act of God is the entire cause that the carrier can be shielded.'" Quoted and followed in Deaver-Jeter Co. v. Southern R. Co. 95 S. C. 485, 79 S. E. 709 (also a case of flood).

This passage was also quoted in National Rice Mill. Co. v. New Orleans & N. E. R. Co. 132 La. 615, 61 So. 708, Ann. Cas. 1914D, 1099, where, under the Louisiana Code, which

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Co. 196 N. Y. 442, 24 L.R.A. (N.S.) 1209, Cormack v. New York, N. H. & H. R. 90 N. E. 56, 17 Ann. Cas. 949; Denver & R. G. R. Co. v. Andrews, 11 Colo. App. 204, 53 Pac. 518; Evans v. Wabash R. Co. 222 Mo. 435, 121 S. W. 36; Turner v. Haar, 114 Mo. 335, 21 S. W. 737; Herring v. Chesapeake & W. R. Co. 101 Va. 778, 45 S. E. 322; Black v. Chicago, B. & Q. R. Co. 30 Neb. 197, 46 N. W. 428; Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695; Memphis & C. R. Co. v. Reeves, 10 Wall. 176, 19 L. ed. 909; Nashville & C. R. Co. v. David, 6 Heisk. 261, 19 Am. Rep. 594; Denny v. New York C. R. Co. 13 Gray, 481, 74 Am. Dec. 645; Swetland v. Boston & A. R. Corp. 102 Mass. 276; Philadelphia & R. R. Co. v. Anderson, 94 Pa. 351, 39 Am. Rep. 787; Gleeson v. Virginia Midland R. Co. 5 Mackey, 356; Ballentine v. North Missouri R. Co. 40 Mo. 491, 93 Am. Dec. 315; Pruitt v. Hannibal & St. J. R. Co. 62 Mo. 527; Hutchinson, Carr. § 292; Chapin v. Chicago, M. & St. P. R. Co. 79 Iowa, 582, 44 N. W. 820; Jones v. Minnesota & St. L. R. Co. 91 Minn. 229, 103 Am. provides that the carrier, to be relieved from liability, must prove "that such loss or damage has been occasioned by accidental and uncontrollable event," it was held that the carrier should have proved its allegation that a sudden flood ignited lime, causing the fire which destroyed the plaintiff's property; "that this happened without any contributory negligence on its part, and that the sudden and unprecedented flood, which could not have been anticipated, with the resultant fire, was the proximate cause of the destruction of plaintiff's property;

that the cars were not unreasonably delayed, and that nothing could have been done by respondent which was not done to save the property;" and that this was not altered by the fact that there was a stipulation in the bill of lading excepting damage by fire "unless such damage or destruction shall result directly and exclusively from their negligence or that of their employees, and unless such negligence shall be affirmatively established by the owner of said property."

The cases of Missouri, K. & T. R. Co. v. Johnson, 34 Okla. 582, 126 Pac. 567, and Chicago, R. I. & P. R. Co. v. McKone, 36 Okla. 41, 42 L.R.A. (N.S.) 709, 127 Pac. 488, cited in St. LOUIS & S. F. R. Co. v. DREYFUS, did not relate to carriers. B. B. B.

St. Rep. 507, 97 N. W. 893, 15 Am. Neg. | thereby averted the loss. The plaintiffs Rep. 355; Cunningham v. Wabash R. Co. 79 Mo. App. 524; Vencill v. Quincy, O. & K. C. R. Co. 132 Mo. App. 722, 112 S. W. 1030.

A carrier whose negligent delay in transporting goods committed to him for that purpose subjects them to destruction by act of God cannot escape liability on the theory that such result could not have been anticipated.

Green-Wheeler Shoe Co. v. Chicago, R. I. & P. R. Co. 130 Iowa, 123, 5 L.R.A. (N.S.) 882, 106 N. W. 498, 8 Ann. Cas. 45.

Harrison, C., filed the following opinion: This is an appeal from a judgment rendered upon two separate causes of action based upon an alleged negligence in delivery of two separate shipments of bananas. There was no separate finding as to liability in each shipment, but a general verdict in the sum of $314.12 was found in favor of plaintiffs below. The grounds for reversal arose from the issues involved in the first cause of action, which was based upon the allegation that, by the careless and negligent failure to deliver a car of bananas, the fruit became frozen and damaged to the amount sued for. The carrier defended on the ground that the damage was not the result of the carrier's negligence, but was the result of a severe snowstorm which froze and blocked up the switches and covered the tracks to such an extent that the car could not be delivered sooner than it was. The facts are that the car of fruit arrived at Tulsa between 7 and 8 o'clock on the evening of the 15th of February; that during the night of the 15th a blizzard and snowstorm came up and the weather turned severely cold; that the blizzard raged throughout the day and night of the 16th, and the car was not set at plaintiffs' warehouse until the 17th.

introduced testimony that a switch engine was seen operating and switching in the yards during the day of the 16th. The defendant admitted that it operated passenger trains during the day, but contended that the switches were so badly frozen and covered up with snow that they did not move any of the freight cars on the 16th. There was testimony also that it was equally as cold or colder on the 17th than on the 16th, and the car was delivered on that day. Under these circumstances, there was sufficient issue of fact to go to the jury as to whether or not the carrier, by ordinary care or reasonable efforts, could have prevented the injury, notwithstanding the snowstorm, and the court was not in error in refusing to give a peremptory instruction in favor of the railroad. This court in Missouri, K. & T. R. Co. v. Johnson, 34 Okla. 582, 126 Pac. 567, held: "An act of God, such as an unprecedented rainfall and resulting flood, which will excuse from liability, must not only be the proximate cause of the loss, but it must be the sole cause. If, however, the injury is caused by an act of God commingled with the negligence of the defendant, as an efficient and contributing concurrent cause, and the injury would not have occurred except for such negligence, the defendant will be liable."

The same doctrine is followed in Chicago, R. I. & P. R. Co. v. McKone, 36 Okla. 41, 42 L.R.A. (N.S.) 709, 127 Pac. 488.

We think the facts that the company was operating passenger trains, and the testimony that a switch engine was seen operating in the yards during the day of the 16th, and the fact that the car was delivered on the 17th, which it is admitted was colder than the 16th, were sufficient to raise the issue as to whether the carrier, by the exercise of reasonable efforts, could have delivered the fruit on the 16th, and that it was not improper to submit such issues to the jury.

But the court, in paragraph 6 of its charge, instructed the jury as follows: "The court instructs the jury that the burden of proof is upon the defendant to satisfy the jury by its evidence, not only that the

The carrier maintained that it was prevented from making the delivery by the severity of the storm, and invokes the doctrine of nonliability, where damages are the result of an act of God, citing an extended list of authorities in support of this contention. We find no fault with the authorities cited. We believe the settled rule 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, and this rule is followed by many authorities, even where the carrier was guilty of negligence prior to the act of God. But this rule is not applicable to the facts in the case at bar.

cause of action was occasioned by the act of God, but also that the defendant exercised due care and diligence in the performance of its duty, and was not in any manner negligent in doing or omitting to 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 that the carrier could not have set the car at plaintiffs' warehouse on the 16th, and

This instruction was excepted to by defendant, and presented as grounds for reversal in the original brief of the company,

but the error in this instruction was overlooked in the original opinion, in which the judgment of the lower court was affirmed. But in the petition for rehearing the error contended for therein is pointed out with more clearness and argued with more force, and, upon reconsideration of this instruction, we believe the contention of plaintiff in error should be sustained. This instruction unqualifiedly places the burden upon the defendant to satisfy the jury that the loss was occasioned by an act of God, and to further satisfy them that the loss could not have been averted by the exercise of all due care and diligence. The burden was not on the defendant until plaintiffs had made a prima facie case which, without further proof, would have entitled them to recover. And the question of defendant's negligence in failing to deliver the car on the 16th being a close question of fact, it is readily seen that the jury could have been easily misled by the foregoing instruction, especially so since it was unqualified by any other paragraph in the charge. The correct rule as to the burden of proof in such cases is stated by this court in Armstrong, B. & Co. v. Illinois C. R. Co. 26 Okla. 352, 29 L.R.A. (N.S.) 671, 109 Pac. 216, wherein the principal question was the burden of proof. The court in the syllabus, after defining what constitutes a prima facie case, says: “(a) The carrier, by proving the damage was due entirely to the flood or act of God, overcomes such prima facie case, and the burden shifts to the per, then, to show that negligence on the part of the carrier co-operated with the act of God in bringing about the damage to the shipment, in order to recover."

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The earlier authorities upon the above question are set out in the opinion in Murphy v. Renner, 8 L.R.A. (N.S.) 565, and in the note accompanying that case. brance of homestead by wife after abandonAs to validity of conveyance or encumment by husband, see note to Somers v. Somers, 36 L.R.A. (N.S.) 1024.

As to estoppel of wife living apart from her husband, to claim homestead as against purchaser ignorant of relationship, see note to Mason v. Dierks Lumber & Coal Co. 26 L.R.A. (N.S.) 574.

consent to abandon homestead, or to conAs to power of husband without wife's vey the premises by his sole deed after abandonment, see note to Stewart v. Pritship-chard, 37 L.R.A. (N.S.) 807.

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The point now under discussion seems to have been decided in but two cases since the writing of the earlier note.

In McWhorter v. Brady, 41 Okla. 383, 140 Pac. 782, a statute provided that when the title to the homestead is in the husband, and the wife voluntarily abandons him for a period of one year, or for any cause takes up her residence out of the state, he may convey, mortgage, or make any contract relating thereto, without being joined therein by her, and contained a like provision 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, there must be a voluntary abandonment by the other spouse, and refused to disturb the finding of the trial court that the wife's abandonment was involuntary and due to the husband's misconduct, and consequently held the deed of the husband alone of the homestead property void.

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And in Johnson v. Chandler, Vt. -, Atl. 26, a mortgage of a homestead executed by a husband alone after he and his wife had separated was held void under Pub. Stat. 2553, on the ground that the wife did not join in its execution and acknowledgment. J. T. W.

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