
    Maison Blanche Company- -vs- Louisville & Nashville R. R. Co.
    No. 7880.
    -Court of Appeal. - Parish of Orleans.
    Dinkelspiel. J.
   r lnkalsoiel., J.

°laintiff in this case substantially plaice of 4s -defendant tne sum of ':413.60., with legal interest from judicial demand, alleging, that on or about September, 9th. 1S16, there was shipped from Mew lYork to plaintiff two certain cases of petticoats, securely and properly packed, marked, and consigned for delivery to plaintiff in the City of Hew Orleans. That said shipment was in good condition, duly delivered to and receipted for by the Ocean Pteamship Co. at Hew York City, for trans-shipment to New Orleans ’ey defendant oompany, and was delivered to the Company and was by it oarried to Hew Orleans. That upon the arrival of said shipment at New Orleans, defendant company issued it’s freight bills from point of origin to destination and collected from plaintiff the full amount of said freight charges, and, that about September 13th. lip.6, upon inspection by plaintiff of said petticoats/ they found same damaged, a part thereof ruined by water while in transit and immeadiately notified defendant company, who examined said shipment; checked same with plaintiff, agreed to the damage and injury thereto and assumed liability therefor, and that following September 33rd. 1916, defendant in keeping with said admission of liability, authorized plaintiff to turn over to defendant's agent, for disposition for defendant's account, the said shipment, which plaintiff accordingly did, and that said defendant through it's said agent took poeeession and control of said goods and removed tnem from plaintiff's premises and custody, and plaintiff was informed that the goods constituting said shipment were sold *y said agent to one Pascuala, an Auctioner, and the latter has, as instructed 'ay defendant, rendered his account of sales tc defendant.

Plaintiff .further avers, that the shipment consisted of petticoats of a total invoice value of $1.547.18; that 171 petticoats were damaged to the extent of £306.33, nett, and 53 of the petticoats were of cue value of ¡fálü.o?, wnicn were entirely ruined, and that the damaged to said shipment amounts to 5418.60.; that said injury, 1033 and damage occurred to said goods while in the care, custody and control of the defendant company, and that said loss, injury and damage vías entirely due to the negligent acts and ommission3 of said dsfandant, in violation of it’s duty to plaintiff and in violation df the duties imposed upon it by law.

Plaintiff further avers, that in any event defendant company hae assumed, adrr.itted and aoknow -ledged liability as herein above set forth, and further, that defendant by it!s actions has is estopped from denying or shifting liability in the premises and avering amicable demand áks for judgment as herein stated.

In it’s answer, defendant admits trial ix is a corporation and a common carrier carrying freight, carrying on an interstate business as such, doing business in the City of New Orleans, but denies tnat it is indebted unto plaintiff in the sum named or anyother sum.

Denies that the shipment was in good condition or properly delivered, when delivered to and reoei--ted for by the 0o3an Steamship Company at Hew York City, and avers that it was the last connecting carrier and that it did transport the said shipment over a portion of it's route, from Montgomery, Alabar. to destination, but beyond that denies all the other allegations of the petition.

Further answering, defendant admits that said shipment was delivered to it at Montgomery, Alabama, and by it transported to Hew Orleans, and if the words, "duly delivered", used is meant that said shipment was delivered to defendant in good condition, then denies that such shipment was delivered to is in good condition.

Further answering, admits, that in so far as defendant collecting freight in excsss of its proportion of the amount earne.d on the entire trip, then it .was acting for the benefit of its prior connecting carriers as is always customary in suoh matters.

Defendant denies the allegations in paragraph 16, of the petition and asserts, that on or about the date stated the shipment arried in this City, was delivered to plaintiff, was taken by plaintiff to its establishment and when opened certain damage was found to exist. Defendant aad already discovered the existance of some damage, as will be shown, advised plaintiff of the exietance thereof when delivery was made. As to the nature and amount of the damage defendant calls for strict proof, aid particularly denies that said damage occurred in transit on defendants line or while in defendant’s possession.

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Defendant admits that plaintiff immeadiately notified it, of the d.amage and with' it through a reppeeeiti&tiee examined said shipment, checked the damage with plaintiff.

Defendant shows, that this examination and checking was done in order to protect defendant aad or it's connecting carrier# in the event liability for the said damage should be found to rest with anyother of the d&vÚJU carriers; and ndmtts further, that it agreed to the amount of damage or injury determined by plaintiff and denies most emphatically that it assumed liability therefor or that liability on it's part existed.

Defendant further answering, denies that it ever made any admission of liabilty in the premises; denies that it authorized plaintiff to turn the damaged goods over to defendant for defendants acoount or otherwise, or the goods» was so turned over to defendant, asserting that by mutual agreement, but without any admission of liability on the part of defendant, certain of the goods were by plaintiff turned over to Mr. J^imuels, Auctioneer, for disposition for account of whom it may concern, except to the extent herein above set forth, otherwise allegation denied.

Answering further, paragraph 9, defendant admits, that oertain of the goods constituting the shipment was sold by Samuels, Auctioneer,and that said Samuels, has rendered acoount sales to defendant, and defendant denies that said Samuels was it's agent in the matter or that it instructed him what action to take.

Answering further, on information and belief, avers, that said Samuels rendered acoount sales to the plaintiff as well, the goods having been delivered to Samuels by plaintiff under the circumstances outlined in defendants answer, and defendant shows that said Samuels still retains the prooeeds of the sale of said goods.

Answering paragraph 11, defendant denies the allegati ons contained therein; shows that it delivered the shipment to consignee, at Hew Orleans, in the same condition in which it received it at Montgomery, Ala.

Answering paragraph 13, defendant denies that any loss, injury or damage, which the said goods may have sustains ed was due to the negligent acts or ommissions of the defendant; denies that defendant either did or failed to do anything in violation of it's duty to plaintiff or any violation of the duties imposed upon it hy law.

Answering paragraph 13, defendant denies that it ever assumed, admitted or acknowledged, any liability whatsoever in the premises, either as set forth in plaintiffs petition or otherwise; denies any liability on defendants part ever existed.

Answering paragraph 14, defendant denies the exista-noe of the actions set forth in plaintiffs petition or anyother action which oould in any wise be considered an admission of liability to any extent whatsoever; denies that suoh actions, even if they had existed would or oould constitute estoppal, or could or would prevent defendant from denying or shifting liability in the premises.

Defendant shows,that liability on it's part nevef existed, and that it would,impossible and illegal by such an admission to oreate liability, where liability did not in fact exist, as this would be oontroyry to the Interstate Commeroe Act of February, 4th. 1887.(34. Statutes at large, 3790 and,the various acts amendatory thirsdt thereof.

Answering paragraph 16, defendant shows, that it is herein sued as an Interstate carrier for an alleged damage to an Interstate shipment, and that the rights and liabilities in the premises are to ce determined 3slsly by ti.e provisions of tbs Interstate Commerce Act, ?»o above cited.

defendant further shews; that it is herein 3usd as the last connecting carrier participating in the transportation of the shipment from Hew York City to Savanah, Ga. by sea and from Havana», fa., -j rail, that as suoh it was and is only liable for damage caused by it and on it3 own line, that it handled the shipment in question only from Montgomery, Ala. to Hew Orleans, T,a., that during the time said shipment was in its possession it was carefully and properly handled, sustained no damage of any sort whatsoever; was delivered to consignee in asw Orleans in tne same condition in which it was received from its connection at Montgomery, Ala. j-that it received said shipment at Montgomery, in a sealed car whicn was not opened until it arrived at Mobile, Ala, that the appearance of the shipment indicated that it had sustained damage from water, which damage was, howeveg as above 3tated, not sustained while the shipment was in defendants possession, and was not caused or contributed to by defendant nor by anyone for whom defendant is or was responsible.

wherefore, defendant prays, that after due proceedings had, there be judgment in its favor, dismissing this suit, and for all costs and general relief.

The testimony of i'. E. Ramsey, I:. c-. neCx;inpau.5.‘ñ and J. Fi. Eavis, all residing in the City of ?'"obile, State of Alabama, ancl Joseph Martin and C. 3. Turnips-; eed, residing in the City of ’"ontgomery, State of Alabama, wa3 taken in this matter.

Mr. Ramsey, in answer to interrogatories propounded, to him says; that he is a freight Conductor of defendant company and that he handled the car in question from Mobile to New Orleans in Train 71, September 15th. 1916. The car came into his possession at 7.50 p. m. and on September, 15th. 1916, arrived at New Orleans at 5.08 in the morning. The car was sealed. Opened by him and all contents inspected him while it was in his custody.

In reply to the 13th. interrogatory he says, there was no possible ohanoe for its beooming damaged by being wet, while in my possession and under my control as the weather was clear during the entire trip. I handled this oar from Mobile to New Orleans in the same condition that it was received in Mobile and delivered it without exception.

J. S. Davis, says; that he is a Cooper of defendant in the freight department, and as such has to examine and fix up shipments. The oar in question was sealed. The car had been opened and he examined it and found it in a damaged condition, wet, throughout. The day was fair when the oar was unloaded.

H. S. Peokinpaugh, swears, that he is Chief Clerk of the Louisville & Nashville Railroad Freight Department; saw the shipment inspeoted and re-coopered by J. S. Davis, when handled from oar to transfer platform. Same arrived in Mobile September, 15th. 1‡16. Car being No. 3485, C. & I. & L. The car was proetected by seals; the seal was broken by Check Clerk, L. C. Krom, not then in the employ of defendant, but in the service of the U. S. Army in France, and the oar was entered by him, who disoovered a case of pettiooats packed in boxes needing re-ooopering. He called Mr. Davis who placed the package on the transfer platform to be examin -=d and re-cocperel. Ravis examined the petticoats i3-> opieoticn and found them to be damaged by water. The package 33emed to he wet for spmatime as the goods fit re wet throughout. It was a clear da£. The car showed no signs of having a leaking roof.

C. 10. Turrng.seed, testified, that he was employed by defendant company as engine foreman, and in the ^.onth of CcptOiiwor, 1213 was employed &y defendant company as Yard faster. On September, lath. 1216, at 7.10 a., m., the shipment in question came into possession cf defendant at its south and north yards in tne City of Montgomery, Ala., and was received in his custody. It came from the Central of Georgia Railroad Co.; was.sealed and was not opened while at Montgomery, and arrived in charge of a freight conductor employed by the Central of Georgia R» R. Co; the seals were not broker, while in Montgomery, and so far at he knew there was no opportunity for the contents cf said car to become damaged whilst at Montgomery, nor was there any chance of the contents of said car to become wet while in the yards of the company in rontggmery.

In addition to this there is filed by defendant the monthly metriological summary cf the weather reports which shows that it rained in *?ew York on September, 7th. 8th. and 9th; that it rained ixi> Qavanah on September, 13th’.- 13th. and 14th,- 1916.

The deposition of Turnipseed shews, that the shipment was received by defendant at Montgomery from tr.s Central of Georgia Railroad Co. in car C. I. L. 3435, at 7.10 a. m. on September, 14th.; that' tne car was sealed with Ocean Hteamship Company’s seals, vn.ioh were not broken at Montgomery; that there was no opportunity .for damage at Montgomery, and that the goods in question left Montgomery in the same oar, with seals unbroken. The weather was olear on September 15th. at Mobile, and it arrived at Sew Orleans at 5.08, a. m., September, 16th^. that the weather was olear during the entire trip, and therefor there was no possibility for the goods to become damaged or wet.

And in view of the further facr, that according to the weather report of the U. S. Weather Bureau, offered in evidence as Li & H. 11, it appears that no rain whatsoever fell in Hew Orleans from September 13th. to September 35th. before which latter date it is unquestionable that the goods had been delivered especially as the freight bill offered by plaintiff as Exhibit 3, is dated September,18th.

In behalf of plaintiff Mr. Reilly and Mr. M. R. Saal testified affirmatively to the damaged goods; the condition in whioh they were received and to the faot, substantially, that they were placed by defendant company in possession of Mr. Samuels, Auctioneer, that a portion of t«« petticoats were sold by the company at oost to its employees.

There was the testimony, by commission, of Samuel Quinn, Shipping Clerk, with Tm. Eppstem of Hew York, who were the vendors of the petticoats in question sold to plaintiff, and he says, that ae packed the petticoats in seperate card board boxes and they were placed in two large wooden boxes; ifct that he nailed the oase.s up and delivered to the Trucking Company, that they were in good condition, this was done on September, 8th., between 9 and 13 o'clock in the morning.

The testimony of Ackley Cannon, taken.under commission in Sew York-City, Manager of Smith Eros. Trucking Company, says, that he supervised tie *ki shipment of the two cases of petticoats from Epp-stein Sc Bros., of New York City to plaintiff in New Orleans during September, 1916; that he receiv -ed the shipment on either the 8th. or 9th. of Sep tember; that same was in good condition; that the oases were securely clasped,nailed and everything about the shipment was in first class order; he took these oases to the Ocean Steamship Co. Pier 35, North River, and put the oases on board the Steamship City of Montgomery. That this shipment was exposed to no rain nor had there seen any wetting on said oases by rain water or any water up to the time they left the Trucking House, and that the distanoe fo the Steamship Co. from the Trucking Rouse would require a journey of about ten min -utes, but does not knew whether it rained on the {lays on wvici. ne uad possession of Sue goods in question.

Joseph Martin, another witness in behalf of defendant, whose deposition was taken at Montgomery, Ala,, under commission, testified, subs tan -tially; that he was employed by defendant company as a Freight Conductor during the month of September, 1916. He handled C. I. & 1. oar 3435 from Montgomery to Mobile, and handled the oar in question from Montgomery to Mobile on the 14th. of September, 1916 in train 73, that the oar came into his possession at 3.30. p. m. on September, 14th. 1916; left his custody at 13.30. a. m. September, 15th. 1916 at Mobile; the oar was sealed when reoei ved by him. The oar was not opened or it3 contents inspected whilst in his custody, there was no rough or unusual handling whilst in his custody.’.

It las been established in this case tnat the goods in question were not damaged while on defendants line and that the damage existed when defendant received the good at liontgomery. The record ¿.¡roves through the weather reporta of the D. S. Weather Bureau, both at .Hew York and Havanah, the manner in which the goods may have been damaged, hence there being no liability on the part of defendant resulting from handling of the goode therefor no liability was created by any connection of defendant there after and no liability could in euoh a way be created.

Under former decisions of the highest Court in this "tate, and'prior to the Interstate Commerce Act, under certain contingencies the last carrier, damages occuring, was held responsible. 7 Court Appeal. 26. 4 Ann. 563. 24 Ann. 185; 31 Ann. 363 18 Ann. 9. 15 Ann. 438. 11 Ann. 324. 10 Ann.414.. 7 La. 233. C. C. 2751. 36 Ann. 186.

The last citation of authority is to be found in Southern Reporter, September, lita. 1930, paje,635, Henderson vs. Kansas City Southern Railway Co., " The common law rule that the delivering carrier of an interstate shipment shall be liable for injury to freight delivered in a damaged condition on proof merely that the goods were delivered to the initial carrier, another railraod in another ■’tate, in good condition, and without proof that the damage or injury occurred on the line of the delivering carrier, has been superceedsd by the Carmack A — S—UtuSn w,

In the body of the opinion of this same caes, hi the .Judges of the Court of A.ppsal asked for instruc -tions on the following question; Have ti-3 Peieral ’tatutes regulating interstats ooii.ii.eroo, known as the Carmack Amendment, sugerceeded ana abolished tío rule, ¡teretefore prevailing in Louisiana, and in eosJ of the oosion la.v States, ti.at a delivering carrier of an interstate shipment c..all be liable for injury to freight delivered in a damaged condition, upon proof merely ti.at tie goods were delivered to tie initial carrier, another railroad in another State, in good condition, without proof tk&t the injury or damage occurred on the line of tie delivering carrier?

This Court held, in the ease of Duval vs. Louisi Western P. R. Co. 135 Ann. 185., tnat the Carmack Amendment, imposing liability on an initial c-vriar for 103S of goods, or damage to freight, souring anywhere on the through route, did not abrogate the rule of evidence, that freight recei -ved in good order by the initial carrier is presumed to have beer, received in like good order by the succeeding carrier, or.d tnat a delivery of freight by the terminal carrier in admagsd ds.fc.gad condition raises a presumption that the damage occurred on the delivering carrier'3 line.

Since that decision -was rendered, however, tne Supreme "curt of the United ’’titea has ruled otherwise .

In the case of "nariston, Western Carolina Railway Co. —vs— Varnville Furniture Co. 237 U. S. 595., it was held; Ti.at "ongress had, by the Car-maok Amendment, so far taken over the subject of a carrier'3 liability f..r dar:.age t.- interstate shipment as to invalidate the provisions cf t.is South Carolina Civil Code, in so far as those provisions >.acl undertaken to subject a terminal carrier to a penality for failure to pay promptly a claim for damans to an interstate shipment, no matter wlisre the loss had occurred, and unless the carier proved that the damage did not occur while the goods were in its possession, or succeeded within the forty days allowed ’ey the statute, in shifting the loss, by giving notice as to when, where, and ay which carrier the property was CX mj unoiÚ lu, nvOi'iü^ carrier, used due deligence, out was unable to discover ire the damage occurred.

The Court goes on to aayiThe legislature of this Stats, in the latest statute fixing the liability of public carriers for freight received and not delivered, or for damage occurring to freight in transit, has recognized that the author -it/ of Congress, wit- regard to interstate shipment is paramount, and that, when Congress exercises its authority upon ti.s subject the States authority ceased.

tot Co. 40 of lSli, p. 1S6, amending ar.d reenacting section 1 of act 1S3 of ISOS, which, in turn, had amended and re-enacted section 1 of act S3 of 1SSS, imposing liability upon public carriers doing Vu3ins33 in this "tate, for failure ¿se del to deliver freight received by ti.em, or for damage occurring to freight in transit, expressly exempts from the operation of the law, freight received in sealed car3 from other routes outside cf ti.s ~tate...

Ti.s statute beyond conferring jurisdiction upon the Court at ti.e place of delivery of freight, is merely an embodiment of the cooucn law rule or presumption, inj the express reservat;on or exception, v;it: ^egara freight received in stxxid sealed oars from “the* roads outside of this State, is a plain implication or recognition that the common law rule cannot prevail over the acts of Congress with regard to interstate ahipameit&x ship-ment."

"The defendant in this case cannot be held liable, on a presumption of law, or without proof as a fact, that the damage occurred while the freight was in defendants possession*n

This last expression of the highest Court of this S&ite, together with authorities therein cited, settles this case beyond question.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court, be, and the same i3 hereby, set aside and annuled, and that there now be judgment in favor of defendant, plaintiff to pay costs of both Courts.

-Judgment Reversed- Judgment for Defendant.  