
    KANSAS FLOUR MILLS CO. versus LOUISIANA RAILWAY & NAVIGATION CO.
    NO. 8257
    COURT OF APPEAL PARISH OF ORLEANS
    WIIilAii A, EBEi, JUDGE:
    
      
    
   BY: VTIH1MI A. BEffi, JUDGE:

Plaintiff sues defendant for loss suffered through damage to certain shipments of flour, aggregating 2,000 bags, while same was stored in defendant's flour-warehouse, in the City of Her Orleans, during leas than a month, approximately from the middle of August to the middle of September, 1917.

It is alleged that after the flour ras stored in the warehouse of the defendant railway company, same became infested with bugs and weevils , then and there existing in said warehouse, contrary to its contract of carriage, to safely transport and warehouse said flour upon its arrival in Hew Orleans.

The petition first alleges that because of the weevilly condition of the flour, the consignees refused acceptance thereof on arrival, but by subsequent stipulation between conns el and before trial, it was agreed to as a fact, without necessity of amended pleading or proof, that the consignees had simply failed to call for the flour. It is finally alleged that tie flour v;as sold at the highest price that could be secured, resulting in a loss to plaintiff of $983.41.

Defendant admits the shipment, and final warehousing of the flour; avers that upon refusal of the shipper, or consignee, to take possession of the flour on its arrival, or to receive it within reasonable time after its arrival, defendant's responsibility as a common carrier ceased, and thereafter it v/as only liable as a public ware houseman, and in said capacity received and unloaded the flour into its warehouse, a place which was entirely free from insects of any kind. It is further averred, however, that on or about September 8, 1917, long after delivery of the flour should have been accepted, and while defendant was holding the flour in his capacity as a warehouseman, little brown bugs, in sufficient number to attract attention, began to appear in the warehouse , vfithout any fault or neg'ligence on the part of the defendant. Further answering, defendant denies that any weevils appeared in the warehouse, or infested the flour, and avers that the bugs which did appear did not bore through the flour bags, or enter the flour, except in so far as they might have entered through apertures already existing in the flour bags. It concludes its ansvfer with the statement that it did all in its power to exterminate the insects, which apparently did no damage to the flour, and that in the same warehouse where plaintiff's flour was stored, there were many other shipments of flour for other parties, and that no complaints were ever made by anyone else that said insects had caused damage to their flour, at or during the time when plaintiff claimed damage to have been sustained to its flour.

The issues in this case are as simple as the evidence adduced at'the trial. The whole contention is that the defendant, as a warehouseman, received plaintiff's flour in a warehouse infected with weevil, in violation of the contract between it and the plaintiff covering an agreement' for safe carriage and warehousing.

It is admitted by defendant that the warehouse wherein plaintiff's flour was stored was infected during the time when the flour in question was under the custody of defendant, a3 warehouseman, but it is particularly denied that the condition existing was through any fault or negligence of the defendant. This is the whole issue in the case,whether aa? the weevilly condition of the flour began while same was in the warehouse of the defendant company,and whether defendant was in any manner liable for the condition, if same existed.

From the evidence in the ease it appears that defendant not only substantiated the allegations of plaintiff's petition that the flour in question was infected with weevil,but through its own witnesses substantially proved this fact, by offering in evidence a bottle containing certain bugs or insects found in the flour, or around the sacies, and in the warehouse. This exhibit has not been brought before the Appellate Court, but the evidence shows that the many v-itnesses, both for x>laintiff and defendant, to whom this bottle v:as exhibited, declared the insects contained therein to be the common weevil, such as appears in flour,

The plaintiff has conclusively j. roven that the flour when shippe0 irom its mills in Kingman, Euns&s, was freshly milled and carefully loacteu into cars free from any weevil infection. V/e are satisfied from the evidence the t the weevilly condition of this flour arose while in defendants warr,~ nouse at How Orleans, but a most careful v.oi.'hinr of all the testimony in this case has not convinced us that the condition of the flour resulting in its sale at a loss to plaintiff,va¿ such a condition as arose, or could have arisen, from the fault or negligence of the defendant, Defendants liability can only arise in this case upon specific evidence, the proof of which under the conditions of this case, must be assumed by the ¿iuii-■ciff, that the cause of the weevilly condition ot tho flour arose through some act of omission or commission on the part of the defendant, under his liability not as a carrier, but as a warehouse man.

The first theory of defense by which tho warehouseman in this case has first sought to avoid liability, seo'-.s from the pleadings to have been predicated uAon tho all uat5on that the plaintiff’s goods we re contaminate ^ or «nfocted by Insect life arising in the warehouse, beyond tho fault or control of the defendant, irom the evidence, ho* ever, admitted without objection, defendant finally 3ought to prove, upon foots well established, not only by his own witnesses, but those of his adversary, that the flour in question, at the time of the year under which the storage arose, vas inherently susceptible to generating spontaneously the bugs or eevils found in such 1 .rr*' quantities in plaintiff’s flour. If, throurh no fault of defendant, the condition in th? flour crose from so"c natural 'uujeo inherent in the goods themselves, or from atmospheric conditions well known to exist by all the parties to the contract, it cannot be charged by the plaintiff that the defendant was at fault.

®h@' testimony shows, without contradiction of any witnesses of either plaintiff or defendant, that it is the inherent nature of flour, in southern climate, during the months of August and September, to generate insect life, first through the worm, and then through the woevll, or after-insect life of the worm.

10 this effect, one of defendant's own witnesses, for thirty or forty years a flour expert, testifies that regular flour worms oome from hot climate, and will produce small insect life, and afterwards, both bugs and worms, and that •ifeis condition was found in the flour in question. Another of plaintiff's witnesses states that these bugs and worms were found 3fn the flour, little worms, particularly,, after the bags were opened up, and a third witness of five years experience in the flour business, and who, with the second of plaintiff's witnesses was the ioint purenaser of the defective flour, when sold as such out of the warehouse, corrooorates these facts by saying that the bags were found full of bugs and worms and weevils, and that little bugs on the outside and around the bags were found, and that worms six inches deep in the sacks were also found.

She largest consumer of flour, as a baker, in the City of ¡Ter Orleans, and one who has bean engaged in the business for over forty years, and whoso bakery business consumed as much as sixty barrels of flour per day, established beyond doubt that flour, in warm climate, is subject to the weevil pest, and as stated by said witness, these insects or weevils "grow in the flour," or aa another witness for defendant said, "they make it their home«”

Tie find from the evidence, therefore, that in the flour itself, was the worm in question, and in and about the flour bags and the varehouse, vas the weevil, arising from the flour worm. It is true that one of defendant's witnesses ape-o if ioally stated on cross-examination, that the condition found in plaintiff's flour should never arise in new or fresh flour, less than five weeks old. Ihe flour in this case appears to have been shipped from the plaintiff's mills within less than five weeks before the weevilly condition thereof was discovered, and from thi3 faot it my be presumed that the flour was not infected at the time of shipment, but the burden of proof has not been assumed by plaintiff, upon whom it rightly lie3, to establish the faot that the inherent tendency to spontaneous generation of insect life arose through any fault of the defendant. Prom the evidence of the experts, it must be assumed, in the absence of proof to the contrary, that the defendant had no control whatever over these conditions.

Heither carriers nor warehousemen are liable for damages to goods in their care occasioned by exceptional and uncontrollable events, when they could not have avoided the consequence of these events by the exercise of due diligence. Ihe carrier is. howevor, burdened with the duty of showing, when goods are damaged while in his custody, why and how such damage arose, and that it was due to such causes as would exonerate him, the owner of such goods in such oases being only required to allege the loss or damage arising to hi3 goods while in the custody of the carrier.

On the other hand, the warehouseman is a bailee for hire, and as such, is only charged with the observance of such oare as a prudent man would give to his own property. If it can be shown that as warehouseman, he has failed to exercise such oare as a reasonably careful owner of goods would, under similar conditions, exercise, then the liability must be assumed by him, and proof of his inability to avoid the damage arising, becomes a burden which the law places upon him, and not upon the owner.

plaintiff's counsel oltes many authorities by this Court in support of the dootrine that the warehouseman, or bailee must exercise that care which devolves upon a prudent man who would give protection to others^ as to Ms ov;n goods, while in his possession, bait none of these authorities undertake to establish the dootrine that such liability arises as against a warehouseman when the goods in his custody are, of their own inherent nature susceptible of causing damage or defects, over which the warehouseman, under the closest exercise of care, cannot avoid.

Counsel for plaintiff in argument stresses the point that the.burden of proof rests upon a bailee for hire, to establish such facts as might excuse him, and to show that he exercised at least the care that a prudent man takes of his own property. We take no issue ?;ith counsel as to this well established doctrine in support of which he has cited the case of Scott v. Sample, 148 Ra. p. 627. In that case, as in the instant one, the bailee failing to deliver the goods in such condition as existed when they viere received by him, the Court held that the burden devolved upon the bailee to show that the goods in question, which rere damaged by fire, were not damaged by any fault or negligence of the bailee. But after this defense was offered by the bailee, whereby it was attempted to establish that the cause of the damage was through some agency beyond and outside of the bailee's control, the Court held that the burden then shifted to the shoulders of the bailor to prove that this outside cause of the damage could have been avoided by the care of an ordinary prudent man. The dootrine is thus stated:

"It is true, as shown by the authorities cited by plaintiff, that where a bailee fails to return property entrusted to his care, he bears the burden primarily, of showing why he has failed to do so. But, when he has shown that the cause was due to destruction of the bailed good3 by fire, the burden again shifts to the shoulders of the bailor, to show that the fire (contrary to the oa3e of a common carrier, inn-keeper, etc.) was By the bailee's negligence."

In the instant case, defendant has proven to the satisfaction, no aoubt, of our brother of the lower Court, and certainly to our satisfaction, that the Sarape to the flour in question was due to an agency inherent, spontaneous, or what-not, oyer which defendant had no control. Shis defense being the one finally offered by the bailee, it devolves upon the plaintiff in this case to prove that the ciroumstances leading to the defects in the flour were caused by imprudence of the defendant oompany.

The conditions under which the liability of a warehouseman handling goods perishable or inherently defective, would become liable therefor, are stated with clearness in 40 Enc. of Lav/ and Procedure, pp. 472 - 473, as follows:

"A warehouseman to whom goods are delivered in good condition, is prima facie negligent where the goods are returned in a damaged condition, only when the good3 are of such a nature that loss or damage could not ordinarily have occurred without negligence, and the rule does not apply where they would deteriorate or perish from inherent defects or natural causes.
The burden of proof, in an action of injury to the goods due to improper temperature is upon plaintiff to show that the injury resulted from defendant's fault alone, and not from the inherent nature of the goods."

We find this doctrine clearly and particularly cited in the case of Cunningham v. Pranfclin Reed & Co,, 48 Ga., 631, where the Court said:

"The warehouseman, by the law, is a depository for hire, and is bound only for ordinary diligence. If the defendants exercised that ordinary diligence in tahing care of plaintiff's ootton stored with them, which a prudent man would have in protecting and talcing care of his property, and the ootton lost in weight, without their fault or negligence, they are not liable for such loss, and it was incumbent upon the plaintiff to prove that the loss of the weight of the cotton was the result of negligence and want of care in the proper, management of it. It ‡3 not sufficient for the plaintiff to prove that the ootton stored with the defendants lost in weight, but he must go further, and prove that the loss resulted from the negligenoe and want of proper care on the part of the defendants as warehous emen."

May 10th, 1922.

In Creaoent Forwarding and Transportation Co., v. Row Orleans Box Manufacturing Company, 6 Orleans App.,41*2, this Court held that it was elementary that tho burden of gnqof is upon the bailee, to show oau.se that the, injury to, or loss of the thing- stcfred v/aa due to no faul't. or negligence of his, but as shown in the oa3e of Scott v. Sample, above «noted, and other well considered authorities, the doctrine is olear that where perishable goods, or goods which may be inherently defective, or may become so through their inherent nature, i-.re damaged while in storage, negligence cannot be assumed from the ere fact of the damage, but the negligent acts or omissions causing- the damsc-e must be affirmatively proven. Patterson v. Wenatchee Canning Company, 101 Pao., 721.

Tie are of the opinion that plaintiff has failei in carrying the burden rightly placed upon him by the law, to prove that the defects in the property under bailment were, in this oaso, due to any lack of observance on the part of defendant of that degree of care required of it as warehouseman, or bailee.

In addition to the abundance Of iroof established herein by both plaintiff and defendant, that the weevilly condition of the flour was caused by its inherent nature , induced by local atmospheric conditions, it seems that no contamination could have, in all probability, arisen by other flour in the warehouse, because defendant has shown conclusively that during the month of August, and half of September, many thousand sacks of flour of many other dealers were stored in the warehouse - in question, without complaint from any of said dealers or consignees that existed conditions in their goods similar to those found in plaintiff's goods.

We find no error in the judgment of the lover Court.

JÜDGU5RT AFFIRMED.  