APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge. Judgment reversed and cause remanded with instructions.
Mr. Francis M. Hartman, Messrs. Knapp, Boyle & Thompson and Mr. Guy V. Shoup, of Counsel, for Appellant.
Messrs. Mathews & Bilby and Mr. T. K. Shoenhair, for Appellee.
[51 Ariz. 27] LOCKWOOD, J.
This is an action by Fred Itule, hereinafter called plaintiff, against Southern Pacific Company, a corporation, hereinafter called defendant, to recover damages for two carloads of tomatoes shipped to plaintiff's assignor from Dania, Florida, to Tucson, Arizona, and to Phoenix, Arizona. The complaint sets up two causes of action which, in substance are as follows:
On or about the 30th of January, 1934, one A.D. Neuman delivered 600 lugs of tomatoes to a common carrier for hire at Dania, Florida, consigned to Frank Itule at Tucson, Arizona. These tomatoes were transported by various carriers to Tucson and delivered to the consignee on or about February 12th, defendant being the delivering carrier. At the time the tomatoes were delivered to the initial carrier, in Florida, they were in good condition, properly packed and loaded, and, if they had arrived in as good condition as when they were delivered for shipment, their reasonable value would have been $1,950. As a matter of fact, however, they arrived in a decayed, ripened, overheated, and spoiled condition, so that their reasonable market value at that time was $298.20. Consignee [51 Ariz. 28] made a claim for damages to defendant, and afterwards assigned said claim to the plaintiff.
The second cause of action was substantially the same, except that it was alleged that the tomatoes were delivered to one Willie Itule, in Phoenix, and that their reasonable value on arrival, instead of being $1,950 (as it would have been had they arrived in good condition), was $789.39. This claim was also assigned to plaintiff. It was alleged that the cause of the damage was negligent transportation of the tomatoes by the various carriers.
Defendant, after pleading a general denial, alleged, in substance, that, when the goods were delivered to the original carrier in Florida, the shipper instructed the carriers to ship the same under what is known as "standard ventilation"; that they were transported in accordance with shipper's instructions at all times, with standard ventilation properly carried out; and that none of the carriers were guilty of any negligence of any kind or description, and that, if the shipments arrived at their destinations in a damaged condition, such condition was caused by the inherent nature of the goods, and not by any negligence on the part of any of the carriers.
The case was tried before a court and a jury, and plaintiff offered evidence tending to prove that the tomatoes were in good condition when delivered in Florida to the initial carrier, and were in an overripe and damaged condition when received at their destinations, together with the reasonable market value, damaged and undamaged, and then rested.
Defendant then offered evidence showing that the goods had been ordered shipped "standard ventilation" and that such ventilation was carried out during all of the period of shipment and, in general that the shipments were handled and transported carefully and expeditiously, and without delay, except such as [51 Ariz. 29] was caused by the orders of the shipper. Plaintiff offered no evidence whatever to contradict or controvert any of this evidence as to the manner in which the shipments were handled. Defendant also showed, by an expert witness, that the shipping of the tomatoes under standard ventilation, instead of protecting them by icing, would tend to cause the condition of the tomatoes on arrival. At the close of the evidence, defendant moved for directed verdicts as to each of the two causes of action, which were denied. There were also certain instructions requested by defendant, which were refused.
The jury brought in a verdict in favor of the plaintiff on the first cause of action for $1,501.80, and on the second cause of action for $1,010.61, upon which verdict judgment was rendered. After the usual motion for new trial was overruled, this appeal was taken.
The appeal raises a question of law in regard to the extent of the liability of a carrier for perishable articles, such as fruit and vegetables, which has never been determined in this jurisdiction. Under the common law, every carrier receiving goods in good condition for carriage, and delivering them in bad condition, was presumed to have been negligent in their transportation, and was liable for the damages caused by ite negligence. There were four, and only four, defenses which might be raised by the carrier under such circumstances, these being that the injury was caused by (a) an act of God, (b) the public enemy, (c) the act of the shipper, or (d) the inherent nature of the goods themselves. It is sometimes said that the basis of the carrier's liability for the loss or damage to goods in transit was presumed negligence, but this, strictly speaking, is erroneous, since it cannot be rebutted. The rule is really one of substantive law, to the effect that the carrier is an insurer of the safe transportation of goods entrusted to [51 Ariz. 30] its care, unless the loss or damage is due to one of the four specified causes. Chesapeake & O.R. Co. v. A.F. Thompson Mfg. Co.,270 U.S. 416, 46 S.Ct. 318, 70 L.Ed. 659; Memphis & C.R.R. Co. v. Reeves, 10 Wall. (77 U.S.) 176, 19 L.Ed. 909; Bank of Kentucky v. Adams Express Co.,93 U.S. 174, 23 L.Ed. 872. Since these four defenses are affirmative ones, the burden of proof was on the carrier to show that the injury was caused in one of these four manners, and in the absence of affirmative and satisfactory evidence to that effect, following the rule in all cases where the burden of proof is with one or the other party on a given issue, it was the duty of the trial court to instruct the jury that the carrier had not met the burden imposed on it. The older cases are very strict in regard to the necessity of the carrier establishing affirmatively the true cause of the injury, if it desired to escape liability. There was, however, even then, one apparent exception to this rule, and that was when the goods transported were livestock. It was held that, due to the peculiar nature and ...