sisted in producing the injury, and without which it would not have occurred. To do so would only be to involve the whole matter in utter uncertainty, for, when once. we leave the direct, and go to seeking after remote, causes, we have entered upon an unending sea of uncertainty, and any conclusion which should be reached would depend more upon conjecture than facts." In a Texas case10 where cotton was destroyed by an unprecedented storm, the court held that in order to constitute proximate cause of an injury, the injury must be the natural and probable result of the negligent act or omission. It quotes from another Texas case11 as follows: "Since every event is the result of a natural law, we apprehend the meaning is that the injury is such as may probably happen as the natural consequence of the negligence under the ordinary operation of natural laws. * * * * It would seem that there is neither a legal nor a moral obligation to guard against what cannot be foreseen." The court then applied the above principles to the case as was shown by the uncontradicted evidence and held that in a legal sense there was not causal connection between the act of negligence and the destruction of the cotton by the act of God. In a recent Indiana case12 the suit was for the loss of a piano in the Dayton flood of 1913, the complaint alleged that the piano was a rush shipment and had been fifteen days on its journey, which was one of 163 miles, when it was caught in the flood, and it was claimed that the shipment had been unreasonably delayed and by reason thereof was overtaken by the flood and destroyed. The lower court gave an instruction which stated that the act of God was not a complete defense if they found that the (10) International & G. N. R. Co. v. Bergman (Tex. Civ. App.), 64 S. W. 999. (11) Texas & P. R. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162. (12) Chicago & E. Ry. Co. v. Schaff Bros. Co. (Ind. App.), 117 N. E. 869. piano had been unreasonably delayed in shipping and that the delay contributed to the injury. In reversing the case on account of the giving of such instruction the court states both rules as found in the books and approves the one holding that the act of God completely exonerates the carrier even though there may have been negligent delay, on the ground that the delay is not the proximate cause of the loss. In so holding the court said: "The law holds men responsible for the effects of their acts and omissions within the sphere of human control only. An act of God is the manifestation of a super-human power which breaks the chain of causation in the realm of human activity. It upsets the best-laid plans of men and spoils all their calculations. Because its coming is beyond the scope of man's prevision and its power beyond his strength to resist, he is relieved from the consequences thereof."13 In a Kansas case1 which is a leading one on the subject, a car of corn was delivered to the railroad company on May 22, 1903 at Frankfort, Kansas, for transportation to Kansas City, Missouri, the loaded car stood on the track at Frankfort until May 28th, when it was hauled to its destination and was overtaken there by an unprecedented flood on May 30th, 1903, the delay was protracted through the negligent omission of the company to move the car. There was no question but that the flood was an act of God. There was a finding in favor of (13) This decision is not of the Indiana Supreme Court, and is now pending on a petition to transfer, and may be overruled by that court. In the case of Pittsburgh, etc., v. Mitchel, 175 Ind. 196, the Court cites with approval New York cases holding that before the Act of God can be a defense there must be a showing by the carrier that there was no human intervening agency such as delay. See also R. R. Co. v. Scott (Ind. App.), 114 N. E. 649, and Parrill v. Cleveland, etc., R. Co., 23 Ind. App. 654, neither of which are distinguished in the Schaff Bros. case and both of which cite the New York cases. (14) Rodgers v. Missouri P. R. Co., 75 Kan. 222, 88 Pac. 885, 10 L. R. A. (N. S.) 658, 121 Am. St. Rep. 416, 12 Ann. Cas. 441. failing to unload the goods promptly on their arrival. Had they been promptly unloaded they would not have been injured. The proximate cause of the loss was held in accordance with federal view to have been the flood and the carrier was exonerated. The court said: "It should not be overlooked that the prime object of the Carmack Amendment was to bring about a uniform rule of responsibility as to interstate commerce and interstate bills of lading and that the principal subject of responsibility embraced by the Act of Congress carried with it necessarily the incidents." the railroad company in the District Court. which was affirmed by the Supreme Court. The following abstracts from the opinion are of interest on the question under discussion. Justice Burch, speaking for the court said: "The maxim is, In jure, non remota causa sed proxima spectatur. If a carrier be guilty of negligence not in itself harmful, but wrongful only because of injurious consequences which may follow, and a new cause intervene between such negligence and the injury complained of, which new cause is not a consequence of the original negligence, which reasonable prudence on the part of the original wrongdoer would not have anticipated, and but The above quotations are sufficient to for which the injury would not have hap-illustrate the reasoning followed by the pened, the new cause is the proximate cause and the original negligence is disregarded as not affecting the final result. Carriers do not assume the risk of loss caused by the act of God. * * * In the present case there is no causal relation between the negligence charged and the catastrophe which overtook the plaintiff's property. The carrier's delay did not produce the flood, and for all the carrier could foresee, promptitude might have been as dangerous as delay. The delay was a mere incident to the destruction of the car of grain. The causa causaus was the flood, the inevitableness of which could not be determined by any thing which the carrier might do." In a recent Maine case1a the Supreme Court holds that the rule held by the great majority of state courts, that a carrier will be held liable where intervening negligent delay causes goods to be in a place where they are destroyed by an act of God, will not be followed where the shipment comes under the Carmack Amendment, on account of the uniform holding of the Federal Courts to the contrary. It there appeared that by the fault of a connecting carrier, the goods were lost in the Dayton flood of The fault consisted in the carrier 1913. (14a) Continental Paper Bag Co. V. Maine C. R. (Maine), 99 Atl. 259. courts relieving the carrier from liability even though there may have been negligent delay in transporting. The contrary rule which is supported by the very respectable authority, holds that where the carrier has been guilty of negligent delay in transporting or delivering goods entrusted to its care, and thereafter the goods are lost or injured by an Act of God, and but for such delay the goods would not have been exposed to the casualty, the carrier would be liable, and this rule has been held to apply whether the goods are perishable or not. This rule has been consistently supported by the courts of the state of New York and has been known as the "New York" rule.15 Besides the courts of New York, this rule has been followed by the courts of about eleven other states.16 (15) 4 Elliott, Railroads, § 1457a. (16) McGraw v. Baltimore, etc., R. Co., 18 W. Va. 361, 41 Am. Rep. 696; Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 426; Wabash R. Co. v. Sharpe, 76 Neb. 424, 107 N. E. 758; Armentrout v. St. Louis, etc., R. Co., 1 Mo. App. 158; Bibb Broom Corn Co. v. Atchison, etc., R. Co., 94 Minn. 269, 102 N. W. 709, 110 Am. St. Rep. 361, 3 Ann. Cas. 450 and note; Hernsheim v. Newport News, etc., Co., 35 S. W. 1115, 18 Ky. Law. 227; GreenWheeler Shoe Co. v. Chicago, etc., R. Co., 130 Iowa 123, 106 N. W. 498, 5 L. R. A. (N. S.) 882, 8 Ann. Cas. 45; Wald v. Pittsburg, etc., R. Co., 162 Ill. 545, 44 N. E. 888, 53 Am. St. Rep. 332; Lamb v. Mitchell, 15 Ga. App. 759, 137, 84 S. E. The reason usually assigned in support of the "New York" rule is that, where goods are injured by an act of God while in the possession of a carrier which have been unreasonably delayed, that such default is an active operative cause concurrent with the act of God. It has also been held that a carrier should foresee, as any reasonable person could foresee, that negligent delay would extend the time during which the goods would be liable in the hands of the carrier to be overtaken by some such casualty and would therefore increase the peril that the goods should be lost to the shipper. It is also urged that the meaning of "Act of God" excludes all human agency and that there can be no loss by act of God without the total exclusion of all human agency, and that if there be any admixture of human means an injury cannot be an act of God. Another reason advanced is that the law will not permit anyone to take advantage of his own wrong, and this would be the result if the carrier were exonerated from loss caused by an act of God where there had been negligence on its part. A few cases contend that negligent delay causing loss through an act of God amounts to a technical deviation and hold the carrier liable under the rules governing that subject. In a leading New York case, the court said: "The law is well settled that common carriers, while engaged in the transportation of goods for hire, are not responsible for injuries to them caused by an act of God, or the public enemy, with the exception of injuries thus caused, they 213; Chicago, etc., R. Co. v. Miles, 92 Ark. 573, 123 S. W. 775, 124 S. W. 1043; Alabama Great So. R. Co. v. Quarles, 145 Ala. 436, 40 S. Rep. 120, 5 L. R. A. (N. S.) 867; Pittsburgh, etc., R. Co. v. Mitchell, 175 Ind. 196; Evansville, etc., R. Co. v. Scott (Ind. App.), 114 N. E. 658; Parrill V. Cleveland, etc., R. Co., 23 App. 654; Michaels v. New York Central R. Co., 30 N. Y. 564, 86 Am. Dec. 415. (17) Michaels v. New York Central R. Co., 30 N. Y. 564, 86 Am. Dec. 415. are liable for all damage to goods intrusted to them, while under their care and control. For the reasons stated in the opinion in the case of Read v. Spaulding (30 N. Y. 630) decided at this term, the carrier, to exempt himself, must show that he was free from fault at the time the injury or damage happened. He must show that he was without fault himself, and that no act or neglect of his concurred in or contribut ed to the injury. If he has departed from the line of duty, and has violated his contract, and while thus in fault, and in consequence of that fault, the goods are injured by an act of God, which would not otherwise have produced the injury, then the carrier, is not protected." In a Minnesota case1s we find the following language used: "If, but for negligence, the loss would not have occurred, no sound reason will excuse him, and he should not be relieved by an application of the abstract principles of the law of proximate cause. No wrong doer should be allowed to apportion or qualify his own wrong; and, if a loss occurs while his wrongful act is in operation and force, and which is attributable thereto he should be liable." The Supreme Court of Illinois, 19 in a case where it was claimed that fog was an act of God, thus expresses itself: "It is unnecessary to determine whether the existence of the fog could in any event be considered an act of God within the meaning of the law; for, however that question might be determined, it appears from the evidence that the accident would not have happened but for the concurrent negligence of appellant (railroad). Even in a case where the immediate cause of the injury to a passenger is an act of God, the carrier will be liable if its negligence concur red in any degree in causing the injury. (18) Bibb Broom Corn Co. v. Atchison, etc., R. Co., 94 Minn. 269, 275, 102 N. W. 709, 110 Am. St. Rep. 361, 69 L. R. A. 509, 3 Ann. Cas. 450. (19) Sandy v. Lake Street Elevated R. Co.. 235 II. 194, 85 N. E. 300. If there is any intervening human agency conflicting doctrines or rules which it deswhich contributes to cause the damage, it ignates as the Pennsylvania rule exoneratcannot be considered as caused by an acting the carrier, and the New York rule of God."20 holding the carrier. In an Indiana case the question was presented whether frost was such an act of God as would relieve the carrier. In deciding the case against the carrier, Mr. Justice Myers said: "But it is claimed that heat and frosts are acts of God. Without stopping to inquire into that question, it is well settled that if there is an intervening human that contributes to the loss, agency, the burden is on the carrier to show that it was prevented from safe delivery by the act of God, and not from delay of negligence in transportation. The complaint alleges that the loss occurred from unreasonable delay in transportation, and the facts disclose that a reasonable time for the carriage was from five to seven days and that nineteen days were consumed in the transportation, and this delay is wholly unaccounted for. If the loss was due to heat or freezing, and they can be said to be acts of God, it was still incumbent upon appellant to show that it was not due to negligence or delay in transporting, or in the language of the cases, an intervening human agency. 122 In an Alabama case23 a shipment of cotton was destroyed by a cyclone of great violence after it had been unreasonably delayed in transporting by the carrier. There was a recovery below by the shipper and on appeal the Supreme Court reviews the two (20) This authority cites 2 Hutchinson on Carriers, § 913, in support of its holdings. (21) Pittsburgh, etc., v. Mitchell, 175 Ind. 196, 91 N. E. 735, 93 N. E. 996. distinguish (22) There was an attempt to this case in the opinion in Chicago & E. Ry. Co. v. Schaff Bros. Co. (Ind. App.), 117 N. E. 869, but the fact remains that in numerous other Indiana cases the courts have cited with approval the "Michaels" and "Read" cases of New York. See cases cited under No. 13 above. (23) Alabama Great So. R. Co. v. Quarles, 145 Ala. 436, 40 So. 120, 117 Am. St. Rep. 54, 5 L. R. A. (N. S.) 867, 8 Ann. Cas. 308. In affirming the judgment the court gives the following quotation from Coggs v. Bernard, Smith Lead. Cas. 319 as stating the true rule: "The true view is not that the carrier discharges his liability by showing an act of God, and is then responsible; as an ordinary agent, for negligence; but that the intervention of negligence breaks the carrier's line of defense, by showing that the injury or loss was not directly caused by the act of God, or, more correctly speaking, was not the act of God." In a leading Iowa case2+ there was an agreed statement of facts stipulating that the carrier was guilty of negligent delay in the forwarding of the goods of plaintiff, and that said goods were destroyed by a flood which was so unusual and extraordinary as to constitute an act of God and it was further stipulated that, if there had been no such negligent delay, the goods would not have been caught in the flood referred to or damaged thereby. There was judgment for the defendant below and in reversing the case the higher court said: "Now, while it is true that defendant could not have anticipated this particular flood, and could not have foreseen that its negligent delay in transportation would subject the goods to such a danger, yet it is now apparent that such delay did subject the goods to the danger, and that but for the delay they would not have been destroyed, and defendant should have foreseen, as any reasonable person could foresee, that the negligent delay would extend the time during which the goods would be liable in the hands of the carrier to be overtaken by some such casualty, and (24) Green-Wheeler Shoe Co. v. Chicago, etc.. R. Co., 130 Iowa 123, 106 N. W. 498, 5 L. R. A. (N. S.) 882, 8 Ann. Cas. 45. would therefore increase the peril that the goods should be thus lost to the shipper. LARCENY-RECENT POSSESSION. STATE v. FORD et al. Supreme Court of North Carolina. 95 S. E. 154. March 13, This consideration that the peril of accidental destruction is enhanced by the negligent extension of time during which the goods must remain in the carrier's control and out of the control of the owner, and during which some casualty may overtake them, has not, we think, been given sufficient consideration in the cases in which the carrier, has been held not responsible for the loss for which he is not primarily liable, but which has overtaken the goods as a consequence of the preceding within proper limits on account of the temptadelay in their transportation." The court also advances the argument that in cases such as the one under consideration that there is analogy between such cases and those where there has been a deviation by the carrier, in which cases there has been a uniform holding of liability for loss of freight sustained while on the new route. The irreconcilable conflict in the authorities is recognized by text writers,25 and we find among them those following the Pennsylvania rule and urging that it is supported by the weight of authority26 while others prefer the New York rule and insist that it is suported by the soundest reasoning. There is no way of reconciling the authorities on this subject as is shown by the review which we have set out, and the writer can only say to his brethren and the courts: Here are the cases and the rules upon which they are based, take your choice. Huntington, Indiana. SUMNER KENNER. (25) 4 R. C. L. 720; 10 Corpus Juris 126; 6 cyc. 383: 1 Thomp. Neg., § 74. (26) Schouler, Bailments, 1905 ed., § 348; Hale, Bailments & Carriers, 361; 6 Cyc. 382; Notes in 36 Am. St. Rep. 838. The presumption of guilt of one in recent possession of stolen goods, when it exists, is one of fact, not of law, and is stronger or weaker as the possession is more or less recent, and as the other evidence tends to show it to be exclusive, but possession is not limited to custody about the person, but the property may be deposited in some place under lock and key where it is manifest it must have been put by the act of the party or his undoubted concurrence, but it is also imperative that the doctrine be kept tion to shift evidence of guilt from to another. one ALLEN, J. The doctrine of recent possession, as applied in the trial of indictments for larceny, frequently leads to the detection of a thief, when without it the guilty would go free, but the temptation to shift evidences of guilt from one to another, and the ease with which stolen property may be left on the premises of an innocent person, make it imperative that the doctrine be kept within proper limits, and as Lord Hale says in his Pleas of the Crown, vol. 2, p. 289, "it must be very warily pressed." Gaston J., says in State v. Smith, 24 N. C. 406, while discussing a charge to the jury that recent possession of stolen property raised a presumption of guilt: "From necessity, the law must admit, in criminal as well as civil cases, presumptive evidence; but in criminal cases, it never allows to such evidence any technical or artificial operation, beyond its natural tendency to produce belief under the circumstances of the case. Presumptions of this kind are derived altogether by means of experience from the course of nature and the habits of society, and when they are termed legal presumptions, it is because they have been so frequently drawn under the sanction of legal tribunals that they may be viewed as authorized presumptions. Among these is that which was in the mind of His Honor, the recent possession of stolen goods, in the case of larceny, raising the presumption of an actual taking by the possessor. But when we examine the cases, in which such a presumption has been sanctioned, or consider the grounds of reason and experience on which the presumption is clearly warranted, we shall find that it applies only when this possession is of a kind which manifests that the stolen goods have come to the possessor by his own act, or, at all events, with his undoubted concurrence." |