which actions must be brought, usually designate a shorter limitation on tort actions, so that it may, on this account, be sometimes necessary to sue ex contractu.

When the contract imposes on the carrier some duty or obligation not imposed by the common law, then, of course, for a breach of this duty, the carrier must be sued ex contractu." 87 Thus, if the carrier should agree to provide a special groom to attend the shipper's horse during the entire period of shipment, and the carrier fails to provide such a groom, then must the carrier be sued on his contract, for he owes no such duty apart from that contract. Advantages of an Action Ex Delicto

39

Where there are two or more defendants, and there is any doubt as to the parties liable, it is always safer to sue ex delicto, for in tort the plaintiff may sue any or all of the defendants who are liable, while the rules as to proper parties defendant in actions ex contractu are exceedingly strict. In actions ex delicto, less definiteness and precision is required in the plaintiff's statement of his cause of action, and hence the danger of a variance between the pleadings and the proof is not so great as in actions ex contractu.1o In the matter of joinder, when the common-law action of trespass on the case is brought, a count in trover (which is also an action ex delicto) may be joined; but this joinder in an action ex con

87 WERNICK v. ST. LOUIS & S. F. R. CO., 131 Mo. App. 37, 109 S. W. 1027, Dobie Cas. Bailments and Carriers, 278; Masters v. Stratton, 7 Hill (N. Y.) 101; Legge v. Tucker, 1 Hurl. & N. (Eng.) 500; Bliss on Code Pleading (3d Ed.) § 14.

38 Orange County Bank v. Brown, 3 Wend. (N. Y.) 158; Cabell v. Vaughan,. 1 Saund. (Eng.) 291a, 291e; Jones v. Pitcher, 3 Stew. & P. (Ala.) 135, 24 Am. Dec. 716; Holsapple v. Rome, W. & O. R. Co., 86 N. Y. 275; Mitchell v. Tarbutt, 5 Term R. (Eng.) 649; Smith v. Seward, 3 Pa. 342, 345; Patton v. Magrath, Rice (S. C.) 162, 33 Am. Dec. 98; Pozzi v. Shipton, 8 Adol. & E. (Eng.) 963, 35 E. C. L. 931. Connecting carriers, see Baker v. Michigan, S. & N. I. R. Co., 42 Ill. 73; Ansell v. Waterhouse, 6 Maule & S. (Eng.) 385, 18 E. C. L. 469. See, also, Merchants' & Miners' Transp. Co. v. Eichberg, 109 Md. 211, 71 Atl. 993, 130 Am. St. Rep. 524.

89 Smith v. Seward, 3 Pa. 342; Mershon v. Hobensack, 22 N. J. Law, 372; Patton v. Magrath, Rice (S. C.) 162, 33 Am. Dec. 98; Pozzi v. Shipton, 8 Adol. & E. (Eng.) 963.

40 Weed v. Saratoga & S. R. Co., 19 Wend. (N. Y.) 534; Wylde v. Pickford, 8 M. & W. (Eng.) 443.

41 Dickon v. Clifton, 2 Wils. (Eng.) 319; Dwight v. Brewster, 1 Pick. (Mass.) 50, 11 Am. Dec. 133; Wylde v. Pickford, 8 Mees. & W. (Eng.) 443; Govett v. Radnidge, 3 East (Eng.) 62, 69. Trover is not the proper remedy for loss of goods. Ross v. Johnson, 5 Burrows (Eng.) 2825; Kirkman v. Hargreaves, 1 Selw. N. P. 10th Ed. (Eng.) 411; Anon., 2 Salk. (Eng.) 665; Bowlin v. Nye, 10 Cush. (Mass.) 416. Trover lies for wrongful delivery to third person. Viner v. New York, A. G. & W. S. S. Co., 50 N. Y. 23; Bush v. Romer, 2 Thomp. &

43

tractu would not be permissible." The measure of damages, too, is more elastic than in actions ex contractu; punitive damages being sometimes allowed in ex delicto actions. Finally, in this connection, an action ex delicto is more desirable, when the contract of shipment restricts the common-law liability of the carrier; for, in such an action, the burden of alleging these special limitations and proving that the loss or injury was included within such limitations falls affirmatively on the carrier.**

THE PLEADINGS

156. The pleadings should indicate clearly the plaintiff's theory of the case, whether this be ex contractu or ex delicto. They should state facts constituting a complete cause of action against the carrier, consistent with this theory, and in harmony with the evidence to be adduced at the trial.

Either under the common law or Code system of pleading, the plaintiff should make it perfectly clear in his first pleading whether he is attempting to state a cause of action ex contractu or ex delicto. When this is made clear, all subsequent pleadings must be

C. (N. Y.) 597; Hawkins v. Hoffman, 6 Hill (N. Y.) 586, 41 Am. Dec. 767; Libby v. Ingalls, 124 Mass. 503; Humphreys v. Reed, 6 Whart. (Pa.) 435; Shenk v. Philadelphia Steam Propeller Co., 60 Pa. 109, 100 Am. Dec. 541; Bullard v. Young, 3 Stew. (Ala.) 46; Stephenson v. Hart, 4 Bing. 476; Illinois Cent. R. Co. v. Parks, 54 Ill. 294; Indianapolis & St. L. R. Co. v. Herndon, 81 Ill. 143; St. Louis & T. H. R. Co.. v. Rose, 20 Ill. App. 670. Also for refusal to deliver. Northern Transp. Co. of Ohio v. Sellick, 52 Ill. 249; Adams v. Clark, 9 Cush. (Mass.) 215, 57 Am. Dec. 41; Richardson v. Rich, 104 Mass. 156, 159, 6 Am. Rep. 210; Packard v. Getman, 6 Cow. (N. Y.) 757, 16 Am. Dec. 475; Long v. Mobile & M. R. Co., 51 Ala. 512; Hunt v. Haskell, 24 Me. 339, 41 Am. Dec. 387; Louisville & N. R. Co. v. Lawson, 88 Ky. 496, 11 S. W. 511; Erie Dispatch v. Johnson, 87 Tenn. 490, 11 S. W. 441; Lewis v. St. Paul & S. C. R. Co., 20 Minn. 260 (Gil. 234); Marsh v. Union Pac. R. Co. (C. C.) 9 Fed. 873. See, also, Ostrander v. Brown, 15 Johns. (N. Y.) 39, 8 Am. Dec. 211. Trover lies where carrier has sold goods for freight. Sullivan v. Park, 33 Me. 438; Briggs v. Boston & L. R. Co., 6 Allen (Mass.) 246, 83 Am. Dec. 626.

42 Coryton v. Lithebye, 2 Saund. (Eng.) 115, and note. See, also, Hoagland v. Hannibal & St. J. R. Co., 39 Mo. 451; Colwell v. New York & E. R. Co., 9 How. Prac. (N. Y.) 311.

48 See Mills v. Southern Ry., 90 S. C. 366, 73 S. E. 772; MATHESON v. SOUTHERN R. CO., 79 S. C. 155, 60 S. E. 437, Dobie Cas. Bailments and Carriers, 290.

44 SOUTHERN EXP. CO. v. CALDWELL, 21 Wall. 264, 22 L. Ed. 556, Dobie Cas. Bailments and Carriers, 226.

45 For forms of declarations at common law, both in assumpsit (when the

46

appropriate to the theory of his case thus adopted by the plaintiff. As has just been indicated, when this theory is ex contractu, much greater particularity of statement is required. There are no peculiar rules of pleading applicable only to actions against carriers.47

As in other cases, the plaintiff must allege every fact necessary to show a cause of action against the carrier, entitling the plaintiff to recover. Thus there must be allegations of fact showing (a) the duty owed to the plaintiff (whether arising ex contractu or ex delicto); (b) the violation of that duty; and (c) the resulting damage to the plaintiff. The plaintiff's pleadings must also be drawn with reference to the evidence to be adduced at the trial. The plaintiff's case must be proved as alleged; the allegata and probata must correspond, or a variance between the two might prove fatal to the plaintiff's case."

action is on the contract) and in trespass on the case (when the action is on the tort), see any of the standard works on pleading. These are also given in all form books. In the Code states there are no forms of action, but the pleader in his first pleading makes it clear whether he is stating a case ex contractu or ex delicto. See WERNICK v. ST. LOUIS & S. F. RY. CO., 131 Mo. App. 37, 109 S. W. 1027, Dobie Cas. Bailments and Carriers, 278.

46 Weed v. Saratoga & S. R. Co., 19 Wend. (N. Y.) 534; Wylde v. Pickford, 8 M. & W. (Eng.) 443.

47 In an action against a railroad company to recover damages for loss and injury to property in shipment, based on its common-law liability as a common carrier, it cannot defend on the ground that plaintiff failed to give notice of the loss within a reasonable time unless such defense is specifically pleaded. Southern Ry. Co. v. Mooresville Cotton Mills, 187 Fed. 72, 109 C. C. A. 390.

48 In 3 Hutch. Carr. § 1334, the following cases are cited in which the plaintiff's statement was held sufficient: Williams v. Baltimore & O. R. Co., 9 W. Va. 33; Missouri Pac. Ry. Co. v. Edwards, 78 Tex. 307, 14 S. W. 607; LANG v. BRADY, 73 Conn. 707, 49 Atl. 199, Dobie Cas. Bailments and Carriers, 283; Independence Mills Co. v. Burlington, C. R. & N. Ry. Co., 72 Iowa, 535, 34 N. W. 320, 2 Am. St. Rep. 258; McFadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721. And the following cases when the pleading was held insufficient: Cox v. Columbus & W. Ry. Co., 91 Ala. 392, 8 South. 824; Pennsylvania Co. v. Clark, 2 Ind. App. 146, 27 N. E. 586, 28 N. E. 208; Richardson v. Chicago & N. W. Ry. Co., 61 Wis. 596, 21 N. W. 49. The failure of a carrier to deliver property received for transportation constitutes, in the absence of proof that the loss was occasioned by an act of God or the public enemy, or resulted from inevitable accident or from inherent defects in the property, a cause of action; and the shipper need not allege or prove the specific misconduct that incapacitated the carrier from delivering the goods. Merritt Creamery Co. v. Atchison, T. & S. F. R. Co., 128 Mo. App. 420, 107 S. W. 462. In an action by a shipper against a carrier for damage to goods in transit, particular acts of negligence need not be alleged. Louisville & N. R. Co. v. Warfield & Lee, 129 Ga. 473, 59 S. E. 234; Id., 3 Ga. App. 187, 59 S. E. 604.

49 R. E FUNSTEN DRIED FRUIT & NUT CO. v. TOLEDO, ST. L. & W.

THE EVIDENCE

157. The plaintiff's evidence, consistent with his pleadings, in actions for loss of, or injury to, the goods, must show;

(a) Delivery of the goods to the carrier.

(b) The carrier's undertaking to transport them safely. (c) The carrier's failure in this undertaking.

(d) The resulting damage.

The plaintiff must prove, consistent with the allegations in his pleadings, facts necessary to make out a cause of action against the carrier. This must be done by evidence that is relevant and admissible according to the accepted doctrines of evidence. These facts have been repeatedly stated and require no further discussion here.

When the plaintiff thus proves the delivery to the carrier, the carrier's undertaking, and the latter's failure in this undertaking, which results in damage to the goods or loss of them, he has made out a prima facie case. This the carrier may rebut (as we have

50

R. CO., 163 Mo. App. 426, 143 S. W. 839, Doble Cas. Bailments and Carriers, 196. There was a variance between an allegation that the damage was caused from delay in transportation and proof that it arose from lack of refrigeration, which was not alleged. Missouri, K. & T. Ry. Co. of Texas v. McLean, 55 Tex. Civ. App. 130, 118 S. W. 161. A variance in an action for damage to goods shipped in that the initials of the consignee on the waybill were different from those of plaintiff, though the surname was the same, was not necessarily material or fatal. Georgia S. & F. R. Co. v. Barfield, 1 Ga. App. 203, 58 S. E. 236.

50 This the plaintiff does by showing delivery to the carrier and the carrier's failure to deliver the goods, as to a loss. Cooper v. Georgia Pac. Ry. Co., 92 Ala. 329, 9 South. 159, 25 Am. St. Rep. 59; The Priscilla (D. C.) 106 Fed. 739; Saleeby v. Central R. Co. of New Jersey, 99 App. Div. 163, 90 N. Y. Supp. 1042; Magnus v. Platt, 62 Misc. Rep. 499, 115 N. Y. Supp. 824; Taugher v. Northern Pac. R. Co., 21 N. D. 111, 129 N. W. 747. As to damage, a prima facie case is made out by showing a delivery of the goods to the carrier in good condition, and redelivery by the carrier in a damaged condition. St. Louis Southwestern R. Co. v. Phoenix Cotton Oil Co., 88 Ark. 594, 115 S. W. 393; FOCKENS v. UNITED STATES EXP. CO., 99 Minn. 404, 109 N. W. 834, Dobie Cas. Bailments and Carriers, 284; Nairn v. Missouri, K. & T. R. Co., 126 Mo. App. 707, 106 S. W. 102; Michigan Cent. R. Co. v. Osmus, 129 Ill. App. 79; Vuille v. Pennsylvania R. Co., 42 Pa. Super. Ct. 567. On proof that a carrier received goods in good condition, the burden rests on defendant to show delivery in the same condition to the next carrier or to the consignee; such proof being within its power. Orem Fruit & Produce Co. of Baltimore City v. Northern Cent. R. Co., 106 Md. 1, 66 Atl. 436, 124 Am. St. Rep. 462. In an action for breakage of goods in transit, the plaintiff must prove that the goods were delivered in good condition and properly packed. E. C. Fuller Co. v. Pennsylvania R. Co., 61 Misc. Rep. 599, 113 N. Y. Supp.

seen) by showing that such loss or damage was due either to one of the excepted perils or to a cause from which he has exempted himself by a valid contract." The conflict of opinion as to whether the carrier must, in the case of an excepted peril, go further and show the absence of negligence on his part, has also been adverted to.52 The subject of the burden of proof has also been discussed in the specific treatment of the various questions in connection with which it has arisen.

THE MEASURE OF DAMAGES-IN GENERAL

158. In determining the amount of damages to which the plaintiff is entitled in an action for the breach of the duty of the carrier, the law, in general, seeks to put the plaintiff in the position in which he would have been had the carrier fully lived up to his duty. Punitive damages are rarely given.

The consideration in detail of the measure of damages belongs more properly to a work on damages; but it seems advisable to

51 See ante, §§ 118, 128. See, also, Gulf, C. & S. F. R. Co. v. Belton Oil Co., 45 Tex. Civ. App. 44, 99 S. W. 430; Lloyd v. Haugh & Keenan Storage & Transfer Co., 223 Pa. 148, 72 Atl. 516, 21 L. R. A. (N. S.) 188; McCord v. Atlantic Coast Line R. Co., 76 S. C. 469, 57 S. E. 477; Union Pac. R. Co. v. Stupeck, 50 Colo. 151, 114 Pac. 646. Where a box in which an overcoat was shipped was allowed to remain with the carrier at its destination until its liability became merely that of warehouseman, it was presumed negligent, and under the burden of explaining disappearance of the coat. Levine v. Delaware, L. & W. R. Co., 74 Misc. Rep. 348, 134 N. Y. Supp. 217. Where, in an action for the value of a puncheon of molasses which burst while in the custody of a carrier, there is evidence that the cause was the fermentation of the molasses, defendant is entitled to have it considered by the jury under a proper charge, as the carrier is not liable for loss or damage resulting from defects inherent in the goods. Currie v. Seaboard Air Line R. Co., 156 N. C. 432, 72 S. E. 493. As to the effect on the burden of proof when the shipper or his agent accompanies the shipment, see St. Louis, I. M. & S. R. Co. v. Pape, 100 Ark. 269, 140 S. W. 265; Winn v. American Exp. Co., 149 Iowa, 259, 128 N. W. 663. The right of a carrier to sue for the freight due and the right of the shipper to sue for damages to the shipment are independent, and it is no defense to an action for damages that the freight has not been paid. Cleveland, C., C. & St. L. Ry. Co. v. Rudy (Ind. App.) 87 N. E. 555. That a rate given to a shipper may be in violation of the rates fixed by the Interstate Commerce Commission does not affect the carrier's liability to respond or the shipper's right to recover for loss of the goods, though both the carrier and the shipper might be subject to criminal prosecution, and though the carrier might recover the charges fixed by the commission. Central of Georgia R. Co. v. Butler Marble & Granite Co., 8 Ga. App. 1, 68 S. E. 775.

52 Ante, §§ 118, 128.