The judgment of the Circuit Court, referred to in the opinion, was as follows:
The contention of the defendant is, however, with regard to these shipments made between July 16, 1916, and July 28, 1916, that any delay that may have resulted in these shipments was due to an act of God, namely, floods and washouts on its line and that of its connecting carriers which rendered such delay unavoidable. *Page 346
According to the testimony, the conditions relied upon to constitute this defense existed "during the month of July," and must, then, have been within the knowledge of the defendant. And if the carrier accepts goods for shipment with full knowledge of conditions which will probably result in delay, he should notify the shipper of the same or stipulate against the consequences, and, if he fail to do so, he should not be heard to offer as an excuse this very condition.
Applying the well-recognized principle of law relating to the defense of an act of God, the record fully sustains the conclusion of the magistrate.
The defendant also contends that the plaintiff has failed to establish any damages under the stipulations of the contract of shipment, in that he failed to show the market value of the melons at the "place and time of shipment."
It will be observed that the defendant invoked this stipulation of the contract as one of the "defenses" set up in the answer, and if the plaintiff established a market price or value which was not in accordance therewith, it was incumbent upon the defendant to show the correct one, upon well-recognized principles of judicial procedure, if it were prejudiced by the estimate of the plaintiff. Certainly the plaintiff should not fail altogether, because his testimony shows the wrong amount of damages. If he shows too little, then the defendant should not complain, and if he shows too much, then the defendant has, in its pleadings, assumed the burden of showing the correct amount.
Without attempting to discuss the particular exceptions further, the Court is satisfied, after a careful consideration of the entire record, and in exercise of the power given by section 407 of the Code of Civil Procedure, that all of the said exceptions should be overruled. June 24, 1918. The opinion of the Court was delivered by For the reasons therein assigned, the judgment of the Circuit Court is affirmed.