C. P. Long and J. M. Boone, for appellee.

This suit is based on the fact that the Asa W. Allen Company shipped a carload of mules from St. Louis on April, 1909, to Tupelo, Mississippi, and soon after the delivery of the said mules it was discovered that one of the mules was sick or in some way injured, as inferred from the mule's movements, as it seemed that the mule was stiff and in pain. Upon the trial of the case it was shown that the car was properly handled from St. Louis that would cause the injury to this mule, and that there were none of the other twenty-seven head of mules in this car in any way injured. The proof further showed that the car arrived at Tupelo, without any accident or anything happening that there were no external signs of injuries by the way the animal lived something over ten days and then died, and there were no bruises or marks on this mule.

The appellant's contention is that they faithfully and fully discharged their duty as carriers of the said car of mules from St. Louis to Tupelo, and the proof in this case does not show any negligence on the part of the railroad company.

The railroad company is not an insurer of live freight, and its responsibility for the same is not absolute for the safety of the animals, as is the rule with inanimate goods. The counsel for appellant seems to admit that the universal rule adopted by this court does not hold the carrier liable as to live freight in the same way as it does as to inanimate goods and recognizes the difference set up by our court in its former decisions on this subject but contends that this is unreasonable and unfair and that all of those former decisions ought to be overruled. This court is simply in harmony with the text-writers on this subject, and, at least, the overwhelming weight of authorities from other courts.

Hutchinson on Carriers (2 Ed.), sec. 217, uses the following language: "It has indeed been very much ques

tioned whether in the transportation of live animals, the carrier can be considered in any respect as undertaking the service as a common carrier."

And this same author in this same edition, section 218, uses the following language: "The liability of the common carrier of animals, it is said, is essentially different from that of the carrier of merchandise or of inanimate property. While common carriers are insurers of inanimate goods against all loss and damage except such as is inevitable or caused by public enemies, they are not insurers of animals against injuries arising from their nature and propensities, and which could not be prevented by oversight, vigilance, and care. In the transportation of live stock, in the absence of negligence, the carrier is relieved from responsibility for such injuries as occur from or in consequence of the vitality of the freight. He does not absolutely warrant live freight against the consequences of its own vitality. Animals may injure or destroy themselves, or each other; they may die from fright or from starvation, or they may die from heat or cold. In all such cases, the carrier is relieved from responsibility if he can show that he has provided all suitable means of transportation, and exercised that degree of care which the nature of the property requires."

This court has adopted the same rule, beginning in the case of Railroad Co. v. Ables, 60 Miss. 1017; and then upheld and repeated in the following cases: Railroad Co. v. Biggers, 66 Miss. 319; Teams v. Railroad Co., 75 Miss. 147; Railroad v. Cox, 40 So. 547; Railroad Co..v. Davis, 43 So. 674.

This last case of Railroad Company v. Davis and Levy is on all-fours with the case at bar. The railroad company could have well afforded to close its case when the plaintiffs' testimony was all in, for the reason that the evidence of the plaintiff does not show, or even tend to establish any negligence on the part of the railroad com

pany in the transportation of the said mules; and does not establish, only by conjecture, the cause of the death of this mule; the evidence was absolutely silent as to what caused this mule's death, whether from a disease or an injury. While it is true that the plaintiff introduced the evidence of Mr. Allen and Mr. Long that the mule appeared to be internally injured, yet there was never any examination of the mule for such injuries by a veterinary surgeon, or any reason given by these witnesses as to why they thought the mule was internally injured except the fact that the mule appeared to be stiff and did handle himself like he was internally injured. If the mule had been internally injured by an accident upon the railroad of sufficient severity to cause his death, there would necessarily have been some external sign of such injury.

The evidence leaves this case with the naked statement of fact that the mule was transported along with twentyseven in number and unloaded at Tupelo, Miss., without any notice or discovery there of any defect in the car, or any noticeable injury to the mule, and no other mule in the car was hurt in any way; and after a length of time the mule simply died; therefore, being absolutely silent as to how the mule was injured, if injured, and absolutely indefinite as to what caused the mule's death, if anything. This is a stronger case on its facts, if possible, than any of the other cases above cited in this brief; and the plaintiff did not, therefore, meet the burden of showing negligent injury by the carrier, or such other facts as to the character of the injury or other circumstances indicating that the injury was the result of any negligence of the defendant; nor is there a hint in the testimony, or anything in the most remote way, tending to show that the mule received any injuries while in the possession of the railroad company. So far as this record goes and shows, the mule was suffering from an unknown disease from which, after something over ten days, he died.

COOK, J., delivered the opinion of the court.

This is an action against the appellee for alleged injuries to a mule, occurring while being transported from St. Louis, Mo., to Tupelo, Miss. The circuit court instructed the jury to find for the defendant railroad company. It is practically conceded by appellant's counsel that we must overrule a long line of decisions of this court in order to reverse.

We do not feel warranted in doing this, and the case is affirmed.

Affirmed.

YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY V. KIRK.

[58 South. 710-834.]

1. LIMITATION OF ACTIONS. Bar. Necessity of pleading. Judges. Disqualifications. Objections. Necessity. Constitution 1890, Sec.

165.

The defense of the statute of limitation in bar of a civil suit for the recovery of a statutory penalty need not be specially pleaded, it may be raised by the evidence under a plea of the general issue, the same rule applying as in a criminal case where the suit involves a penalty.

2. JUDGES. Disqualification. Constitution 1890, Sec. 165.

A judge without the consent of the parties to the suit, is disqualified to sit in a case under Constitution of 1890, section 165, so providing, where plaintiff's attorneys are his son and brotherin-law and interested in the outcome of the case, having taken the case on a contingent fee.

3. SAME.

In such case since the disqualification of the judge may be waived by the consent of the parties and the judge, his judgment is not void per se but only voidable, and hence his disqualification must be reasonably suggested or it will be considered waived.

Brief for appellant.

[102 Miss.

4. SAME.

Where defendant's attorneys did not learn of the facts disqualifying the judge until after a verdict in the case, an objection to the judge will be in time if made on a motion for a new trial for the first time.

5. ON SUGGESTION OF ERROR. Limitation of Actions. Pleading. Rules of court. Application.

The statute of limitations in bar of a suit for a statutory penalty must be specially pleaded.

6. COURTS. Rules. Application. Supreme court.

The rule of the supreme court adopted January 4, 1910, has no application to the practice or procedure in other courts.

APPEAL from the circuit court of Yazoo county.
HON. W. A. HENRY, Judge.

Suit by G. W. Kirk against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Barnett & Perrin and C. N. Burch and Mayes & Longstreet, for appellant.

We submit that the giving of the peremptory instruction on the second trial with regard to the statutory penalty was clearly erroneous, nor can we conceive how the judge was led into such error. The rule with regard to the giving of a peremptory instruction is well settled. "In granting a peremptory instruction the court assumes as true all testimony tending to establish the issue in favor of the losing party." Tribette v. Railroad, 71 Miss. 212. "If there is any conflict in the evidence the view most favorable to the party against whom the instruction is asked must be taken as true." Carson v. Leathers, 57 Miss. 650. "Where there is a material conflict in the evidence, a peremptory instruction should not be given." Timberlake v. Compress Co., 72 Miss. 323. If these decisions are not obsolete, then a perusal of