H. & L. M. Warten Cotton Co. v. Southern Ry. Co.

SOMERVILLE, J. ' The facts set up in defendant’s special plea, numbered 3, show that the status and obligations of a common carrier had terminated before the destruction of the cotton, and exhibited a complete defense to counts 1, 2, and 5 of the complaint, upon which the cause was tried. The notice of arrival of the cotton at its destination was, under the terms of the hill of lading, properly given to the Clayton Shoddy & Cotton Mills. Ordinarily the consignee is the only proper party to be notified, but where the shipper is also the consignee, and designates some other person whom the carrier is to notify at the place of delivery, notice to the shipper consignee is not required. Code, § 5622; Collins v. A. G. S. R. R. Co., 104 Ala. 390, 397, 10 South. 140; So. Ry. Co. v. Adams Mach. Co., 165 Ala. 436, 51 South. 779. In citing the Collins Case, supra, to the point in hand, we of course do not mean to approve the dictum in that ease that in a case like this the direction to notify a designated person of the arrival of the shipment makes him virtually the consignee, and authorizes delivery of the goods to him, a statement which seems to he at variance with all the authorities, including our own decisions. A. C. L. R. Co. v. Dahlberg, etc., Co., 170 Ala. 617, 54 South. 168; 10 Corp. Jur. 359, § 372. The demurrers to plea 3 were properly overruled. As stated by the trial judge in his oral charge to the jury, the real and decisive question in the case was whether or not defendant notified the Clayton Shoddy & Cotton Mills of the arrival of the shipment, more than 48 hours before the cotton was burned. Charge C, given for defendant, is perhaps misleading in its statement that, if notice was given the Cotton Mills on July 24th, “defendant’s duty and liability as a carrier terminated.” We apprehend that the court did not mean to say that they terminated immediately upon the giving of the notice, but only before the burning of the cotton. As applied to the facts—defendant’s evidence tending to show notice given on July 24th, nine days before the admitted date of the burning—the inaccuracy noted was immaterial, and the charge was practically correct. Charge X was a correct statement of the law, based on tendencies of the evidence. Defendant’s evidence tended to show that Potash saw and examined this particular cotton on July 26th, and that he knew from whence it came. Charge AA was also a correct statement of the law applicable to tendencies of the evidence. The chief criticism of charge AA, and also of charge C, is that they ignore evidence which tends to show that the cotton was wrongfully delivered to Potash, thereby fixing defendant’s liability as carrier at that time. We think, however, that the assumption that the evidence has such a tendency is wholly unwarranted. The fact that Potash was allowed to remove the cotton from the car to defendant’s warehouse near the station, where it remained thereafter, in order to save demurrage merely, has no tendency to show that defendant surrendered possession of the cotton, or delivered it in any legal sense, to Potash, and would not support that conclusion. The written agreement between defendant and Potash that notice of freight arrivals could be made by telephone was of no material importance. Section 5604 of the Code requires that notice of such arrivals shall be given by mail or otherwise, and we have heretofore held that the manner of notice is immaterial. So. Ry. Co. v. Adams Mach. Co., 165 Ala. 436, 446, 51 South. 779. The question at issue was whether Potash had notice, and notice by telephone was equally effectual with or without the agreement. The objection to the admission of the agreement is based upon the theory that Potash was the agent of the shippers to receive notice only pro tempore, and that his agreement with the carrier, made about a year previous, when he was not their agent, could not be binding on his principáis, and was as to them res inter alios acta. The answer to this contention is that the agreement was a continuing one, and was therefore in legal effect the same as a special contemporaneous agreement with respect to this shipment; and that, in the absence of any statutory or contractual specification of the mode of notice, the agent might agree as to the mode, consistently with the rights of his principals, and without exceeding his authority in the premises. As tending to show that Potash knew the character of the shipment, and his own relation to the cotton, at the time he examined it, it was clearly competent for defendant to show that he said the cotton did not suit him, and he thought he would get something off; the conversation being about the condition of the cotton. Conceding without deciding that a plaintiff, as here, may recover on a count declaring on an injury to the goods while held by the defendant as a common carrier, where the evidence shows that the shipment was substantially destroyed and no part of it delivered to the consignee, it seems clear *420 that the giving of charge 5 for defendant, though erroneous, was not prejudicial error for reversal of the judgment. In the first place, although the form of the action is different under count 5, yet under the evidence' recovery under count 5 could not have exceeded in amount the recovery authorized under counts 1 and 2, and the same evidence, viz., of destruction of the cotton by fire before the termination of defendant’s liability as carrier, would have supported a recovery under any of the counts. In the second place, there could be no recovery under any count, either for failure to deliver, or for injury merely, unless the jury found on an issue of fact that the Shoddy & Cotton Mills did not receive or have due notice of the arrival of the cotton. The jury’s verdict for defendant on counts 1 and- 2 carried with it, therefore, a finding of fact that there was such notice, and had count 5 been submitted to them on that issue of fact—-as it must have been—it is clear that the same finding of fact must have determined the issue against the plaintiff. We find no prejudicial error in the record, and the judgment will be affirmed. Affirmed. ANDERSON, C. J„ and McCLELLAN and THOMAS, JJ„ concur.