Melbourne & Troy v. Louisville & Nashville Railroad

MoOLELLAN, J. This is a suit by the appellants, against the Louisville & Nashville Railroad Company, for damages alleged to have been sustained by reason of defendant’s failure to deliver a car-load of lime to the Alabama Great Southern Railroad Company, for delivery by the latter company to the plaintiffs, to whom it belonged. Trial was had without jury, and exception reserved to the judgment rendered; which brings before this court the evidence introduced below, and imposes the duty of reviewing the conclusion reached by the City Court, that on the evidence plaintiffs were not entitled to recover. — Acts 1884-5, p. 216. The car in question had been shipped from Blount Springs, under consignment to plaintiffs at Birmingham. Having arrived at its destination, and notice thereof having been given to plaintiffs, they inspected the contents, ascertained that the lime was in good condition, and paid freight charges. The contract of affreightment was for transportation to defendant’s depot — its place of delivery — in Birmingham,, and delivery at that point to consignees. This contract applied to the transaction at the point from which the liability sought to be enforced in this suit is alleged to have accrued, and imposed on the defendant only the duty of affording plaintiffs an opportunity to receive and take away their property. It involved no duty, unless there was a custom or usage to that effect, to deliver the car to the [448] A. G. S. R. R. Co., for ultimate delivery to plaintiffs. Any arrangement between defendant’s agent and the plaintiffs, providing for such intermediate delivery, was beyond the terms of the subsisting contract, and prima facie beyond the authority of the agent. To make such agreement on his part binding on the company, a custom, or usage, of such long standing and notoriety as presumptively to have been known to, and adopted by the company itself, must have been shown, of thus delivering cars, consigned to parties in the city to other roads centering there, for more convenient final delivery to the consignees. Such usage would have been a part of the contract of carriage, and imposed on the defendant the duty of delivery to another carrier, at the request of the consignee; and from a failure to so deliver would have sprung the liability imputed to the defendant by the complaint here. This usage is not proved. There is some evidence, “that it was customary and usual for railroads centering in Birmingham to make such delivery for their customers and patrons;” but no evidence as to the length of time this custom had existed, nor to the universality of its adoption, or of the-frequency of resort to it, or of its notoriety. And on the other hand, there is evidence which denies its existence in ioio, — M. & E. Railway Co. v. Kolb, 73 Ala. 396. In the absence of a custom, authorizing the agent, at the request of the consignee, to undertake, after the car had reached its destination, a delivery of it at another place, and to another party than the consignee, the arrangement between plaintiffs and the agent was nothing more than a personal and gratuitous accommodation on the part of the latter, beyond the terms of his principal’s engagement, and incapable of fixing any liability on the company, on account of the negligence of the agent in carrying it out. The cases relied on by appellants’ counsel involved very different facts from this case. Of course, there can be no sort of doubt as to the liability of a carrier, under a contract of affreightment for delivery beyond the terminus of its own line, and necessitating transportation by successive lines, for a failure to make actual and efficient delivery to the next succeeding line; but that was not the case here. A. G. S. R. R. Co. v. Mt. Vernon Co., 84 Ala. 173. It is equally free from doubt, that the owner of goods shipped — and prima facie the consignee is the owner — may change his instructions as to their destination, and substitute a different place of delivery; but this, we apprehend, he must [449] do during the transit, and not after their destination has been reached, and the terms of the carrier’s obligation have been fulfilled. — Hutchinson on Carriers, §§ 337, 394; London Railway Co. v. Bartlett, 7 H. & N. 400. The evidence adduced below disclosed only a gratuitous undertaking of the agent, assumed for the accommodation of the plaintiffs, and without obligatory force so far as the defendant was concerned. The conclusion reached on this evidence was, we think, the only one that it warranted. But the third count of the complaint set up, that the defendant agreed to transfer, and did transfer the car in question, to the yard of A. G. S. B. B. Co.; and that it was the usage and custom of defendant, in making such transfers, to give notice to the A. G. S. road of the same, the destination of the car, the name of the consignee, &c., to the end that final delivery might be made; that, by reason of such usage and custom, it became and was defendant’s duty to give such notice in this instance; that it failed to do so, and that from such failure resulted the inability of the A. G. S. B. B. Co. to deliver the lime to plaintiffs, and its consequent loss. A demurrer was sustained to this count; and this action of the court will work a reversal of the case, if the count was good, as we can not see that plaintiffs had, or could have had, the benefit of the facts it avers under any other count of the complaint. — Rice v. Drennen, 75 Ala. 335. The agreement which the count avers on the part of the defendant, to transfer the car, was without consideration, and therefore not binding. The defendant, its alleged agreement to the contrary notwithstanding, need not have transferred the car at all. But, though it thus appears that there was no obligation on defendant to move the car, it is further averred that it did enter upon the performance of this nudum pactum, and that custom and usage imposed on it the duty of discharging this undertaking, once entered upon, in a certain way — that is, by giving .the notice above referred to to the A. G. S. B. B. Co. — and that its failure to so discharge this duty occasioned the loss complained of. It is familiar law, that when one undertakes gratuitously to perform some act with respect to the property of another, he is not bound to do it; but, if the act is performed, it must be done with some degree of care, and the mandatory will be held responsible for any injury or loss that may result from a want of due care in the manner of his performance, Story on Bailments, §§ 165, 174, 175, [450] Applying this principle to the averments of the count under consideration, our conclusion is, that the ruling on demurrer was erroneous. Defendant, without the compulsion of a valid contract, undertook to transfer this car. Its custom and usage, as alleged, were to effect such transfer by giving a certain notice to the A. G. S. R. R. Co. The existence of this general custom imposed upon it the duty to give that notice in this instance. The failure to give it evidenced the absence of that care, the use of which would alone absolve defendant from liability, not indeed as a common carrier, but as a bailee without reward. — Knox v. Rives, 14 Ala. 249; Haynie v. Waring, 29 Ala. 263. The judgment of the City Court is reversed, and cause remanded.