Ga. Pacific Railway Co. v. Hughart

STONE, O. J. The Georgia Pacific Railway Company, at one of its stations, received freight from appellee, with freight charges prepaid, consigned to the shipper at a station on the [39] Alabama Great Southern Railroad, To reach its destination, it was necessary for the freight to be transferred from one railroad to the other at Birmingham, Alabama. The bill of lading made provision for the transfer, and stipulated that-each road should be only liable for losses and injuries suffered while the freight was in its control. This contract, under the law, required of the receiving road, the Georgia Pacific, that it should safely transport the freight over its line to Birmingham, and there safely deliver it to the Alabama Great Southern; and the burden was on it to prove it had done so. The freight failed to reach its destination.-—Alabama Great Southern R. R. Co. v. Thomas, 83 Ala. 348; Jones v. Cin. Sel. & M. Railway Co., 89 Ala. 376. It is not disputed that the freight sued for in this case failed to reach its destination. The bill of lading recites, that the goods when received were “in outward apparent good order.” It also contains this clause: “Released value limited to $5.00 per 100 lbs.,case total' loss.” An agent of the Alabama Great Southern R. R. Oo. testified, “that he opened the car containing the goods in the Alabama Great Southern Railroad Company’s yard at Birmingham, Alabama, four days after the day of the shipment; that the car was sealed and locked at the time he opened it, but that he did not know in what condition this cal- or- its contents had been' delivered by the defendant to the Alabama Great Southern Railroad Company, except that the car was sealed and locked, as above stated, when he opened it; that when he opened said car he saw the box containing-the plaintiff’s goods; that the top was off, and the box was on its side, and the contents on the floor of the car; that he put the goods back in the box, nailed the top of the box on, and then forwarded the box and contents to Green Pond,-the destination of the goods.” The testimony, if believed, proved that the goods sued for were in the box, and the box in outward good order, when it was received by the defendant railroad company, and that the goods failed to reach Green Pond, their destination. The testimony also proves, if believed, that the box had been opened, or had come open, before the car in which it had been shipped was opened in Birmingham. The testimony fails to prove that the freight was delivered safely and in good order by the Georgia Pacific to the Alabama Great Southern, and it fails to-disprove negligence or bad faith on the part of the receiving-railroad’s employés. Considering the whole testimony, we can not affirm that there was no sufficient evidence from which the jury could find that.the goods were lost or abstracted be [40] fore the car containing them was turned over to the Alabama ■Great Southern, and that this loss was not without the negligence or perfidy of some one or more of the Georgia Pacific’s employés. The City Court did not err in refusing to give the general charge in favor of the defendant. It is contended for appellant, defendant below, that if plaintiff was entitled to a verdict, his recovery should have been limited to $5.00 per hundred pounds of the freight that was lost. Its exceptions to testimony, and to charges given, are founded on this contention. There is nothing ill this contention;- for the tendency of the testimony was, and is, that the goods were lost through the negligence or bad faith of the defendant’s employés. In Alabama Great Southern Railway Company v. Little, 71 Ala. 611, it was said: “In the limitation of liability, the carrier can not, in any event, stipulate for more than an exemption from the extraordinary liability the common law imposes; the liability extending beyond that of ordinary paid agents, servants, or bailees, denominated the liability of an insurer. Public policy, and every consideration of right and justice, forbid that he should be allowed to stipulate for exemption from liability for losses or injuries occurring through the want of his own skill or diligence, or that of the servants or agents he may employ, or through his own or their willful default or tort. . . . The -carrier can not stipulate for an absolute, unqualified exemption from all liability, nor can he stipulate that he will answer, in any and all events, only for a sum less than the value of the goods, because, in consideration of reduced rates of freight, the shipper may assent to it. For immunity from liability for his own frauds, no bailee can stipulate; for no man can contract to be safelj'- dishonest.” We fully concur in what was said in Little's' Case, supra, and hold that the City Court did not err in the matter of the measure of recovery. It is not our intention to overrule or qualify what was said in South & North Railroad Co. v. Henlein, 56 Ala. 868, or in the later case of Central Railroad Co. v. Smitha, 85 Ala. 47. In consideration of special rates or privileges granted, a shipper may agree on values in case of loss or injury, provided such agreed valuations are not unreasonable, or arbitrary; and provided further, that no agreement' exempting the carrier from the consequences of his perfidy or gross negligence is binding on the shipper. The rate expressed in the bill of lading before us — $5.00 per hundred pounds — without any reference to the actual value of the thing shipped, is both unreasonable and arbitrary, and is not binding on the shipper. Affirmed.