Western Railway v. Harwell

HEAD, J. — Case, against appellant, for . negligence in transporting, as a common carrier, plaintiff’s mule, causing its death. Plaintiff shipped a car load of ' mules from Columbia, Tenn., to Opelika, Alabama. He entered into a special contract in writing, with the receiving carrier, the Louisville & Nashville Bailroad Company, for and on behalf of that company “and its connecting lines,” whereby that company undertook to carry the mules to Montgomery, Alabama, and deliver them to a connecting carrier for transportation to Opelika. The contract exempted the company and its connecting lines from certain of their common law liabilities as common carriers, and imposed certain duties on the shipper in respect of the care and treatment of the stock in its transportation. It contained this clause: “And it is further agreed that when necessary for said animals to be transported over the line or lines of any carrier or carriers to the point of destination, delivery of the said animals may be made to such other carrier or .carriers for transportation upon such terms and conditions as the carrier may be willing to accept; provided that the terms 'and condition of this bill of lading shall inure to such carrier or carriers unless they shall otherwise stijculate, but in no event shall one carrier be liable for the negligence of another.” Opelika, Ala., is named in the contract as the point of destination, though, as we have said,'the obligation of the receiving carrier was to carry to Montgomery only. When this case was before us at a former term (91 Ala. 340) we ruled, that the defendant, receiving the mules at Montgomery from the Louisville & Nashville Bailroad Company and transporting them to Opelika under an acceptance or ratification of the contract made in its behalf by the receiving carrier, became entitled to the benefit of the stipulated exemptions. We adhere to that ruling. The defendant by its pleas 4, 5, 6 and 8, set up special defenses, growing out of the stipulated exemptions; These pleas contain no allegation of acceptance or ratification of the contract by the defendant, and its. carriage of the freight thereunder; and the court properly sustained a demurrer to them on that ground. It, does not appear that the Louisville & Nashville Bailroad Company was authorized or undertook to bind the defendant, to the terms of the contract, but on the contrary, it was by the contract itself expressly — 346 — left open for the connecting lines to accept the terms made for them or not, at their option. In such case, the law raises no presumption that the defendant, as a connecting-carrier ratified the contract and carried the freight under it. It must have shown its ratification by some act or course of contract on its part, developed at some period from its receipt of the mules at Montgomery, to the delivery to the consignee at Opelika; and such act or course of conduct should have been alleged. After the demurrers were sustained, the defendant amended its pleas by adding, “that the defendant received said mule, as a connecting line, on a through way-bill, from the Louisville & Nashville Railroad Company, showing that it was shipped from Columbia, Tenn. to Opelika, Alabama, at a release rate, which was a reduced rate of freight, and that the defendant received and transported said nrales, under said contract made by the Louisville & Nashville Railroad Company, and plaintiff, as heretofore set out in said pleas.” We think the concluding-clause of this amendment, that “defendant received and transported the said mules under said contract,” &c., is the statement of a conclusion merely, not allowed in pleading, and adds no force to the pleas. Is what remains sufficient to show prima facie an acceptance and ratification of the contract? We think the allegations are too vague and indefinite. The alleged way-bill as the plea avers showed that the mules were shipped from Columbia to Opelika, “at a release rate which was a reduced rate of freight.” We may infer, from this averment, that the way-bill showed, by the terms or expressions it employed, that, in consideration of a reduced rate from Columbia, Tenn., to Opelika, Ala., the shipper had released the carriers from some common law liability ; but we can only infer it. Such language is too indefinite to constitute good pleadings; and the court committed no error in sustaining the demurrer, on the ground assigned, that it does not appear that defendant received and transported the mules under the contract. There is nothing in the other grounds of demurrer. The reduction of freight conceded by the Louisville & Nashville Railroad Co., even though only for the carriage of the mules to Montgomery, was a sufficient consideration to support the shipper’s promise to release the connecting lines from common law liability for the carriage of the freight beyond Montgomery. The other grounds are so manifestly not well taken, it is unnecessary to notice them especially. After demurrer sustained, defendant further amended adding; “that de — 347 — fendant accepting and complying with the contract aforesaid, charged and collected a released rate, which was a reduced rate of freight over its line of railroad for the transportation of said mules.” Issue was joined on the pleas so amended. The first replication is clearly bad. It neither distinctly traverses, nor confesses and avoids the pleas. It shows that plaintiff received the written contract alleged in the pleas to have been entered into and under which, it is alleged, the mules were carried and does not, by the allegation of any fact, sho-w that the same did not then become the contract under which the mules were carried, or that they were carried under any other or different contract. The fact, as averred in the replication, that the mules were shipped (a fact which may have been accomplished, so far as the replication shows, by the mere delivery of the mules to the ' carrier for transportation) before plaintiff received the contract, or the fact that plaintiff did not know the terms of the contract until he received it, does not avoid the allegation that the written contract was entered into, and the mules carried under it. See this case, 91 Ala. 340. The court erred in overruling the demurrers to that replication. If there is any merit in the third replication, it is in its concluding statement, that the defendant did not receive said animals under any . agreement; and this is nothing more than a joinder in issue upon the pleas, forming an issue already formed upon the record of the filing of the general replication. The remainder is but the conclusion of the pleader, having no place in good pleading. But we can not consider the demurrer because it is directed to a part only of the replication. A plea or replication, as a whole, is either good or bad. Demurrer does not lie to a part of it only. See the elementary works on pleading. Appellant insists that the undisputed evidence shows its ratification of the contract, and that the court should have so instructed the jury. The evidence shows without conflict that defendant received the mules from the L. & N. B. B. Company, at Montgomery, and transported them to Opelika, in the same car in which they were shipped from Columbia; that it received and used the same way-bill which had been used from Columbia. That way-bill showed that Opelika was the destination of the car, the amount of freight charges to be collected for the receiving carrier, the stock-yard charges in Columbia, and the feed bill at Montgomery. To these were added the defendant’s freight charges. All these charges were collected from — 348 — plaintiff by defendant’s agent at Opelika, on the day the mules were delivered. The way-bill also showed that the mules were shipped at owner’s risk, and at a release rate of freight. It is not pretented that defendant made any new contract with the plaintiff. Defendant’s agent testified that the freight charged by defendant, to-wit: $22.00, was the established release rate; that is, the rate charged when stock is shipped at owners risk ; and produced the printed tariff of the company in force at the time of this shipment, Avhich Avas introduced in evidence and shoAvs that such Avas the release rate. Both his testimony and the printed tariff showed that the regular rate, Avhen stock is shipped at carrier’s risk, is a very much larger sum than the amount charged for this shipment. There is no evidence which it can be insisted is in conflict with this, except the testimony of the plaintiff to the effect that he had frequently shipped car loads of mules over defendant’s road from Montgomery to Opelika, prior to the date of the tariff offered in evidence, running through a period of several years, “without any contract,” and paid the same rate, $22.00. This testimony unexplained Avould raise the presumption that $22.00 Avas the regular rate, without a release. It is only a presumption, howeArer, casting on defendant the burden of showing that at the time of the shipment in question, the amount charged was the established release rate. That burden Avas sustained, in the present case by the testimony above alluded to, which in no wise conflicts with the testimony of the plaintiff. The testimony of both may stand and truth and correctness be accorded to both. We think, under this evidence, it is our duty to hold, as matter of law, that the mules were carried by the defendant under the special contract. The court therefore erred in refusing charges b. c. d. and 20 requested by defendant. The 6th and 8th pleas set up, in bar of the action, the alleged failure to give notice of the injury to defendant’s agent, before the animals were removed from the place of delivery to plaintiff, and before they were mingled with other animals, as plaintiff had stipulated in his written contract to do, as a condition precedent to a right of recovery on his part. We ruled, on the former appeal, that the sufficiency of the notice given Avas for the jury, and see no reason to hold otherwise uoav. Charge 17 was, therefore, properly refused. Charge 8 is faulty, in that it ignores the qualification of the words of the contract which the law implies, — 349 — and wliicli we had occasion to notice in our former ojfinion. We held before, and hold now, that, under the contract, any recovery by plaintiff, in this action, is limited to $100.00. Charge b was improperly given and charge 32 improperly refused. We next dispose of the questions arising upon the general issue. It will be observed that this action, as the complaint is framed, is not predicated upon the absolute liability of the defendant as an insurer of safe delivery, but upon the alleged negligence of the defendant and its servants, in the transportation of the mules. Both counts of the complaint are distinctly to that effect. Negligence, therefore, is the gravamen of the action and any recovery by the plaintiff must be founded upon it. This being so, the special contract is immaterial to the cause, except as it is necessary to support the special defences growing out of it, and as its recitals affect the burden of proof as to the condition of the car, or exert an influence upon the weight of other testimony. The evidence tends to show that the mule was injured after it went into defendant’s custody, and while in its custody, by having its head pierced by a nail or spike of some kind. The nail or spike was discovered, and its existence and agency in producing the injury are shown, if at all, only by inference, to be drawn from the nature of the wound.' The evidence also tends to show that the mules were taken out of the ear at Montgomery, and fed, but by whom the record is silent. With this exception, they remained in the car throughout their transportation. The onty inference the jury could have drawn therefore, as to the location of the nail or spike, was that it was in the car, or at some place to which the mules were carried when talcen out to be fed. It is insisted by appellant that the undisputed evidence rebuts all inference of negligence on its part, in respect to the condition of the car and any injury the mule may have received by the nail or spike therein. This insistence raises the inquiry whether the exercise of ordinary care, under the circumstances, required the defendant to examine the car on the inside, in Montgomery, for projections which might endanger the safely of the mules. There is no dispute in the material facts. The special contract contains this clause : “And it is further understood and agreed that said party of the second part” (the plaintiff) “has examined and found in good order and condition the car or cars provided by said party of the first part for the transportation of said animals, — 350 — and hereby accepts the same, and agrees that they are, as thus provided, suitable and sufficient for said purpose.” This recital and stipulation, as we held, on the former appeal, place the burden on ]ilaintiff of showing that the car was not in proper condition and that the injury resulted therefrom. It not only places the burden of proof, but is a material fact to be considered in measuring the defendant’s conduct — in determining the quantum of diligence which devolved on the defendant when the car reached its custody in Montgomery. It is a further fact that plaintiff was, himself, with the car in Montgomery, and examined the mules therein, and notwithstanding his stipulation as contained in the clause above quoted, and the burden he thereby assumed in respect of the condition of the car, he did not regard a further examination by him necessary and made none. The mules had been brought from Columbia in that car without injury. The defendant’s inspector carefully examined the car, as a part of the train, on the outside, and found it in good running condition. It then contained the mules, about 22 head, and an examination of the car on the inside would have necessitated their removal. Eapid transit — dispatch in the transfer at Montgomery, and the carriage of the mules on to Opelika, — was contemplated by both parties. Such transfers, and the inspection to be made during their occurrence, must needs be made according to some order and system adopted by the railroad company, and by persons appointed for that duty. Attention must be given to all cars coming into their custody, and all other duties reasonably imposed upon the inspectors must be performed. There was nothing to indicate to the inspector the existence of the nail or spike inside the car. In view of these facts, the simple question is, was it the duty of the inspector to remove the mules and examine the car on the inside for dangerous projections ? We are clearly of the opiidon it was not. The court erred in giving charge A, and refusing charges 2,3 and 19. It is uncertain, from the testimony, whether the mules were taken out and fed in Montgomery, by the defendant or by the L. & N. E. E. Go. If by the defendant, it was its duty to account for them during that period, and shows that the injury did not then occur; or if it did, that it was without negligence on its part. It is not claimed by appellee that there was any negligence in the movement of the car from Montgomery to Opelika. The evidence is without conflict that the track was in good order, the train properly manned and that it went regularly through without accident or casualty, or an — 351 — unusual jolt or jar. That was all the defendant could do in furtherance of a proper movement of the train. Upon the principles declared in this opinion the oral charge given by the court was erroneous, and charges 3, 13, 20 and 23 should have been given. If the evidence showed that the mules were not taken out and fed by defendant, and did not reach its custody until they were put back in the car, then the general affirmative charge for the defendant should have been given. It is unnecessary to notice the other charges. ^Reversed and remanded.