Tallassee Falls Manufacturing Co. v. Western Railway

SHARPE, J. The recitals -found in this record relating to demurrers ¡to pleadings are not such as show or constitute a judgment either sustaining or over-rulings either of the demurrers; and under the rule established by several decisions of this court upon the effect of such recitals the appellant can take nothing by assignments of error based upon them. — Jasper Mer. Co. v. O’Rear, 112 Ala. 247; McKissick v. Witz, 120 Ala. 412; Bessemer L. & I. Co. v. DuBose, 125 Ala. 442; Hereford v. Combs, 126 Ala. 369. The issue joined upon the somewhat meagre 9th plea presents substantially the merits of the case. The •complaint declares alone upon the contract of carriage. The 9th plea sets up “that the cotton sued for in said complaint was destroyed by fire after the defendants duty and liability as a common carrier had terminated and while the goods had been left in its •custody as warehouseman.” To this there was no special replication. The uncontra dieted evidence shows that 437 bales of cotton Avere on the 9th of October, 1895, delivered to defendant, for shipment to plaintiff, at Cowles station, that they all reached that station not later than thsj 12th of that month, that plaintiff receiA^ed notice of arrival and paid at least a part of the freight not later than the 12th and from that time it proceeded to haul the cotton in AAmgons to its factory six miles distant. The platform had capacity for only about 100 bales. After arrival at the station the cotton avus allowed to remain in cars from Avhich they were by defendant un [173] loaded upon the platform so as to keep it filled with hales as others were hauled from it. Unloading and hauling continued until about -one o’clock on the 18th of that month when 103 hales on the platform and 25-bales in a car were destroyed by fire. The bills of lading under which the cotton was shipped provide that “the goods shall be received by the owner or consignee at the station or wharf of the carrier at the ultimate point of delivery, and i'f not taken away immediately on their being landed or discharged may, at the option of the delivering carrier, be sent to a warehouse or be permitted to lie where landed; in either event at the expense of the shipper, owner or consignee. * * * This contract is executed and accomplished and the liability of the company as common carriers thereunder terminates on the arrival of the goods or property at the wharf, station or depot to Which this bill of lading contracts to deliver and the carrier will be responsible thereafter only as warehouseman.” By its terms the bill of lading is made the contract of shipment and except so far as it may be modified by the law itself the parties are bound by them. 'The provision for terminating the carrier’s liability immediately on arrival is subject to * the requirement which the law from public policy injects into the agreement, which continues the responsibility of a common carrier -until a reasonable time and opportunity has been allowed the consignee for receiving the goods. — L. & N. R. R. Co. v. Oden, 80 Ala. 38; 6 Am. & Eng. Eng. Law (2d ed.), 263, and cases there cited. The -stipulation for ending-liability is thus -modified 'but is not abrogated by the law. It must be read as an agreement to end responsibility of the defendant as a common carrier after the lapse of such reasonable time; and so read it may not be changed by proof of local custom or -o-f particular usages, -and plaintiff’s offer to show a custom to allow it a longer time for removing freight was properly rejected. Proof of custom, though proper to be-resorted to in some cases, is never admissible to vary or control a written contract which on its face is free [174] from ambiguity and there are no circumstances to create doubt of the proper application of terms u-sed in the writing. Parties by express stipulations may always exclude any inference that they intend to adopt a custom or usage into their Contracts. — Barlow v. Lambert, 28 Ala. 704; Cox v. Peterson, 30 Ala. 608; Smith v. Mobile, etc., Ins. Co., 30 Ala. 167. The question of what is a reasonable time for receiving from the carrier is often one of mixed law and fact, but when the facts are certain and undisputed the court and not the jury should determine it. — Collins v. A. G. S. R. R. Co., 104 Ala. 390; Col. & W. Ry. Co. v. Ludden & Bates, 89 Ala. 612; Ala. & Tenn. Rivers Co. Kidd, 35 Ala. 209; Hutchinson on Carriers, § 350. Computation of that time -begins when the goods are at the place for delivery and ready for delivery in the manner usual or adopted by -the parities. There can be no inference from the facts in evidence that the cotton ivas not ready for delivery from the time of its arrival at the station or that it was left on the cars during the six days thereafter to suit the defendant’s purposes or for any other reason than the jdaintiff did not employ means to remove it more speedily. The time it was so allowed to remain unloaded is not chargeable to the defendant as -continuing its responsibility -other than a warehouseman. — Gregg v. Ill. Cent. R. R. Co., 147 Ill. 550; Whitney Mfg. Co. v. Railroad Co., 38 S. C. 365; 37 Am. St. Rep. 767; Chalk v. Charlotte R. R. Co., 85 N. C. 423; 9 Am. & Eng. R. R. Cases, 106. In Collins v. A. G. S. R. Co., supra, it was held-as matter of law that six days was more than a reasonable time for receiving from the carrier, and in Col. & W. R’y Co. v. Ludden & Bates, supra, it was held as a legal conclusion that three days was more than a reasonable time for receiving freight which in that -case consisted of a piano. We hold that the ninth plea was sustained by the facts, and that the defendant ivas therefore entitled to the general affirmative charge given in its favor. In the rulings on evidence there is no error prejudicial to the appellants. The judgment will be affirmed.