Western Ry. v. Hart

ANDERSON, J. The complaint was amended in its-entirety on May 28, 1908, subsequent to the adoption of the Code of 1907, and the rulings complained of by the appellant relate to the said amended complaint. Section 5329 of the Code of 1907 says: “All actions ex delicto may be joined in the same suit, and may be joined with actions ex contractu arising out of the same transaction, or relating to the same subject-matter, and the issues may be determined separately by the jury, and the proper judgment shall be rendered by the court and the costs fairly apportioned.” Each count in the case at bar relates to the same subject-matter, and whether some are ex contractu and some in tort, if such is the case, would not, under the present statute, operate as a misjoinder, if they all arose out of the same transaction or related to the same subject-matter. It is true the cause of action arose and the suit was brought before the adoption of the Code of 1907; but the pleading complained of was filed subsequent to the present Code. While section 10 of the Code of 1907 stays the application of the Code in certain instances, -it expressly authorizes it to apply to “changes in forms of remedy or defense, to rules of evidence, and to provisions authorizing amendments of process, proceedings or pleadings in civil cases.” The demurrers proceeding upon the theory of a misjoinder were properly overruled. Counts 2 and 2a are upon contract for a failure to-safely transport the fruit, and the negligence set up by the servants of the defendant as to the failure to use the ventilating appliances belonging to the refrigerator car was but descriptive of the breach. If the fruit could [612] have been saved by using the ventilating appliances, it was the defendant’s contractual duty, whether as carrier or warehouseman, to resort to all reasonable means to preserve the fruit, and the use of the ventilating appliances was a most reasonable requirement of a contract either to ship or store, and a failure to do so would be a breach of contract for a reasonably safe transportation as carrier or retention as a warehouseman. The demurrers insisted upon as to counts 2 and 2a and 5 and 5a were properly overruled. As above set forth, it was unnecessary to decide whether or not some of the counts were in contract or tort, as they related to the same subject-matter and were not subject to the demurrers for misjoinder; but, inasmuch as a plea of the statute of limitations of one year was interposed, it becomes necessary to construe the counts, as said plea would be an answer to those in case, if any of these were. The appellant insists that those seeking to recover of the defendant as a warehouseman are in •case, and which are counts 5, 5a, 6, and 6a. It seems to have been in former times a very perplexing question how the form of action in case and assumpsit against a carrier should be determined. “It seems, however, to be finally settled that while the allegation of a promise in the declaration will not be sufficient to impress upon it the distinctive feature of a declaration upon the •contract, because the words 'agreed,’ 'undertook,’ or even the more significant word 'promised,’ must be treated as no more than inducement to the duty imposed by the common law, yet, if there be an averment of a promise and a consideration, the declaration will be construed to be upon the contract, and not for the breach of duty.”— Hutchinson on Carriers (3d Ed.) § 1328; Tallassee Falls Co. v. Railway, 117 Ala. 520, 23 South. 139, 67 Am. St. Rep. 179. The counts in question not only claim for the [613] breach of a contract; bnt aver that “the defendant undertook as a warehouseman for a reward, and for the benefit of the plaintiff,” and, we think, set up a contract, and the plea of the statute of limitations of one year was no bar to same, and the trial court did not err in sustaining the demurrer to said plea. The third plea, if not otherwise bad, attempts to set up defendant’s own negligence in not getting a waybill as an excuse and defense. Pleas 7 and 14, attempt to answer counts 1 and la as amended. They do not deny the contract, but seek to avoid a compliance therewith because it failed to get a waybill without negligence on its part. The defendant was not prevented by the plaintiff from getting the waybill, and the failure to procure said waybill, whether through negligence or not, did not relieve it from transporting the goods safely, except, of course, in case of loss or destruction in the excepted cases, and which is not set up in the pleas. The defendant could as well set up that, after undertaking to deliver the goods, its engines got out of fix or it had no fuel, etc. Pleas 11 and 18 attempt to answer counts 6 and 6a as amended. They are evasive, and do not traverse the complaint. They merely deny that Howard & Kornegay did make known to them that they were inquiring for the oranges in question, but do not deny that defendant informed Howard. & Kornegay that they had no oranges in S'elma in its possession or under its control at the time. Plea 4 does not negative defendant’s negligence as the proximate cause of the decay. The limitation set up in the contract relates to a decay caused by the weather- and arising during the ordinary time and method of transportation, and does not limit the carrier’s liability against a decay or loss caused by its negligence. [614] The fifth plea attempts to set up contributory negligence of the consignee for failing to call for the oranges for four days after the arrival in Selma, but avers no duty on the part of the consignee to do so. It avers no notice of the arrival, or any facts that would relieve the defendant from giving said notice. Plea 6 avers the safe transportation and arrival of the oranges, and prescribes the delay in calling for same as the proximate cause of the damage to same. If the fruit was shipped with bill of lading attached, and by the terms of the contract could only be delivered to the holder or assignee of the bill of lading, it might be incumbent upon the holder to present same in order to get the fruit. But the failure to present the bill of lading and call for the fruit may have been due to a want of notice of the arrival. The plea, does not aver notice to any one of the arrival, notwithstanding it avers that the bill of lading required notice of the arrival. When a carrier undertakes to transport perishable goods in cars constructed and operated for that purpose and having appliances for ventilation, it assumes the contractual duty of so handling or manipulating the car as to make all the improvements and appliances available for the preservation and safe transportation of the goods, there being nothing in the contract to the contrary. Pleas 8, 9 and 10 do not set up any provision in the contract relieving the defendant from ventilating the car, but set up a custom among the railroads in Alabama and Florida of not using the ventilating appliances unless the waybill expressly required the same to be done. Custom is only evidence of fact, not of law, in cases where the contract is expressed in language of ambiguous, technical, or doubtful .meaning, or is silent upon some material inquiry of fact. “To establish such custom, and make it operative in any given case, it must be reasonable, not [615] against the law or public policy, not opposed to any express terms of the contract, and must be so general and so known as to justify the presumption the parties knew of it, and contracted in reference to it.” — Buyck v. Schwing, 100 Ala. 855, 14 South. 48, and authorities there cited. Whether or not the custom set up is reasonable, and not contrary to law or public policy, we need not decide, as there is no averment that said custom was so general or so known to the public as to justify the presumption that it was known to the shipper in this instance. The trial court did not err in sustaining the demurrer to pleas 8, 9, and 10. The judgment of the city court is affirmed. Affirmed. Dowdell, C. J., and McClellan and Sayre, JJ., concur.