Central of Ga. Ry. Co. v. Burton

McCLELLAN, J. — In the bill of lading issued for the consignment for the loss of which, by fire, this action was brought, it was stipulated, in consideration of reduction in freight rate, that “no carrier or party in possession of all or any of the property herein described, shall be Hable for any loss thereof or damage thereto by causes beyond its control; or by floods or by fire. * * *» T[ie acceptance of the contract containing that stipulation — the stipulation being valid — operated to relieve the defendant (appellant), as a common carrier, from the exacting liability of an insurer, with familiar exceptions, of the goods, and to limit the liability for loss or damage to the goods while in the course of transportation and delivery by the common carrier, as such, to negligence of the common carrier, as such, proximately resulting in its loss or damage. That the loss or damage occurring was without fault or negligence of the carrier is matter of exoneration, exceptional, to aver — 428 — and to sustain which in the proof is the burden of the carrier. These propositions are settled in the following decisions, among others: Steele v. Townsend, 37 Ala. 247, 79 Am. Dec. 49; L. & N. R. R. Co. v. Oden, 80 Ala. 38; Mouton v. L. & N. R. R. C., 128 Ala. 537, 29 South. 602; L. & N. R. R. Co. v. Touart, 97 Ala. 514, 11 South. 756; L. & N. R. R. Co. v. Cowherd, 120 Ala. 51, 23 South. 793; Grey v. Mobile Trade Co., 55 Ala. 387, 28 Am. Rep. 729. See, also, 6 Cyc. pp. 392, 393, and notes. The stipulation involved in Central of Ga. R. R. v. Merrill, 153 Ala. 277, 45 South. 628, was against all liability; whereas, the stipulation above quoted particularizes certain causes of loss or damage that do not necessarily involve negligence of the carrier. — 6 Cyc. supra. When the relation of common carrier, as such, to the consignment ceases, a,nd the relation thereto becomes that of a warehouseman, has been so often stated here as to render restatement at this time entirely unnecessary. In 5 May. Dig. p. 178, and 2 May. Dig. pp. 640-642, may be found many of our decisions announcing the rule. With reference to the termination of the relation of common carrier, as such, to a 'consignment, the effect of our statute (Code 1896, § 4224; Code 1907, § 6137) is to divide delivery points into two classes, viz., those without and those within the statute. Under the statute as written in the Code of 1896, the relation of common carrier, as such, continues in towns or cities of 2,000 population or more, and having a daily mail, “unless within twenty-four hours after arrival of such freight notice thereof is given the consignee, formally or through the mail. * '"' *” In the latter codification (1907) the provision with respect to population is omitted. Otherwise the statute is now the same. The rela — 429 — tion of the defendant to the consignment here involved is affected by the former statute. If La Fayette, the point of destination, had the requisite population, and a daily mail, of course the statute applied to continue the relation as common carrier, unless the notice provided for was given. On the other hand, if these conditions to the application of the statute did not exist, then here was no primary duty on the defendant to give notice of the arrival of the goods, with the effect to terminate the exacting liability of a common carrier, unless a proper custom to the contrary then prevailed with respect to consignments at La Fayette. — Columbus & Western Ry. Co. v. Ludden & Bates, 89 Ala. 612, 7 South. 471. If an effective and applicable custom did not then prevail, the ordinary and often declared rule must be appealed to to determine the question of termination vel non of the liability of the carrier as such to these goods. It cannot be held as a matter of law. considering the status as not controlled by the statute mentioned before, that from 3 p. m. Friday to 1:45 a. m. Monday was a reasonable time in which the consignee could have removed the goods. In C. & W. Ry. Co. v. Ludden & Bates, supra, “three days” was ruled to have been, in that case, a reasonable time for removal. Here “three days” did not elapse between the time when the goods were ready for delivery and when they were burned. While not intending to hold inexorably that Sunday may not be computed in determining when the reasonable time for removal of consignments has elapsed, as affecting the termination of the exacting liability of carriers, yet, in this case, in view of the public policy with respect to the Sabbath, read from our statutes on its observation, we do not think the period indicated, including the Sabbath, was reasonable for the removal of these goods. In short, the opinion is entertained that — 430 — the relation of the defendant to this consignment was that of a common carrier, as such, unless the statute, in this instance, operated; and so, regardless of the alleged custom of giving notice of arrival of shipments at La Payette. Under this contract of affreightment, assuming that the defendant’s liability for the goods was that of a common carrier, and not as a warehouseman, the plaintiff could not recover unless negligence of the defendant infected the burning of the goods. As before stated, the burden was on the defendant to allege, and sustain, in the proof, this negation of its negligence. Aside from possible full proof of pleas essentially faulty under the principles before announced, the defendant, by the evidence introduced, undoubtedly so far lifted the burden resting on it to negative its negligence as to require the jury’s determination of that issue. It was shown that there was no fire left in the depot, in which these goods were, by defendant’s agents from which the fire later occurring could have started. The place was fastened up. The jury’s province it was to say whether these precautions met the obligation of ordinary care and prudence resting on the defendant. A detailed discussion of this phase of the case will be omitted since another trial is to be had. The gist of the replications, as we construe them, is that negligence infected the destruction of these goods, in this, that no notice of their arrival was given the consignee. The replications will be set out in the report of the appeal. Since the action, stated in the Code form (Civil Code, p. 1197, form 15), is ex contractu, it is a question whether these replications are not a departure in afterpleading. This inquiry is not, however, raised or decided. The statute (section 4224, supra) wus not intended to lay upon the carrier an imperative duty to notify the consignee, in a city or town within — 431 — its conditions, of the arrival of the consignment. The whole effect and contemplated purpose of the statute was to affect the relation of the carrier to the consignment. The notice therein provided was to prevent the determination of the more exacting liability of the common carrier until the notice stipulated should be given. It was not the intent of the statute to create a substantive duty. It merely and only conditioned the termination of the severer liability upon defined acts. If the carrier desired to continue under the stricter. liability, it had the right to do so by omitting to avail itself of the statute’s privilege. So much for replication 2. Replication 1 would ground a breach of duty upon a custom to give the notice described. The pleading must be construed most strongly against the pleader. So viewed, it cannot be held that the custom described had any greater effect that to affect the relation of the carrier to the consignment — to modify the liability from that of common carrier, as such, to that of a warehouseman, if the custom, in respect to the notice, was observed; if not observed, that the stricter accountability should continue. Plaintiff’s counsel seem to have based both replications upon the principle announced in the line of decisions to which L. & N. R. R. Co. v. Gidley, 119 Ala. 523, 24 South. 753; A. G. S. R. R. Co. v. Quarles, 145 Ala. 436, 40 South. 120, and Alabama & G. S. R. Co. v. Elliott, 150 Ala. 381, 43 South. 738, 9 L. R. A. (N. S.) 1264, 124 Am. St. Rep. 72, among others, belong. In this line of cases dereliction in some substantive duty concurred with an occurrence, the act of God, for instance — for which the carrier was not accountable — in producing the loss or damage complained of. The principle cannot avail this plaintiff, unless' it can be affirmed that a failure to give the notice, sanctioned, it is alleged, by the custom, was a breach of a substative du — 432 — ty. We have indicated that that view cannot be approved on the pleading here, if at all — -an inquiry we are not now invited to decide. For the error committed in giving the affirmative charge for the plaintiff, the judgment is reversed, and the cause is remanded. Reversed and remanded. Dowdell, C. J., and Mayfield and Sayre, JJ., concur.