Southern Railway Co. v. W. T. Adams Machinery Co.

SAYRE, J. — There was objection to the amendment made by the addition of count 6 on the ground that it was a departure from the cause of action stated in the original complaint and operated a misjoinder of counts. Count 1, which constituted the complaint at the time of the filing of the amendment, followed the form laid down in section 5382 of the Code — then section 3352 of the Code of 1896 — for an action against a common carrier on a contract of carriage, and stated a cause of action ex contractu. — Tallassee Falls Co. v. Western Railway, 117 Ala. 520, 23 South. 139, 67 Am. St. Rep. 179; N. C. & St. L. Ry. Co. v Parker, 123 Ala. 683, 27 South. 323; L. & N. v. Landers, 135 Ala. 504, 33 South. 482. Not so the amendatory count. Though not expressed with great clearness, the meaning of the count is that the defendant as a common carrier received and agreed for a reward to deliver at Florence to plaintiff’s order certain machinery; that the machinery was carried to its destination in accordance with the contract of affreightment, hut that plaintiff failed to receive it as he would have done before the time of its destruction by fire for the reason that he was misinformed by the defendant as to the fact of its arrival. The count does not disclose the lapse of time between the arrival of the goods at their 'destination and their destruction. Construing the count most strongly against the pleader, we must assume that a reasonable time in which the plaintiff might have had delivery made to him had elapsed, and that the defendant was free of fault except in the particular alleged. There is no averment that the fire was due to any negligence of the defendant, but the — 444 — statement is in effect that plaintiff’s loss was caused by defendant’s breach of a duty arising by implication of law out of the relation of bailor and warehouseman, which under the law grew up between the parties — its duty to inform the plaintiff at any time, on his application, that his goods had arrived and were ready for delivery. The duty of the defendant as a carrier having terminated, and its responsibility as a warehouseman having attached, the defendant was still liable for the wrongful acts of its employes acting within the scope of their employment. Thus, it has been held, that where goods are carried to their destination and notice given, the carrier is, nevertheless, responsible for the loss of the goods if its employes subsequently give incorrect information to the consignee which so misleads him as to prevent him from removing the goods, although the loss is not imputable to any other or different negligence on the part of the carrier. — Butler v. E. T. V. & G. R. R. Co., 8 Lea (Tenn.) 32; E. T. V. & G. R. R. Co. v. Kelly, 91 Tenn. 699, 20 S. W. 312, 17 L. R. A. 691, 30 Am. St. Rep. 902; Berry v. W. Va. R. R. Co., 44 W. Va. 538, 30 S. E. 143, 67 Am. St. Rep. 781; Jeffersonville, etc., R. R. Co. v. Cotton, 29 Ind. 498, 95 Am. Dec. 656; Burlington, etc., R. R. Co. v. Arms, 15 Neb. 69, 17 N. W. 351; Faulkner v. Hart, 82 N. Y. 413, 37 Am. Rep. 574; R. & D. R. R. Co. v. Benson, 86 Ga. 203, 12 S. E. 357, 22 Am. St. Rep. 446; 4 Elliott on Railroads, § 1463. The gravamen of count 6 is the wrong committed by the defendant in misinforming the plaintiff as to the arrival of the freight when it applied for information on the several occasions alleged, thereby preventing plaintiff from applying for and receiving the freight. Such is the cause of action alleged in count 6. The count is ex delicto. — Western Union v. Krichbaum, 132 Ala. 535, 31 South. 607. There is a clear distinction between this — 445 — case and the case of Western Railway v. Hart, 160 Ala. 599, 49 South. 371. In that case the averment was that “the defendant undertook as a warehouseman for a reward, and for the benefit of the plaintiff.” This cause having been tried at a time when actions ex contráctil and ex delicto could not be joined, there ivas error in allowing the amendment. This has been the rule obtaining uninterruptedly in this state from the beginning down to the day when the Code of 1907 went into effect, was the rule when this cause was tried, and, in the exercise of a jurisdiction strictly appellate, we are constrained to follow it on this occasion. The view which we have taken of count 6, in connection with the consideration that under the circumstances there detailed it was negligence per se for the defendant to give the plaintiff incorrect information as to the arrival of the goods at destination, will dispose of the demurrer which was directed specifically to that count. As for any ground stated against the count standing alone, the demurrer was properly overruled. Plea 3 sought to exonerate defendant by showing that the goods had been carried according to contract to Florence in this state, their agreed destination, and the car containing them placed on defendant’s track at oi near the depot; that notice of their arrival was given through the post office; and that they were destroyed by-fire about 20 days later without fault imputable to the defendant. We need to consider only the defect pointed out by the demurrer filed. The effort of the plea is to relieve defendant of responsibility by showing a compliance with section 4224 of the Code of 1896, and tin-subsequent destruction of the goods without neglige ee imputable to the defendant. As setting up a compliant" with the statute, the plea was defective because it fail to allege that the notice was mailed within 24 ’ °u - — 446 — after the arrival of the freight at- its place of consignment as the statute plainly requires. The plea alleges that notice was mailed within a day or two after the arrival of the goods at Florence in this state, and their destruction without defendant’s fault 20 days later More than a reasonable time for the removal of the goods elapsed between the mailing of the notice and the destruction of the goods. — Columbus & Western v. Ludden & Bales, 89 Ala. 612, 7 South. 471. And if the consignee had notice in fact at any time of the arrival of the freight and its readiness for delivery, ánd thereafter a reasonable time expired without a demand for the goods, the manner of the notice was immaterial, and a plea stating these facts would constitute a valid defense.— Fenner v. B. & S. L. R. R. Co., 44 N. Y. 505, 4 Am. Rep. 709; Normile v. N. Pac. R. R., 36 Wash. 21, 77 Pac. 1087, 67 L. R. A. 271. But there is no allegation of notice in fact, but only of facts from which the jury might infer notice When the statute is complied with, the mailing of notice, postage paid, is notice to the consignee. Such is the effect of the statute. But where there is no compliance with the statute, the fact that notice is mailed is nothing more than rebut-table evidence of its receipt by the consignee; and a plea setting forth oulv such evidence, fails to show notice in fact. As an answer to count 1, which set up liability as an insurer, the plea failed to show that defendant’s liability of that character had terminated, as it attempted to do. Treating now the complaint as properly containing both counts 1 and 6, what we said of count 6 while considering the demurrer to the complaint for misjoinder of counts will sufficiently disclose our reasons for holding the plea bad as an answer to that count. As affecting the facts there alleged, notice was immaterial. The plea contains no denial of the facts upon which the count predicates liability. — 447 — Plea 4 is no better than plea 3. Its only difference from 3 is that it alleges that notice was mailed on a date 18 days after the arrival of the goods and only 2 days before the goods were burned, instead of “within a day or two after the arrival of said goods at Florence” as plea 3 averred. Plea 5 alleges that plaintiff in advance of shipment notified Green & Jenkins that the machinery had been shipped, but that the persons named did not call for it until after it had been destroyed by fire Avithout fault on the part of defendant about 20 days later. The plea was demurrable because the notice alleged Avas not notice that the machinery had arrived and Avas ready for delivery, but only that'it had been shipped, meaning, as we must construe it against the pleader, that plaintiff had delivered it to the carrier for shipment. That of course Avas not the notice contemplated by the laAV which has to do with relieving the carrier of its responsibility as an insurer AAdiile preserving its responsibility as a warehouseman. If the plea. Avas intended to assert defendant’s absolution under the la.Av applicable to places other than those designated in the statute to Avhich Ave haAre heretofore referred, or, to state the proposition in another form, if it Avas intended to assert that the defendant was not liable under count 1 for the reason that the statute requiring notice of the arrival of goods affreighted at their destination and their readiness for delivery did not apply at Florence, and that therefore it was the plaintiff’s duty to make inquiry without notice, it was defective in failing to aver facts taking Florence out of the class of cities and toAvns in Avhich the statute is operative. The plea was no ansAver to count 6 for reasons heretofore noticed when considering pleas 3 and 4. — 448 — On principles hereinabove announced the demurrers to the special replications to pleas 6 and 13 as answers to count 1 should have been sustained. These replications in substance set up the facts which had been alleged as ground of recovery by plaintiff in count' 6 of the complaint. As we have seen, this was a departure. Appellant insists that it was entitled to have the affirmative charge as to each count and as to the complaint as a whole. The matter of what notice plaintiff or its consignee should have of the arrival of the goods at destination was a matter about which the parties to the bill of lading had a right- to contract according to their own convenience or pleasure. The evidence showed without conflict that by the contract the shipment was consigned to the shipper’s order at Florence, Ala., with instructions to notify Green & Jenkins at that place. The bill of lading acknowledeged the receipt by the defendant of the goods “addressed to S. O. Notify Green & Jenkins, Florence, Ala.” Defendant’s agents at Florence testified without contradiction that the goods were received at Florence in the afternoon of March 31, 1906, and notice mailed to Green & Jenkins, Florence, Ala., on the evening of March 31st, or noon of April 1st, postage prepaid. The notice was repeated some days later, at latest three days before the destruction of- the goods. The property was destroyed by fire on the morning of April 20th. Under these circumstances the plaintiff could not recover on the first count. —Columbus & Western v. Ludden & Bates, supra. But, apart from any question in respect to the application of the statute of limitation to the sixth count, the evidence as to that count was in palpable conflict and made a question for the jury. We have just recited that provision of the bill of lading which required the defendant to notify Green & Jenkins at Florence. It appeared in — 449 — one aspect of the evidence that Green & Jenkins were in business at Lexington 20 and odd miles from Florence; and that they made the inquiry alleged in the sixth count of the complaint by telephone to defendant’s agent at Florence. One insistence of the appellant is that the court must say as matter of law that Green & Jenkins were not plaintiff’s agents in making the inquiry. But the insistence amounts to an assertion only, unsupported by reason stated or authority cited. We think the cited provision of the contract made Green & Jenkins the agents of plaintiff to receive notice of the arrival of the machinery; whether the inquiry was made in such terms as to reasonably apprise defendant of tlie fact that it related to the shipment in controversy was a question of fact for the determination of the jury. As for the proposition put forward by defendant’s refused charge 10, we cannot concede its correctness. It asserts that neither Mrs. Moore, nor Deaton, nor Kyser, was the plaintiff’s agent in making inquiry for the machinery. Deaton and Kyser made the inquiry, at different times over the telephone while Green stood at their elbow and directed what they should say. Mrs. Moore operated the telephone connection at Florence and repeated the inquiry to defendant’s agent at Florence. The reliability and accuracy of all this as a means of communication was for the jury, and it was for the jury to say whether the message which finally reached the defendant, after percolation through these various agencies, did fairly apprise defendant of the fact that plaintiff was inquiring for the particular goods in controversy. So far as the question of agency is concerned, the persons named became in legal contemplation mere instrumentalities— mere parts of the telephone connection between Green, who was plaintiff’s agent, and the defendant. — 450 — What we have hereinbefore said will indicate onr reasons in disposing of charges 8, 9, and 10, refused to the defendant. They were properly refused. Charge 5 assumes that if the machinery was safely carried to Florence, and remained in the car in which it was shipped, on defendant’s track at or near the defendant’s depot, it was ready for delivery. Computation of the reasonable time in which a consignee may apply for and remove freight begins from the time when the freight is at the place for delivery and ready for delivery in the manner usual or adopted by the parties.— Tallassee Falls Co. v. Western Railway, 128 Ala. 167, 29 South. 203. That was a question for the jury, and the assumption of the charge was erroneous. Charge 6 pretermitted all inquiry as to whether the goods were ready for delivery, and was for that reason properly refused. The effect of both charges 5 and 6 was limited by their terms to the finding under the first-count, and their consideration has been so limited. Green & Jenkins had a contract for the purchase of the machinery, and the shipment was for the purpose of delivery to them. But plaintiff retained title, and the loss fell upon it. The machinery was valued at $700, which included freight to Florence, paid by plaintiff, and the recovery was for that amount with interest. Green & Jenkins had paid $100 on account of the purchase. Charge 7, refused to the defendant, sought to reduce plaintiff’s recovery b3r the amount of that payment. But the terms of sale were that $400 was to be paid on delivery. Plaintiff drew on Green & Jenkins, bill of lading attached, for $300, and had the machinery consigned to its own order, thus evincing its purpose to retain the property until the cash payment was complete. Under these conditions the plaintiff was entitled to maintain its action, if at all, for the full value of the — 451 — machinery, and it was of no consequence to the defendant that plaintiff had in its possession $100 for which it was bound to account to Green & Jenkins. The charge was properly refused. Charge A was abstract, and there was no error in refusing to give it. There ivas no evidence in support of the notion that plaintiff might have minimized the loss, nor was any negligence on plaintiff’s part pleaded. The judgment must be reversed and the cause remanded for another trial. Reversed and remanded. Dowdell, O. J., and Simpson, Anderson, and Evans, JJ., concur. Mayfield, J., concurs in the result.