Central of Georgia Railway Co. v. Sigma Lumber Co.

SAYRE, J. Count 1 avers a course of dealing between the parties in respect to the receipt of lumber for — 629 — shipment from plaintiff’s mill. Defendant maintained a side track at plaintiff’s mill, bnt bad there no office or agent. It is to be inferred, of course, that the side track was maintained for the mutual convenience of the parties in the shipment of lumber. In pursuance of its usual practice defendant, on plaintiff’s request, placed two cars upon the side track to be loaded by plaintiff Avith lumber for transportation on March 16, 1908. Plaintiff notified defendant’s conductor on its train going east to have its next freight train going west to stop and get the lumber and then to receive shipping instructions. The next train going west passed plaintiff’s mill in the afternoon of the next day. Defendant failed and refused to stop its next train going Avest. Defendant received no directions for the shipment of the lumber. During the night after defendant’s next train passed going Avest, plaintiff’s lumber Avas destroyed by fire. There is no allegation that the fire originated or Avas permitted to progress by any fault of the defendant; but it is alleged that the loss of the lumber was the proximate consequence of defendant’s AArrong in failing and refusing to stop its next freight train going west and take aAvay the lumber. The purpose of the count is to state a breach of an implied contract to receive and take away plaintiff’s lumber on a certain train, or at a particular time. Upon a tender of goods to a common carrier for shipment, the carrier is bound, by reason of its general relation to the public, to make all reasonable effort to furnish cars — in this case motive power — for its transportation. But the carrier may enlarge its liability by an unconditional express promise to move the goods at a certain time, and such contract, like all others, must be performed according to their terms.—4 Elliott on Railroads, § 1473; Clark v. Ulster, etc., R. R. Co., 189 — 630 — N. Y. 93, 81 N. E. 766, 13 L. R. A. (N. S.) 164, 121 Am. St. Rep. 848; Wood v. Chicago, etc., R. R. Co., 68 Iowa. 491, 27 N. W. 473, 56 Am. Rep. 861; Gulf, etc., R. R. Co. v. Hume. 6 Tex. Civ. App. 653, 24 S. W. 915. Unavoidable accident, or even impossibility, preventing-compliance, will be no defense, unless it be so stipulated in the contract.—Baxley v. Tallassee, etc, R. R. Co., 128 Ala. 183, 29 South. 451; 4 Elliott on Railroads, § 1473. Damages resulting from the breach of an express contract to furnish cars at a specified time are recoverable in an action on the contract. But the contract must be express, for otherwise the proposing shipper has no action save upon a breach of the carrier’s general common-law duty to furnish cars within a reasonable time.—Lake Shore, etc., R. R. Co. v. Anderson, 39 Ind. App. 112, 79 N. E. 381; Texas, etc., R. R. Co. v. Arnett, 40 Tex. Civ. App. 76, 88 S. W. 448. There is no allegation that defendant delayed an unreasonable time. Nor can it be said as matter of law that it was the duty of the defendant under the circumstances shown "in the count to take away plaintiff’s lumber on its next train. The count avers no express contract. The demurrer to it should have been sustained. We read count 2 as setting out, in addition to what is contained in count 1, an express promise to receive and remove plaintiff’s lumber by defendant’s next train. This count sufficiently stated a cause of action. Appellant, referring to the fact that the fire which destroyed plaintiff’s lumber originated without any fault whatever on its part, argues that, in the aspect of the case presented by count 2, the failure to carry the lumber away at the agreed time was nothing more than one of an interminable series of events without which the loss would, not have occurred, that the fire was an independent intervening cause, and hence that the loss can — 631 — not be attributed to tbat failure as a proximate cause. The necessary and therefore, universal rule is that a wrongdoer shall be held responsible for the proximate consequence of his acts, not for those that are remote. This rule cannot be abandoned without producing the most astonishing and disastrous results. It is to be confessed, however, that, while the rule itself seems to be simple enough, the cases will be read with little appreciation, unless they leave the impression that there is frequent difficulty in its practical application. There can be nothing in the policy of the law, or in the general relations between common carriers and the public, which requires or permits that a rule as to responsibility for consequential damages, different from the rule obtaining between other parties, should be enforced against such carriers. This court has not intended a departure from these rules. But, in line with the ruling of the courts of a number of the states, it has twice been held by this court that where goods are injured or destroyed by providential causes while in the possession of the carrier, and the carrier is in default, as by undue delay, the carrier is. liable for the reason that its default is an operative cause concurrent with the act of God.—A. G. S. Ry. Co. v. Quarles & Couturie, 145 Ala. 436, 40 South. 120, 5 L. R. A. (N. S.) 867, 117 Am. St. Rep. 54; A. G. S. Ry. Co. v. Elliott, 150 Ala. 381, 43 South. 738, 9 L. R. A. (N. S.) 1264, 124 Am. St. Rep. 72. The fact that at the time of the loss or injury complained of in those cases the goods were in the possession of the carrier in its capacity as carrier seems to have been considered as of importance; but the choice between the conflicting lines of authority was determined by the analogy supposed to be afforded by our previous dicisions in Steel v. Townsend, 37 Ala. 247, 79 Am. Dec. 49, and L. & N. R. R. Co. v. Gidley, 119 Ala. — 632 — 523, 24 South. 753. In the Quarles & Couturie Case, the court reproduced from Steel v. Townsend a quotation from 1 Smith’s L. C. 319, where the following language touching the question here at issue was used: “The true view is, not that the carrier discharges his liability by showing an act of God, and is then responsible, as an ordinary agent, for negligence, but that the intervention of negligence breaks the carrier’s line of defense by showing that the injury or loss was not directly caused by the act of God, or, more correctly speaking, Avas not the act of God.” In L. & N. R. R. Co. v. Gidley the contract limited the carrier’s liability for loss by fire to such loss as Avas unavoidable by due care. It Avas held that a negligent delay in forwarding the goods rendered the carrier liable for the loss of the goods by fire before shipment, though no other negligence appeared. In the Quarles & Couturie Case, after referring to Gidley’s case and Steele v. Townsend, it is stated that “the principle Avhich must control is the same Avhether the carrier undertakes to exempt itself from liability as an insurer by the act of God or the public, or by contract against fire not occasioned by its OAvn neglect.” In the Elliott Case the expression was that the act of God and the negligent delay Avere concurring causes. The ruling in both was that the fire pending the delay Avas not an intervening cause, and that the carrier Avas liable “for the reason that it was b'y his fault that they (the goods) were exposed to the peril.” The question in respect to proximate cause was and is the same in all these cases (including the case at bar), and has been deliberately settled here adversely to appellant’s contention. There was evidence tending to sustain count 2. The issues raised by the count and the pleas — the sufficiency of which is not questioned in appellant’s brief — was properly submitted to the jury for decision. — 633 — Count 3 was in the form provided by the Code of 1907 for a complaint on a bill of lading (form 15, section 5382), and, notwithstanding its dubious form, has been frequently held to state a cause of action in contract.— Tallassee falls Co. v. Western Railway, 117 Ala. 520, 23 South. 139, 67 Am. St. Rep. 179, and cases there cited. The carrier’s liability for goods as a carrier begins when they are delivered to it ready for immediate transportation. In Barron v. Eldredge, 100 Mass. 458 (1 Am. Rep. 126), the rule is thus stated: “The responsibility of a common carrier for goods intrusted to him commences when there has been a complete delivery for the purpose of immediate transportation. * * * The delivery must be for immediate transportation, and, of course, it cannot be complete if anything remains to be done by the shipper before, the goods can be sent on their way.” “If a common carrier,” to quote Moore on Carriers, “receives goods into his own warehouse for the accommodation of himself and his customers, so that the deposit there is a mere accessory to the carriage and for the purpose of facilitating it, his liability as a carrier will commence with the receipt of the goods. But, on the contrary, if the goods when so deposited are not ready for immediate, transportation, and the carrier cannot make arrangements for their carriage to the place of destination until something further is done, or some further direction is given or communication made concerning them by the owner, or consignor, the deposit must be considered to be in the meantime for his convenience and accommodation, and the receiver, until some change takes place, will be responsible only as a warehouseman.” — Moore on Carriers, 130. The same principle is laid down in Hutchinson on Carriers (3d Ed.) § 72. A contract imposing upon the carrier the exclusive duty of safe-keeping may be implied by — 634 — usage or a particular course of dealing between tbe parties. But the implication that the carrier assumes the duty of immediate transportation and so responsibility as an insurer, without knowing to what place and to whom goods are to be shipped, must be clear. Accordingly, it was held by this court that, where cars were switched off on a side track of the defendant carrier, there to remain until shipping directions were given, the defendant did‘not become a common carrier in respect to the freight thereon until shipping directions were furnished — this notwithstanding it had been the custom of the carrier for years so to receive freight without other notice than its being placed upon the side track.— A. G. S. R. R. Co. v. Mt. Vernon Co., 84 Ala. 173, 4 South. 350. And in L & N. R. R. Co. v. Echols, 97 Ala. 556, 12 South. 304, it appears to have been assumed as a matter of course that shipping directions Avere necessary to the carrier’s responsibility as an insurer. So, then, the duty and responsibility of the defendant A\rhich are to be inferred from the facts Avere at most the duty and responsibility of a warehouseman only, measured by reasonable reference to the known facilities Avhich it lawfully maintained at that point, or its liability was for a breach of its alleged special contract to take the goods aAvay at a particular time. The third count claims damages for a failure to deliver two cars of lumber received by it as a common carrier. There Avas a material variance between this count and the facts as plaintiff would have them, and defendant was entitled to the general charge as to it. Reversed and remanded. Doavdell, C. J., and' AndeusoN and Evans, JJ., concur.