Greek-American Produce Co. v. Illinois Cent. R. Co.

• Decision Date: 09 May 1912
• Citation: 4 Ala.App. 377,58 So. 994
• Parties: GREEK-AMERICAN PRODUCE CO. v. ILLINOIS CENT. R. CO.
• Court: Alabama Court of Appeals

58 So. 994

4 Ala.App. 377

GREEK-AMERICAN PRODUCE CO. v. ILLINOIS CENT. R. CO.

Court of Appeals of Alabama

May 9, 1912

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by the Greek-American Produce Company against the Illinois Central Railroad Company. From a judgment for defendant plaintiff appeals. Reversed and remanded.

S. B. Stern and J. A. Mitchell, both of Birmingham, for appellant.

Percy, Benners & Burr, of Birmingham, for appellee.

DE GRAFFENRIED, J.

1. The appellant brought this suit against appellee to recover damages because of an alleged delay by the appellee in delivering to the appellant a car load of grapes, which were shipped from Derby, Mich., to T. O. Milton, at Birmingham Ala. Milton was the agent of appellant, and the car load of grapes belonged to appellant, and were ordered by Milton for appellant; but these facts were not known to appellee. Milton's business office adjoined that of appellant in the same building; and during the period covered by this controversy Milton was in Birmingham and at his usual place of business. The situation of the parties was such that it is plainly inferable that, if notice of the arrival of the grapes in Birmingham had been given Milton, the appellant would at once have been informed of that fact.

Under the terms of section 5604 of the Code of 1907, railroad companies are required to give notice, by mail or otherwise, to the consignee of the arrival of shipments, together with the weight and freight charges thereon. In the instant case Milton was the consignee named in the bill of lading, and he was the party to whom this section cast the duty upon the appellee of giving the required notice. While the grapes were shipped from Michigan to Alabama, and the shipment was therefore an interstate shipment, the delivery was to be made in Alabama; and, in so far as the mere subject of delivery is concerned, the shipment was governed by the laws of Alabama. So. Ex. Co. v Gibbs, 155 Ala. 303, 46 So. 465.

When a statute prescribes a duty, and a contract is made involving the performance of that duty, such statute becomes a part of the contract. This proposition is well recognized and needs no citation of authority to sustain it. As the above statute provides that the notice required to be given the consignee may be given by mail or otherwise, and allows the agents of the railroad company 24 hours within which to mail, or by other methods give, the required notice after the arrival of the freight we can see nothing unreasonable in that part of the statute, and can find no ground upon which, as to the requirements as to notice, it can be held to be in conflict with any of our constitutional provisions. Central of Ga. Ry. Co. v. Groesbeck & Armstrong (Sup.) 57 So. 380, present term.

The appellee was therefore, by virtue of its contract of affreightment, made in Michigan, but to be performed in Alabama, under the duty of notifying the consignee of the arrival of the grapes in Birmingham within 24 hours after their arrival, and, failing to do so, was liable, for a breach of its contract, to the appellant for any damages resulting from such breach and flowing therefrom as the natural and proximate result, in the usual course of things, of such breach of the contract. As the appellant was the real party to the contract, Milton being a mere agent of appellant, the appellant was entitled to sue, in its own name, for the damages resulting from the breach of the contract. Manker v. Western Union Telegraph Co., 137 Ala. 292, 34 So. 839.

2. We are unable to subscribe to the doctrine announced by the trial court in some of the written charges given by it to the jury, at the written request of appellee that the appellee had a right to deliver the grapes by placing the car at a point on its tracks in Birmingham at an accessible place for unloading by the consignee. Section 5605 of the Code settles this question conclusively. This section provides that railroad companies shall deliver freight at their depots or warehouses, or, in case of shipment for track delivery, shall place loaded cars at an accessible place for unloading within 24 hours after arrival, computing from 7 o'clock a. m. of the day following the arrival of such freight. By the words "track delivery" are meant tracks operated and maintained by railroad companies, at an accessible place for unloading cars, for the purpose of delivering freight in car load lots. Any other construction of the statute would lead to the most absurd consequences, defeat the obvious purposes of the Legislature in calling it into existence, and place in the hands of railroad companies a dangerous weapon, which no enlightened state would permit them to...