Tennessee River Nav. Co. v. Walls

Decision Date26 April 1923
Docket Number8 Div. 558.
Citation209 Ala. 320,96 So. 266
PartiesTENNESSEE RIVER NAV. CO. v. WALLS.
CourtAlabama Supreme Court

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Action for damages for failure to transport cross-ties by Seaborn J Walls against the Tennessee River Navigation Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449,§ 6. Affirmed.

Requested instruction that there could be no recovery by plaintiff, who claimed defendant discriminated against him by carrying freight placed on the river after plaintiff's ties were placed on the river, held properly refused as misleading.

See also, Tenn. River Nav. Co. v. Walls, 18 Ala. App 305, 92 So. 202.

The following charges were refused to defendant:

(1) The court charges the jury that, if the defendant utilized the transportation facilities reasonably obtainable for the transportation of freight, and if such facilities were fully occupied at nearly all times with carrying freight of a more perishable nature than cross-ties, and if the defendant transported plaintiff's ties whenever it could reasonably procure facilities for doing so, then your verdict should be for the defendant.

(10) In the absence of an agreement to the contrary, a steamboat corporation engaged in the business of carrying freight for the public for hire on Tennessee river between Decatur and Chattanooga may, if it elects to do so, devote its entire facilities to the carrying of freight of a more perishable nature, when reasonably required for that purpose, to the entire exclusion of freight of a less perishable nature.

(25) The court charges the jury that there can be no recovery by the plaintiff in this case on the claim that the defendant discriminated against him by carrying freight which was placed on the river after plaintiff's ties were placed on the river.

(26) The court charges the jury that there is no evidence that plaintiff's ties were entitled to priority of transportation over the freight that the defendant did carry.

(9) If defendant's steamboats and barges, which were reasonably available for the traffic between Chattanooga and Decatur, when leaving Chattanooga for Decatur, became loaded to capacity with freight before reaching plaintiff's ties, and if they continued so loaded until they had passed beyond his ties and had reached Gunter's landing with freights destined for points below plaintiff's ties, and if on their return trips from Decatur they became loaded to capacity before reaching plaintiff's ties with freight destined for points on said river above plaintiff's ties, then defendant was under no duty to take on board and transport said ties in the absence of special agreement to the contrary, and if this was true each time that defendant failed to carry plaintiff's ties, your verdict should be for the defendant.

(12) If a steamboat corporation engaged in the business of carrying freight for the public for hire on Tennessee river between Decatur and Chattanooga does not agree specially to carry all freight that may be offered it for transportation or does not hold itself out to the public as ready and willing to carry all freight that may be offered it for transportation, it is not under duty to carry all that may be offered it, but in such case it is under duty to carry so much freight only as it reasonably can carry with the facilities it possesses or controls, and if in such case its said facilities prove insufficient to carry all the freight that is offered it for transportation, it is under no duty to increase its facilities beyond what it voluntarily chooses to provide. And in such case such steamboat corporation is not required to distribute its service proportionately to all points along its route, but may load up its boat or barge to its capacity with the freights first reached by it on any trip and may decline other freights on its route after securing its capacity load so long as it has its capacity load on board.

(19) If plaintiff understood that a flood was coming which might wash away his ties, or if he should have understood this by reasonable exercise of his wits in the light of his knowledge and common experience, then the burden of proof is on the plaintiff to prove that he exercised reasonable diligence to prevent his ties being washed away, and, if he has not proved this to your reasonable satisfaction, your verdict should be for the defendant.

During the trial plaintiff testified that on one occasion he had a conversation with S. C. Whitaker in defendant's office in Chattanooga, when one Wilkey and one McKee were present. He was asked to give the conversation had with Whitaker alone. Defendant objected on the ground that both Wilkey and McKee were dead. The objection was overruled.

Street & Bradford, of Guntersville, for appellant.

John A. Lusk & Son, of Guntersville, for appellee.

THOMAS J.

The charge of the court shows the trial was had on counts 10, 11, and 12; other counts being withdrawn by plaintiff's counsel. Assignments of error challenge the action of the court in overruling demurrer to said counts. Appellant's counsel state they shall confine their "attention" to the rulings on demurrer to counts 10 and 12. This was a waiver of other assignments based on rulings as to count 11. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158.

This is the third appeal. Tennessee River Nav. Co. v. Walls, 204 Ala. 285, 85 So. 711; Id., 18 Ala. App. 305, 92 So. 202. On last appeal counts 10 and 12 were before the Court of Appeals, and held not subject to the grounds of demurrer interposed. The decision therein does not appear to have been brought to this court by certiorari for review. The circuit court followed that decision on the last trial. However, we have considered the grounds of demurrer assigned to counts 10 and 12, summarized as follows: (1) Because the facts averred showed no duty by defendant; (2) it is not averred that defendant, by the exercise of reasonable diligence, could have transported the ties; and (3) it is not averred that defendant was guilty in not transporting the ties. The counts were based "upon a breach of the implied contract" of a common carrier to accept and transport the goods and material described (Mott v. Jackson, 172 Ala. 448, 55 So. 528), and they are sufficient under the statute (Code 1907, §§ 5520, 5549; Tennessee River Nav. Co. v. Walls, supra).

The plaintiff testified that he had "about" the number of ties indicated; that he was giving "his recollection" of the number at each landing; that he "had taken the ties up (and paid for them)," and had refreshed his recollection by inquiring of the persons of whom he bought the ties at the several landings named, and from "some checks he had which he had issued for the ties and from his personal recollection he had given the figures above mentioned." There was no error in overruling defendant's motion to exclude the testimony tending to show the number of cross-ties at the several landings. Tennessee River Nav. Co. v. Walls, 204 Ala. App. 285, 92 So. 202, 205; Holmes v. Gayle, 1 Ala. 517; Hamilton v. Cranford Merc. Co., 201 Ala. 403, 78 So. 401.

The conversation with Mr. Whitaker, captain of one of defendant's boats on said line, was not for the purpose of showing that there was a special contract made with him for the transportation of the "ties," but as tending to fix notice on defendant of such shipment or the desire to ship, and to establish the reasonable cost of the transportation as affecting the damages sustained by failure of def...

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    ...Ledger v. Buchanan, supra, was to the same effect, and was based on the case of Robinson v. Greene, supra. The case of Tennessee River Nav. Co. v. Walls, supra, also in the Stallworth case, supra, is in reliance on the other two cited. It was held proper to allow a witness to testify that h......
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