Alabama G.S.R. Co. v. Grabfelder

• Decision Date: 11 January 1888
• Citation: 3 So. 432,83 Ala. 200
• Parties: ALABAMA G. S. R. CO. v. GRABFELDER ET AL.
• Court: Alabama Supreme Court

3 So. 432

83 Ala. 200

ALABAMA G. S. R. CO. v. GRABFELDER ET AL.

Supreme Court of Alabama

January 11, 1888

Appeal from circuit court, Tuscaloosa county; S. H. SPROTT, Judge.

This was an action brought by S. Grabfelder & Co. against the Alabama Great Southern Railroad Company. Plaintiffs recovered judgment, and defendant appeals.

Wood & Wood, for appellant.

H B. Foster, for appellees.

SOMERVILLE J.

The action in this case is based upon the failure of the defendant to deliver to the plaintiffs certain goods received by defendant as a common carrier, to be delivered at Tuscaloosa, Alabama, for a reward. The complaint is framed in substantial conformity to form No. 13, (Code 1876, p. 703,) for actions against common carriers. The evidence shows that some of the goods were delivered in a damaged condition, and that others were not delivered at all, but there is no evidence showing that those not delivered were of any pecuniary value. The evidence further tends to prove that when the goods were destroyed or damaged by fire, they were in the custody of the defendant, not as a common carrier, but as a warehouseman or bailee.

We have held that, under a complaint in the form prescribed for the failure of a carrier to deliver goods, (Code 1876, No. 13, p 703,) a recovery cannot be had on proof that the goods were delivered in a damaged condition. Railroad Co. v. Wilson, 78 Ala. 587. So it has also been held by this court, in a recent decision, that, in an action like the present, for the failure to deliver goods, brought against a common carrier, no recovery can be had when the evidence shows that, at the time of the loss, the defendant's liability as a common carrier had terminated, and the goods were in his custody as a warehouseman. Kennedy v. Railroad Co., 74 Ala. 430. Under this state of the pleadings and evidence, a clear case of variance is presented, which would be fatal to the plaintiff's recovery. For the foregoing reasons, the court should have given the first instruction to the jury requested by the defendant, which was to find a verdict for the defendant, if they believed the evidence.

Many of the charges given at the request of the plaintiffs had reference to the plaintiffs' right of recovery based on the defendant's duties and liability as a warehouseman. Those charges were erroneous, because there was no count in the complaint covering this aspect of the case. When the liability of a...