Alabama G.S.R. Co. v. Mt. Vernon Co.

• Citation: 84 Ala. 173,4 So. 356
• Parties: ALABAMA G. S. R. CO. v. MOUNT VERNON CO.
• Decision Date: 23 May 1888
• Court: Supreme Court of Alabama

4 So. 356

84 Ala. 173

ALABAMA G. S. R. CO. v. MOUNT VERNON CO.

Supreme Court of Alabama

May 23, 1888

Appeal from circuit court, Etowah county; JOHN B. TALLY, Judge.

This was an action brought by the Mount Vernon Company to recover from the Alabama Great Southern Railroad Company a certain amount alleged in the complaint for the destruction of cotton by fire while in the hands of the defendant, and alleged to be in its hands as a common carrier. Judgment for plaintiff and defendant appeals. The second charge, referred to in the opinion, is as follows: "(2) The court charges the jury that if they believe from the evidence that the East Alabama Railway Company placed the car containing the cotton on the side track of the Alabama Great Southern Railroad Company at the usual place of putting cars loaded with freight to be transported by the Alabama Great Southern Railroad Company that the local agent of the A. G. S. R. R. Co. checked said car, and reported the same to the car accountant of the defendant as a loaded car received from the East Alabama Railway Company; and that by this act the car was placed under the control of the defendant, and said local agent did this, and saw the car loaded with cotton before it was burned, then, in such case, this was an actual delivery of the cotton to the defendant, whether there was any custom between the defendant and the East Alabama Railway Company to receive cotton in any other manner or not."

Samuel F. Rice and F. A. Dobbs, for appellant.

W. H. Denson. for appellee.

CLOPTON J.

When an instrument is executed in duplicate, proof of the loss or destruction, or a satisfactory excuse for the non-production, of both parts, is essential to let in parol evidence of the contents. 1 Greenl. Ev § 558. The bill of lading under which the cotton in controversy was shipped was executed in duplicate. One part was attached to the draft drawn by the shippers on the plaintiff for the purchase money of the cotton, and was forwarded with it; the other was delivered to the attorney of the plaintiff about the time this suit was commenced. The draft having been paid, the presumption is that the bill of lading attached to it is in the possession, or under the control of, the plaintiff. While the proof was sufficient to show that the duplicate in the possession of the attorney had been lost or mislaid, there was no effort to account for the absence of the other part forwarded with the draft. The fact that the plaintiff resides beyond the jurisdiction of the court is no excuse for its non-production, when having custody thereof. In the absence of the requisite preliminary proof, secondary evidence of the contents should not have been admitted.

Appellee sues appellant to recover damages for the failure to deliver 30 bales of cotton, which the complaint avers were received by the defendant as a common carrier to be delivered to plaintiff at Mount Vernon Switch, Md. In legal effect, the complaint alleges a contract between plaintiff and defendant to transport and deliver cotton to plaintiff at the designated point of destination. The undisputed evidence shows that the cotton was received by the East Alabama Railway Company under a contract of shipment from Gadsden, Ala., to Mount Vernon Switch, the delivery of which at the point of destination necessitated transportation over connecting lines, the road of the defendant being the next intermediate line, each line receiving its proportion of the freight charged for the transportation of the cotton. On the evidence, the East Alabama Railway Company, having received the cotton to be delivered at a place beyond its own line of transportation, without expressly limiting its liability, is regarded as having contracted for safe delivery at the point of destination, and as having made arrangements with other carriers for this purpose. Railroad Co. v. Copeland, 63 Ala. 219. Such being the case, the obligation of the defendant was to safely transport the cotton to the terminus of its road, and deliver it to the next connecting line. There was no contract between the plaintiff and defendant to deliver the cotton at Mount Vernon Switch. The variance between the contract averred in the complaint and the contract as proved disentitles the plaintiff to recover on the complaint as framed. Railway Co. v. Culver, 75 Ala. 587.

Notwithstanding the judgment must be reversed for the reasons above stated, a decision of other questions presented by the record will probably serve to prevent the unnecessary embarrassment or protraction of this litigation. The cotton was carried from Gadsden to Attalla, December 22, 1884, where the car containing it was switched off on a side track connected with the road of defendant, and was destroyed by fire the third day thereafter. There was evidence tending to show that it had been the custom of the East Alabama Railway Company to transport loaded cars from Gadsden to Attalla and switch them off on defendant's side track, for transportation over defendant's road, before any bills of lading were issued, and shipping directions given, without objection on the part...