Alabama Great Southern R. Co. v. Quarles & Couturie

• Decision Date: 30 January 1906
• Citation: 40 So. 120,145 Ala. 436
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. QUARLES & COUTURIE.
• Court: Alabama Supreme Court

40 So. 120

145 Ala. 436

ALABAMA GREAT SOUTHERN R. CO. v. QUARLES & COUTURIE.

Supreme Court of Alabama

January 30, 1906

Appeal from Circuit Court, Greene County; S. H. Sprott, Judge.

"To be officially reported."

Action by Quarles & Couturie against the Alabama Great Southern Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

A. G. &amp E. D. Smith, for appellant.

De Graffenried and Evans, for appellees.

TYSON J.

Only one question is presented by the record in this case. It is this: Whether the defendant as a common carrier can avail itself of the defense of the act of God under the facts upon which the case was tried. The facts may be stated as follows The plaintiffs were cotton buyers, doing business in Eutaw Ala. On January 11, 1904, they bought at Moundville, Ala., six bales of cotton from one Findlay, which he delivered to defendant at that place on that day for shipment, and received from defendant's agent its bill of lading therefor, consigning the cotton to plaintiffs at Eutaw. The defendant was at that time and at the time of the trial a common carrier, operating between Moundville and Eutaw, stations on its line situated 20 miles apart. The cotton was never delivered by the defendant to the plaintiffs. On the morning of the 22d day of January, 1904, a cyclone of great violence passed through the town of Moundville, practically destroying it, killing and wounding many people, and destroying the cotton, but did not pass through Eutaw. It will be noted that the delay in shipping the cotton was about 11 days after it was received by the defendant, and this is the fact relied upon as precluding the defendant from asserting that the cyclone, which confessedly was an act of God, was the cause of the loss in order thereby to relieve itself of all liability for its failure to safely deliver the cotton at Eutaw.

As a general rule the undertaking of a common carrier to transport goods to a particular destination includes the obligation of a safe delivery of them, within a reasonable time, to the consignee. And the contract of carriage is one of insurance against every loss or damage, except such as may be occasioned by the act of God or the public enemy or the fault of the owner of the goods or his agent. And in this state the shipper makes a prima facie case against the carrier when he shows the goods were not delivered, and, in order for the carrier to relieve itself of the absolute liability for their loss as an insurer, it must bring itself within the exception relied upon as an excuse for its failure to deliver. Grey's Ex'r v. Mobile Trade Co., 55 Ala. 387, and cases there cited. Has the defendant done this, when it appears that it was in default in not carrying out its contract by not shipping the cotton within a reasonable time, as it obligated itself to do, and which if it had done the cotton would not have been destroyed by the cyclone? In other words, will it be allowed to invoke the act of God which destroyed the cotton as an excuse for the failure to deliver it, when, if it had discharged its duty, the cotton would not have been destroyed?

This precise question has arisen and been adjudicated in other states. In some of them the question has been answered in the affirmative, and in others in the negative. The appellate courts of New York and Pennsylvania were the first to lead off on this question. The New York court held the carrier liable, and the Pennsylvania court held that it was not. When the question arose in other jurisdictions, some of the courts followed the lead of the New York court, and others that of the Pennsylvania court, so that the decisions of these two states may be regarded as the leading ones, pro and con, upon the question here presented. The cases in New York are Michaels v. N.Y. C. R. R. Co., 30 N.Y. 564, 86 Am. Dec 415, and Read v. Spaulding, 30 N.Y. 630, 86 Am. Dec. 426. The Pennsylvania case is Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695. The New York cases held, and we think correctly, that, where a carrier is intrusted with goods for transportation and they are lost, the law holds him responsible for the loss unless exempted by showing that the loss was caused by the act of God or the public enemy. And to avail himself of such exemption he must show that he was free from fault at the time. In other words, when there is an unreasonable delay on the part of the carrier in forwarding the goods and they are destroyed by the act of God during this delay, that he is not excused for the reason that it was by his fault that they were exposed to the peril. Says the court in Read v. Spaulding, quoting the language of Gould, J., in Williams v. Grant, 1 Conn. 487, 7 Am. Dec. 235: "It is a condition precedent to the exoneration of the carriers that they should have been in no default, or, in other words, that the goods of the bailee should not have been exposed to the peril or accident, by their own misconduct, neglect, or ignorance. For, though the immediate or proximate cause of the loss, in any given instance, may have been what is termed the act of God, or inevitable accident, yet, if the carrier unnecessarily exposes the property to such accident by any culpable act or omission of his own, he is not excused." In line with this holding may be found the courts of Kentucky, Missouri, Illinois, and Tennessee. Hernsheim Bros. & Co. v. Newport News & M. Val. Co., 35 S.W. 1115, 18 Ky. Law Rep. 227; Armentrout v. St. Louis, K. C. & N. Ry. Co., 1 Mo. App. 158; Pruitt v. Hannibal & St. J. R. Co., 62 Mo. 527; Wald v. Pittsburg, C. C. & St. L. R. Co., 162 Ill. 545, 44 N.E. 888, 35 L. R. A. 356, 53 Am. St. Rep. 332; Southern Exp. Co. v....