Alabama Great Southern R. Co. v. Demoville

• Decision Date: 20 April 1910
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. DEMOVILLE.
• Court: Alabama Supreme Court

52 So. 406

167 Ala. 292

ALABAMA GREAT SOUTHERN R. CO. v. DEMOVILLE.

Supreme Court of Alabama

April 20, 1910

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

Action by Albartus Demoville against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

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

Harwood & McKinley, for appellee.

MAYFIELD J.

Appellee sued appellant to recover damages for the destruction of a lot of cotton seed. The seed were destroyed by fire which was communicated to the building in which they were stored from burning cars of cotton left by defendant on its side tracks near the building. The building in which the seed were stored was located on the defendant's right of way, and was built by the Eagle Cotton Seed Oil Company, another corporation, under a written agreement between it and the defendant. This agreement, license, permit, or lease (whatever its name) contained a clause, or clauses, by which the Eagle Company agreed to save the defendant railroad company harmless from all damages which might arise from the destruction or injury of such building or its contents. The negligence relied upon for a recovery was in allowing the cotton in these cars to become ignited, which fire was communicated to, and destroyed, plaintiff's cotton seed. No damages were sought to be recovered for the destruction of the seedhouse in which plaintiff's seed were stored. It is agreed, and conceded, that the building belonged to the Eagle Company, and the seed therein to the plaintiff.

Plaintiff had for some seasons prior to the fire represented the Eagle Company as its purchasing agent at Boligee, and, as such agent, purchased seed for such company, storing same in this seedhouse, for shipment out over the defendant's road. However, during the season in which the fire occurred, he was not so active for the Eagle Company, but was purchasing seed on his own account; and, under an arrangement with the Eagle Company, he stored his seed in the seedhouse of the company in consideration of which he gave the Eagle Company the refusal of purchasing the seed from him, and the seed purchased by plaintiff were so stored in this seedhouse, and some were shipped out by the plaintiff over defendant's road. Plaintiff was not shown to have had any knowledge or notice of the agreement or contract between the defendant railroad company and the Eagle Company as to the erection and maintenance of the seedhouse upon the right of way of the former further than such knowledge or notice might be implied by the fact that the seedhouse was upon the right of way of the railroad company.

The two principal questions of difference involved in the trial and on this appeal are: (1) Was any actionable negligence alleged or proven? (2) If so, was the agreement or contract between the Eagle Company and the defendant railroad company binding upon plaintiff, so as to preclude a recovery in this suit?

Many of the questions involved depend upon one or both of these two. These questions (one or both) were raised by demurrer to the complaint, by several special pleas and the demurrers thereto, and by the rulings upon the evidence, and by instructions of the court given and refused. The demurrers to the complaint were properly overruled. Each of the counts by comparison appears to be a duplicate of counts heretofore held good by this court in similar actions. Certainly, in legal effect, they are substantial duplicates of approved charges. Marbury's Case, 125 Ala. 237, 28 So. 438, 50 L. R. A. 620; Clark's Case, 136 Ala. 450, 34 So. 917; Taylor's Case, 129 Ala. 238, 29 So. 673; Wilson's Case, 138 Ala. 510, 35 So. 561. It was not necessary under the averments of any one of the counts to allege wanton negligence or willful injury. Simple negligence was sufficient. Cases of injury to personalty upon the right of way of a railroad company are different from cases of personal injury to mere licensees. This is certainly true as to the negligent destruction of property by fire under circumstances such as are alleged in this complaint. Elliott on Railroads, § 1235 et seq., and Wilson's Case, supra.

To the complaint the defendant filed pleas of the general issue and several special pleas.

Plea 2 set up the special contract before alluded to, between the Eagle Company and the defendant company, as to the erection and maintenance of the seedhouse, containing an indemnity against loss or destruction of such house or its contents by fire or otherwise, and alleged that said contract was transferred or assigned by the Eagle Company to the plaintiff, and that plaintiff's possession of such house and the right of storage therein was by virtue of such contract or license, and that the indemnity clause of such contract was therefore binding upon plaintiff.

Pleas 3 and 4 were the same as plea 2, except that they omitted the allegation that the contract of indemnity was transferred or assigned to plaintiff, and that the cotton seed were stored thereunder; but averred that plaintiff used such seedhouse as a mere licensee, and denied any wanton or intentional wrong.

Plea A sets out the contract between the Eagle Cotton Oil Company and the defendant at length as an exhibit. It avers that the seedhouse was erected and maintained under and by virtue of said contract, and that the cotton oil company had used it continuously up to September 28, 1907; that the plaintiff, for several years prior to the fire, had stored said company's seed in said house, as the agent of said company; that on September 28, 1907, without the knowledge or consent of the defendant and its agents, the Eagle Cotton Seed Oil Company gave the plaintiff the right to use the said seedhouse for the storage of his own seed, and that plaintiff, from then to the time of the fire, did so use the said seedhouse without notice to the defendant, and without the knowledge or assent of the defendant or its agents; that the said contract between the Eagle Cotton Seed Oil Company and the defendant, except as affected by this arrangement between the plaintiff and the cotton oil company, remained in full force and effect. This plea also denied subsequent negligence.

The court sustained demurrers to all the special pleas except plea 2, to which a demurrer was overruled; and the trial was had on the general issue and upon special plea 2. The trial court correctly ruled upon these special pleas 3, 4, and A.

The law upon the subject is, we think, correctly stated in 3 Elliott on Railroads, §§ 1235, 1236, as follows:

"Sec. 1235. Property on Right of Way.--It frequently happens that property of third persons located on the railway right of way is destroyed by fire communicated by locomotives of the company using the right of way. In cases of this kind the railway company is sometimes liable and sometimes not. The test of liability is generally whether or not the property situated on the right of way was rightfully there. If the owner of the property is a mere trespasser and placed his property on the right of way without the consent of the railway company, he cannot recover for its negligent destruction by fire. Thus, where a person intruded upon the right of way of a railway company and without the consent of the company erected a building which was afterwards destroyed by fire, it was held that there could be no recovery. But, where a company expressly licenses third persons to erect buildings within the limits of its right of way, it will be liable if it negligently destroys such buildings by fire, unless it has contracted with the persons erecting such building that it shall not be liable if the buildings are destroyed by fire. And where property is placed on the right of way of a railway company by agreement, either express or implied, and such property is negligently destroyed by fire, the company will be liable. The complaint in an action to recover damages for property burned on the right of way must show that the property was rightfully there.

"Sec. 1236. Contracts Limiting Liability.--As a general rule contracts which seek to confer upon a person immunity from the consequences of his negligent acts to be performed in the future are held void as being contrary to public policy, but there is some conflict among the authorities, and decisions may be found which support a contrary doctrine. Contracts by which railway companies attempt to excuse themselves from liability on account of negligence in the carriage of freight are almost, if not quite, universally held void. And, in the case of the carriage of gratuitous passengers, a provision in the pass on which the person rides that there shall be no liability on account of negligence of the company has been held void, although there are cases maintaining a different rule. So far as we have been able to discover, there are few cases in the books involving the validity of a contract exempting a railway from liability for negligently firing and burning property. We think that ordinarily a contract exempting the company from liability for negligently burning property not on the right of way or premises of the company would be held void. But where property is placed on a railway right of way by virtue of a contract in which the owner releases the railroad company from any and all liability on account of fire, and the property is afterwards destroyed by fire negligently set by the railway company, the contract is not void, and the company cannot be held liable. In such a case, as placing the property upon the right of way is an inconvenience to the company and increases the danger of fire, and as the contract in no way relieves the company from any public duty, it is not against public policy, and is therefore

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