Alabama Great Southern R. Co. v. Conner

• Decision Date: 05 October 1933
• Docket Number: 6 Div. 330.
• Citation: 227 Ala. 562,151 So. 355
• Parties: ALABAMA GREAT SOUTHERN R. CO. et al. v. CONNER.
• Court: Alabama Supreme Court

151 So. 355

227 Ala. 562

ALABAMA GREAT SOUTHERN R. CO. et al. v. CONNER.

6 Div. 330.

Supreme Court of Alabama

October 5, 1933

Rehearing Denied Dec. 1, 1933.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for breach of contract by Mrs. J. S. Conner against the Alabama Great Southern Railroad Company and Central of Georgia Railway Company. From a judgment for plaintiff defendants appeal.

Reversed and remanded.

Stokely Scrivner, Dominick & Smith, and W. H. Sadler, Jr., all of Birmingham, for appellants.

Horace C. Wilkinson, of Birmingham, for appellee.

GARDNER Justice.

Count G. upon which the cause was tried, differing from the complaint considered on former appeal (Conner v. Central of Georgia R. Co., 221 Ala. 358, 128 So. 789), seeks recovery for a breach of a special contract in effect guaranteeing to plaintiff that connection would be made between the trains at Birmingham on her interstate journey from Alexander City, Ala., to Amite, La. The validity of this contract is challenged as violative of the federal statute declaring it unlawful for any common carrier "to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality or any particular description of traffic, in any respect whatsoever." 49 USCA § 3, par. 1.

It appears without dispute that plaintiff paid nothing other than what the general public would have paid to secure defendant's usual transportation, duties, and responsibilities which they owed as common carrier of passengers to passengers traveling over their line. As to the general public, defendant, as a common carrier of passengers, in relation to the matter of making the connection at Birmingham, owed the duty of due care, and could be made to respond in damages for a failure in that regard only upon the theory of negligence (Southern Rwy. Co. v. Miller, 129 Ky. 98, 110 S.W. 351; Chicago & Alton R. R. Co. v. Kirby, 225 U.S. 155, 32 S.Ct. 648, 56 L.Ed. 1033, Ann. Cas. 1914A, 501; 6 Cyc. 587), and varying excuses for unreasonable delays have been accepted by the courts as presenting a proper defense based thereon (2 Hutchinson on Carriers [3d Ed.] §§ 654-659).

The contract on which plaintiff relies brushes aside any excuse for delay, and calls for a guaranteed connection, though for like service and compensation the general public have no such guaranty, but for any compensation for unreasonable delay must look to the rule of due care and the consequent defenses available thereunder.

The question for determination is whether or not plaintiff's contract constitutes "any undue or unreasonable preference or advantage" within the meaning of the above-noted federal statute. If so, it is void and unenforceable. Authoritative answer to this inquiry is to be found in the federal Supreme Court decisions, binding and conclusive as to the proper interpretation of this statute.

In principle we construe the decision of the United States Supreme Court in Chicago & Alton Railroad Co. v. Kirby, 225 U.S. 155, 32 S.Ct. 648, 650, 56 L.Ed. 1033, Ann. Cas. 1914A, 501, as conclusive here adversely to plaintiff's cause. True, the Kirby Case dealt with the shipment of freight, but the statute concerns passengers as well as freight traffic (Ligon v. St. Louis & San Francisco R. Co., 184 Mo.App. 187, 168 S.W. 647), and its underlying principle is as applicable to the one as the other. The shipment in the Kirby Case was a carload of high-grade horses for sale in New York City at a given time, and the defendant railroad had by special contract agreed with the plaintiff to expedite the shipment and guarantee a connection with what was known as the "Horse Special" over another road, and thus reach New York at the appointed time. The defendant missed the connection, and suit for breach of this special contract followed. Relief was denied plaintiff upon the theory such special agreement was an undue or unreasonable preference or advantage and within the prohibition of the above-noted statute. The following extracts from the opinion are pertinent here:

"The implied agreement of a common carrier is to carry safely and deliver at destination within a reasonable time. It is otherwise when the action is for a breach of a contract to carry within a particular time, or to make a particular connection, or to carry by a particular train. The railroad company, by its contract, became liable for the consequence of a failure to transport according to its terms. Evidence of diligence would not excuse. If the action had been for the common-law carrier liability, evidence that there had been no unreasonable delay would be an answer. But the company, by entering into an agreement for expediting the shipment, came under a liability different and more burdensome than would exist to a shipper who made no such special contract.

"For such a special service and higher responsibiliy it might clearly exact a higher rate. But to do so it must make and publish a rate open to all. This was not done.

"The shipper, it is also plain, was contracting for an advantage which was not extended to all others, both in the undertaking to carry so as to give him a particular expedited service, and a remedy for delay not due to negligence.

"An advantage accorded by special agreement which affects the value of the service to the shipper and its costs to the carrier should be published in the tariffs; and for a breach of such a contract, relief will be denied, because its allowance without such publication is a violation of the act. It is also illegal because it is an undue advantage, in that it is not one open

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