Alabama Great Southern R. Co. v. J.A. Elliott & Son

• Decision Date: 20 April 1907
• Citation: 43 So. 738,150 Ala. 381
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. J. A. ELLIOTT & SON.
• Court: Alabama Supreme Court

43 So. 738

150 Ala. 381

ALABAMA GREAT SOUTHERN R. CO. v. J. A. ELLIOTT & SON.

Supreme Court of Alabama

April 20, 1907

Appeal from Circuit Court, Hale County; B. M. Miller, Judge.

Action by J. A. Elliott & Son against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

C. E Waller and De Graffenreid & Evans, for appellant.

Thomas E. Knight, for appellee.

SIMPSON J.

This was an action for damages resulting from the failure to deliver part of a certain lot of flour and delivering another portion of the same in a damaged condition. The assignments of error relate entirely to the ruling of the court on certain demurrers to pleas, and the facts, as set out in the pleading, are that the flour was delivered to the Louisville & Nashville Railroad Company at Evansville, Ind., to be carried to the plaintiff at Moundville, Ala., a place of about 150 inhabitants, on the line of the defendant company. Said flour was delivered to the defendant company, at Birmingham, Ala., on the 17th day of January, 1904, and by it shipped out from Birmingham on the 21st day of January. It reached Moundville, in the same condition as received, on said 21st day of January, at 1 o'clock p. m., and notice was sent to the plaintiff of its arrival; but on the morning of the 22d of January, at 1 o'clock, a violent cyclone swept over the country and caused the damage complained of.

The only question presented by the assignments and briefs of counsel, is whether or not, admitting the delay at Birmingham, the defendant is liable on account of the damage done by the act of God, to wit, the cyclone, at Moundville 12 hours after the goods reached said destination. In a recent case before this court, where the carrier to which the goods were delivered for shipment retained the same in its possession, without shipment, for a period of 11 days, and on the eleventh day said goods were practically destroyed by a cyclone, this court, recognizing the fact that there is a serious conflict in the decisions of other states, placed itself in the column of those holding the carrier liable. Ala. Great So. R. Co. v. Quarles & Couturie (Ala.) 40 So. 120, 5 L. R. A. (N. S.) 867. It will be noticed that the facts in this case are not identical with those in the case just cited, in that, in that case, the cyclone occurred while the carrier was in default, to wit, during the delay so that the delay and the cyclone were concurring causes. This court said: "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, he is not excused, for the reason that it was by his fault that they were exposed to the peril. Page 121. column 2, of 40 South (5 L. R. A. [N. S.] 867). Again, in commenting on a Massachusetts case holding otherwise, though not considered strictly analogous, we said: "It cannot be held to have approved the proposition that a defendant, when liable as an insurer, being at fault at the time of the act of God caused the loss, could invoke that act as a defense." Page 122 column 1, of 40 South. (5 L. R. A. [N. S.] 867). In the case of L. & N. R. R. Co. v. Gidley, 119 Ala. 523, 24 So. 753, also, the leather was destroyed by fire while it was being unlawfully detained in the warehouse of defendant. Also, in the leading case on the side of liability, the goods were overtaken by a flood while being improperly detained at Albany. Michaels v. N.Y. C. R. R., 30 N.Y. 564, 86 Am. Dec. 415. The recent case of Bibb Broom Corn Co. v. Atchison, T. & S. F. R. Co., 69 L. R. A. 509, 94 Minn. 269, 102 N.W. 709, 110 Am. St. Rep. 361, holding in line with our decision, also emphasizes the fact, stating: "The rule that permits a carrier to excuse his negligence by an act of God, overtaking him while thus in fault, seems to us unsound." Page 512, column 2, of 69 L. R. A., page 275 of 94 Minn., page 711 of 102 N.W. (110 Am. St. Rep. 361). Also: "If a loss occurs while his wrongful act is in operation...