Atlantic Coast Line R. Co. v. Rice

• Decision Date: 21 April 1910
• Citation: 52 So. 918,169 Ala. 265
• Parties: ATLANTIC COAST LINE R. CO. v. RICE.
• Court: Alabama Supreme Court

52 So. 918

169 Ala. 265

ATLANTIC COAST LINE R. CO. v. RICE.

Supreme Court of Alabama

April 21, 1910

Rehearing Denied June 30, 1910.

Appeal from City Court of Montgomery; W. H. Thomas, Judge.

Action by Julian M. Rice against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The complaint in substance alleged that the plaintiff bought a ticket at Kissimmee, Fla., to Montgomery, Ala., paying therefor $1.75; that he presented the ticket to the agent at Kissimmee, together with the crate containing two dogs, and that the agent delivered him a check for said crate, charging him the excess therefor, from Kissimmee to Montgomery; that when he delivered the crate to defendant's agent it contained two dogs; and that when he presented his check at Montgomery, and the crate was delivered to him, one of the dogs had escaped. Plea 3 was as follows: "For further answer defendant says that the plaintiff presented for transportation two dogs in a box which was locked, and to which plaintiff had and retained the key, and that defendant accepted said box containing said dogs in the condition it was at the time of its delivery by plaintiff, to wit, for carriage, and that while the said box was in the same condition as when presented to and accepted by defendant, the dog, for a failure to deliver which this action is brought escaped from said box and from the car of this defendant, in which it was being transported, without fault on the part of this defendant, its agents or servants. This defendant therefore pleads that the escape and loss of the dog was wholly due to the fault of the plaintiff, and not to any fault of this defendant, its agents or servants."

A. H Arrington and John R. Tyson, for appellant.

Fred S Ball and Frank Stollenwerck, for appellee.

McCLELLAN J.

The action is for breach of a contract between appellee (plaintiff) and the appellant, a common carrier, to transport and deliver a dog from a point in the state of Florida to appellee at Montgomery, Ala.

Plea 3 which will be set out in the report of the appeal, avers, in substance, that the dog escaped, in transit, from the locked crate, appellee having the key, in which it was when delivered to the carrier by appellee, and from the appellant's car, without fault of the carrier; and that the crate or box was delivered to appellee at Montgomery in the same condition as when received by the carrier at the initial point in Florida; and concludes that the loss of the dog was wholly due to the fault of the appellee. It is necessarily inferable from the averments of the plea that the escape of the dog from the crate or box was effected through an opening therein.

Whatever may have been, or may now be, the opinion elsewhere prevailing, it is settled with us that a carrier, undertaking to transport and deliver live animals, is subject to the same responsibilties, with respect thereto, as in ordinary cases of goods received for transportation by a common carrier, except it is not accountable for, and does not assume the risk of, loss or damage to live animals "arising from their nature and propensities, and which could not be prevented by foresight, vigilance, and care." Central Railroad v. Smitha & Chastain, 85 Ala. 47, 4 So. 708; South & N. R. R. Co. v. Henlein, 52 Ala. 606, 23 Am. Rep. 578; Western R. Co. v. Harwell, 91 Ala. 340, 8 So. 649. The exceptions, aside from those legally possible of creation by special contract, to the exacting common-law liability of a common carrier in the carriage of goods, are the acts of God and of the public enemy, where no negligence, of omission or commission, concurred therewith to produce the damnifying result. Authorities supra; Steele v. Townsend, 37 Ala. 247, 79 Am. Dec. 49; McCarthy v. L. & N. R. R. Co., 102 Ala. 193, 14 So. 370, 48 Am. St. Rep. 29; Green v. L. & N. R. R. Co., 50 So. 937. In short, in the absence of contract limiting liability, the rule here is that a common carrier, in cases of loss or damage to live animals received for shipment, is an insurer against such loss or damages as do not arise from the act of God, the public enemy, and those arising from the nature and propensities of the live animals so received for transportation, and against which due care could not provide. And to avail in exoneration of legally unmodified liability of the common carrier for the loss or damage of a consignment received by it, the burden is on the carrier to trace the loss or damage to negligence of the shipper, or to one or more of the exceptions, with which its negligence did not concur. Authorities supra.

Counsel for both litigants construe plea 3 as asserting, when reduced to legal formula, that where the shipper of a live animal crates or boxes it, the shipper, and not the common carrier, assumes the risk of escape of the animal therefrom if such escape results from the nature and propensities of the animal. To state the matter otherwise: That where such live animal is crated or boxed by the shipper and escapes therefrom, after reception by the carrier, as the result of natural propensity, the shipper, and not the carrier, is negligent.

It is not contended that the carrier was ignorant of the character of the shipment. The carrier affirms, by its plea as construed by counsel, and the shipper (here) denies, by his demurrer thereto, the correctness of the proposition. The gist of the argument in negation of the soundness of the proposition is that the carrier, by receiving the animal so crated or boxed, assumes the risk of the sufficiency of the inclosure, else it should refuse to receive the subject of the shipment if ordinary observation would disclose its insufficiency. On the other hand, the gist of the argument in affirmation of the proposition is that by offering a self-contrived inclosure for the live animal the shipper relieves the carrier of any duty to overlook the inclosure with a view to restraining the natural propensity of the animal to leave confinement in the crate or box. Without considering or treating the plea as asserting, well or ill, any other matter of defense than that which counsel for both parties ascribe to it, we will decide only the question raised below and argued here.

Subject to the exception, among others not now necessary to enumerate, that it may properly refuse to accept for transportation goods "tendered in an unfit condition" therefor, a common carrier is duty bound to transport all goods that...