Central of Georgia Ry. Co. v. Gillis Mule Co.

• Decision Date: 13 January 1925
• Docket Number: 4 Div. 987
• Parties: CENTRAL OF GEORGIA RY. CO. v. GILLIS MULE CO.
• Court: Alabama Court of Appeals

103 So. 906

20 Ala.App. 535

CENTRAL OF GEORGIA RY. CO. v. GILLIS MULE CO.

4 Div. 987

Court of Appeals of Alabama

January 13, 1925

Rehearing Denied March 24, 1925

Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.

Action by the Gillis Mule Company against the Central of Georgia Railway Company for damages for injury to a mule. Judgment for plaintiff, and defendant appeals. Affirmed.

Certiorari denied by Supreme Court in Ex parte Central of Georgia Ry Co., 103 So. 909.

G.L Comer & Son, of Eufaula, for appellant.

G.W Winn, of Clayton, and Sollie & Sollie, of Ozark, for appellee.

FOSTER, J.

This case was tried on the second count of the complaint, which is substantially in the form prescribed by the Code 1907, No 15, p. 1197, for suit against a common carrier on a bill of lading, with some additional averments made necessary by the suit having been brought against a connecting carrier. The pleas were the general issue and special plea numbered 2, as follows:

"The defendant says that at the time said mule, for the injury to which damages are claimed in this case, was received for shipment, it was stipulated and agreed and contracted as follows:

" 'Unless caused by the negligence of the carrier, or its employees, no carrier shall be liable for or on account of any injury or death, sustained by said live stock, occasioned by any of the following causes: Overloading, crowding one upon another, escaping from cars, pens, or vessels; kicking or goring or otherwise injuring themselves, or each other, suffocation, fright, or fire, caused by the shipper or the shippers' agent, heat or cold, changes in weather or delay caused by stress of weather or damage to or obstruction of track, or other causes beyond the carrier's control.' And defendant avers that the injury for which this suit was brought was caused, or brought about, by causes beyond the carrier's control, and not from any negligence on the part of this defendant."

There was verdict and judgment for the plaintiff for $200. The defendant filed its motion for a new trial, which was overruled by the court, and exception duly reserved. From the ruling of the court on the motion and the judgment on the verdict, the defendant prosecutes this appeal.

The evidence without conflict showed that the plaintiff on January 1, 1923, delivered to the Louisville & Nashville Railroad Company, a common carrier of goods, at Columbia, Tenn., a carload of mules to be transported to Clayton, Ala., and there to be delivered to plaintiff for a reward. The mule in suit was one of the 22 mules in the car and was in good condition when delivered to said carrier. Said company issued to plaintiff a through bill of lading for said carload of mules to Clayton, Ala. The initial carrier's lines extended from Columbia, Tenn., to Montgomery, Ala., where the mules were unloaded, fed and watered, and delivered to the Central of Georgia Railway Company for shipment and delivery to the plaintiff at Clayton, Ala. The mules were delivered by the initial carrier to the connecting and delivering carrier (the appellant) at 6:45 a.m. January 4, 1923, and were delivered to the plaintiff at Clayton, Ala., between 9 and 10 o'clock p.m. of the same day. Early in the morning of January 5, 1923, the mule the subject of this suit was found to be injured in its shoulder, the injury consisting of a wound round in appearance and more than seven inches deep. Evidence for the plaintiff tended to show that the injury was probably inflicted about 24 hours before the discovery of the wound, that a nail which looked to be about a 20-penny nail was found in the inside wall of the car in which the mule was transported, that the mule before its injury was worth from $225 to $250, and after the injury was practically worthless.

Evidence for the defendant tended to show that the carload of mules was properly and carefully transported over its line from Montgomery, Ala., to Clayton, Ala.; that no injury occurred to any of the mules while in its custody, that there was no nail protruding from the inside wall of the car, that the wound appeared to have been caused by a bullet, and that the mule was injured to the extent only of $75.

The defendant excepted to that portion of the oral charge of the court stating, "in substance, that the burden shifts to the defendant to acquit itself of negligence." And the court then gave the following instruction:

"I said this: That if the jury become reasonably satisfied from all the evidence that the mule was injured between Columbia, Tenn., and Clayton, Ala., as the result of negligence, then the burden shifts to the defendant to acquit itself of negligence; that is, of course, provided the mule was delivered in proper condition at Columbia, Tenn."

And the defendant excepted to the said oral instruction.

The defendant being the delivering carrier was liable only for injuries to the mule occurring on its own line or while in its possession. Walter v. A.G.S.R.R. Co., 142 Ala. 475, 39 So. 87; Montgomery & West Point R.R. Co. v. Moore, 51 Ala. 394; Mobile & Girard R.R. Co. v. Copeland, 63 Ala. 219, 35 Am.Rep. 13.

In an action against the delivering carrier for loss or damage to goods, the burden is upon the plaintiff to show the receipt of the goods by the terminal carrier. Where the goods are delivered in good condition to the initial carrier, there is a presumption that they were delivered to the connecting carrier in the same condition as when delivered to the initial carrier, and when such goods are delivered by the terminal carrier to the consignee in a damaged condition, the burden is upon the terminal carrier to show to the reasonable satisfaction of the jury that the damage or injury did not occur while on its lines or while in its possession or control as a common carrier. Montgomery & Eufaula Railway Co. v. Culver, 75 Ala. 587, 51 Am.Rep. 483; Walter v. A.G.S.R.R. Co., supra; Central of Georgia Railway Co. v. Goodwater, 14 Ala.App. 258, 69 So. 1015.

The trial court did not err in giving the oral instructions to which exception was reserved.

Defendant's special plea No. 2 seeks to avoid liability by alleging that the injury was brought about by causes beyond its control and not from negligence of the defendant. The plea does not aver what the causes were. The plea is hereinabove set out, and the quoted provisions in the bill of lading exempt the defendant from liability for...