Central of Georgia Ry. Co. v. Patterson

• Decision Date: 25 November 1919
• Docket Number: 5 Div. 298
• Citation: 17 Ala.App. 305,84 So. 471
• Parties: CENTRAL OF GEORGIA RY. CO. v. PATTERSON.
• Court: Alabama Court of Appeals

84 So. 471

17 Ala.App. 305

CENTRAL OF GEORGIA RY. CO. v. PATTERSON.

5 Div. 298

Court of Appeals of Alabama

November 25, 1919

Rehearing Denied Jan. 13, 1920

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

Action by E.M. Patterson against the Central of Georgia Railway Company for damages for the destruction of goods by fire after they had been transported and placed in warehouse. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

G.L Comer, of Eufaula, for appellant.

Frank M. de Graffenried, of Seale, for appellee.

MERRITT J.

This suit is against a common carrier for failure to deliver freight, delivered for transportation. This is the third appeal in this case.

Upon the first trial the judgment was for the plaintiff. On that appeal the special agreement of the parties covering the payment and removal of freight by plaintiff from defendant's warehouse at the point of destination was declared violative of provisions of the Interstate Commerce Commission act known as the "Elkins Act," 32 Stat 847, c. 718 (U.S.Comp.St. §§ 8597-8599), and of the "Interstate Commerce Commission Act," 24 Stat. 379 c. 104 (U.S.Comp.Stat. § 8563 et seq.). Central of Georgia Railway Co. v. Patterson, 6 Ala.App. 494, 498 60 So. 465. Defendant answered in addition to the general issue that under the terms of the bill of lading or contract, under and by which the goods were shipped, it was agreed between the shipper and defendant as follows:

"No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto, by causes beyond its control or by floods or by fire, and defendant avers that the property sued for was destroyed by fire and said fire was not attributable to the negligence of defendant, its servants, agents or employés." Plea No. 4.

And further that--

"Under the terms of the bill of lading or contract which was made and entered into between the shipper and the defendant, and under which the goods for the loss of which this suit is brought, were shipped, it was agreed between the shipper and defendant as follows, to wit, 'no carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto by cause beyond its control or loss by fire or flood,' and defendant avers that the property for the loss of which this suit is brought was safely transported by it to Ft. Mitchell, Ala., and that while so stored in said warehouse it was destroyed by fire, and that said fire was not attributable to the negligence of the defendant or to the negligence of its servants or employés." Plea No. 5.

Plaintiff's demurrer being sustained thereto on second appeal was held a full answer to the complaint, and that reversible error had been committed in such ruling. C. of Ga. Ry. v. Patterson, 12 Ala.App. 369, 68 So. 513. In short, that announcement of the general rule was that the federal or state statutes did not prevent a common carrier from remitting its liability as an insurer, by stipulating in the contract of affreightment against loss due to the destruction or damage of property in its custody by fire or flood, that was not attributable to its negligence. Such are the decisions of the Supreme Court. C. of Ga. Ry. Co. v. Burton, 165 Ala. 425, 51 So. 643; L. & N.R.R. Co. v. Oden, 80 Ala. 38; Barron v. M. & O.R.R. Co., 2 Ala.App. 555, 56 South. 862; York Mfg. Co. v. Central R.R., 3 Wall. 107, 18 L.Ed. 170.

The effect of the rule obtaining in this jurisdiction is that, when the shipper shows by this evidence that the goods were delivered to the carrier and not by it delivered to the consignee, a prima facie case is made against the carrier, and the onus is cast on the carrier to "go forward with the evidence" and to show that the damage or loss occurred from fire or flood excepted in the bill of lading, and, in addition, make out a prima facie case of diligence and freedom from fault or negligence on its part in permitting, contributing, or causing said damage to or destruction of the freight in question; Grey's Ex'r v. Mobile Trade Co., 55 Ala. 387, 28 Am.Rep. 723; L. & N.R.R. Co. v. Touart, 97 Ala. 514, 11 So. 756; L. & N.R.R. Co. v. Cowherd, 120 Ala. 51, 23 So. 793; Mouton v. L. & N.R.R. Co., 128 Ala. 537, 29 So. 602; Ala. Great Sou. R.R. Co. v. Quarles et al., 145 Ala. 436, 40 So. 120, 5 L.R.A. (N.S.) 867, 117 Am.St.Rep. 54, 8 Ann.Cas. 308; L. & N.R.R. Co. v. Oden, supra; A.G.S.R.R. Co. v. Elliott & Son, 150 Ala. 381, 43 So. 738, 9 L.R.A. (N.S.) 1264, 124 Am.St.Rep. 72; Barron v. M. & O.R.R. Co., supra; that it used due care and reasonable diligence to prevent the loss and damage. L. & N.R.R. Co. v. Gidley, 119 Ala. 523, 527, 24 So. 753; L. & N.R.R. Co. v. Touart, supra; L. & N.R.R. Co. v. Oden, supra.

The degree of diligence required by law of a common carrier is a matter over which it has no control and in which the public is interested. Southern Express Co. v. Owens, 146 Ala. 12, 41 So. 752, 8 L.R.A. (N.S.) 369, 119 Am.St.Rep. 41, 9 Ann.Cas. 1143; L. & N.R.R. Co. v. Oden, supra.

This issue of fact was tried on the third appeal. Since there is no conflict in the evidence as to the time, origin, and progress of the fire, as related to and causing the...