Central of Georgia Ry. Co. v. Henderson

• Decision Date: 02 July 1907
• Citation: 152 Ala. 203,44 So. 542
• Parties: CENTRAL OF GEORGIA RY. CO. v. HENDERSON.
• Court: Alabama Supreme Court

44 So. 542

152 Ala. 203

CENTRAL OF GEORGIA RY. CO. v. HENDERSON.

Supreme Court of Alabama

July 2, 1907

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Action by J. M. Henderson against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Tyson C.J., and Haralson and Denson, JJ., dissenting in part.

This cause was tried upon the following counts: Count 1 "Plaintiff claims of the defendant $150 as damages for the failure to deliver certain goods, viz., one mule received by it as a common carrier to be delivered to plaintiff at Searight for a reward, which it fails to deliver." Count 3: "Plaintiff further claims of the defendant $150 as damages, for that the defendant, on, to wit, November 27 1905, was a common carrier operating a line of railway between Montgomery, Ala., and Searight, Ala., and as such common carrier received 28 mules, the property of the plaintiff, to carry to Searight, Ala., and deliver to plaintiff for a reward; and plaintiff avers that it failed to deliver one of said mules to plaintiff at Searight Ala."

The defendant interposed the following pleas: (1) The general issue. (2) "That it received 28 mules at Montgomery, Ala., to be transported to Searight, Ala. Said mules were shipped by one William Francis, and were consigned to Monroe Henderson. That the mule sued for was a part of said shipment. That for the consideration of a reduction of freight charges to be paid for the transportation of the said stock it was agreed by defendant and by William Francis, the shipper of said stock, that as a condition precedent to the right of the owner to recover any damages for loss or injury to said stock the owner or person in charge of said stock shall give notice in writing of his claim thereof to some officer of the delivering road or its nearest station agent before said stock is removed from the place of destination above mentioned, or from the place of delivery of the same, and before said stock is mingled with other stock. The defendant says that neither the owner of the stock nor any other person in behalf of said owner gave any notice in writing to any of its officers or agents before said stock was removed from the place of destination above mentioned." (4) Same as 2, down to and including the words "is mingled with other stock," where they occur in said second plea, and adds the following: "Defendant further says that the 28 mules were loaded by it in one car, transported to Searight, and that the said car was then delivered to plaintiff or to his agents. That plaintiff or his agents then removed from said car the mules contained therein and took them into possession and carried them away. That neither the owner of the stock nor any other person in behalf of said owner gave any notice in writing to any of its officers or agents before said stock was removed from place of destination above mentioned." (5) Just the same as 4, with this additional averment: "And defendant says that its agent at Searight, Ala., who delivered said car of mules to plaintiff or his agent, did not count said mules, and did not know the number of mules in said car, and did not know that one mule is alleged to have been missing."

Demurrers were interposed to these pleas, and demurrers were sustained to pleas 4 and 5. The evidence tended to show that 28 mules were delivered to defendant by the agent of the consignee, and that only 27 mules were delivered. There was evidence tending to support the pleas, and also that, when the car was received at Searight, Ala., the seal on the car was unbroken, and that it was impossible to open the door of the car without breaking the seal. There was judgment for plaintiff, and defendant appeals.

Charles P. Jones and W. F. Thetford, Jr., for appellant.

Hill, Hill & Whiting, for appellee.

TYSON C.J.

The third count of the complaint predicated the plaintiff's right of recovery upon the facts alleged that defendant was a common carrier and as such received 28 mules, to be transported to Searight, Ala., to be there delivered to plaintiff for a reward, and that it failed to deliver one of said mules. The defendant undertook by several special pleas to invoke as a defense that provision of the bill of lading which is...