Clark v. Louisville & N.R. Co.

• Decision Date: 20 October 1927
• Docket Number: 3 Div. 809
• Citation: 216 Ala. 637,114 So. 295
• Parties: CLARK v. LOUISVILLE & N.R.R. CO.
• Court: Alabama Supreme Court

114 So. 295

216 Ala. 637

CLARK v. LOUISVILLE & N.R.R. CO.

3 Div. 809

Supreme Court of Alabama

October 20, 1927

Appeal from Circuit Court, Conecuh County; John D. Leigh, Judge.

Action by C.W. Clark against the Louisville & Nashville Railroad Company. Plaintiff takes a nonsuit, and appeals from adverse rulings on pleading. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

Sternfeld & Lobman, of Montgomery, and Jones & Jones, of Evergreen, for appellant.

Steiner Crum & Weil, of Montgomery, and Hamilton & Jones, of Evergreen, for appellee.

GARDNER J.

This suit is by the appellant against appellee to recover damages growing out of delay in the transmission and delivery of a carload of potatoes received originally by the defendant as initial carrier for shipment from Castleberry, Ala., to Cincinnati, Ohio.

Demurrers to counts 1 and 3 were overruled, but sustained as to counts 2 and 4, and count 4 as amended. By reason of the adverse ruling of the court as to these latter counts, plaintiff suffered a nonsuit, and appeals to review the action of the court in sustaining said demurrer to counts 2, 4, and 4 as amended.

The shipment was interstate, and recovery is sought against defendant as initial carrier under the provisions of what is known as the Carmack Amendment to the Interstate Commerce Act of Congress. U.S. Code, tit. 49, § 20, subd. 11 (49 USCA § 20, subd. 11; U.S. Comp.St. § 8604a). We are of the opinion the trial court correctly ruled in holding these counts insufficient as stating a cause of action against the initial carrier under the above-noted statute.

An affirmative requirement of the statute is the issuance by the initial carrier of a bill of lading for the goods delivered for such interstate shipment (Adams Express Co. v Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314, 44 L.R.A.[ N.S.] 257), and by express terms relates to property "transported on a through bill of lading." "The obligation of the initial carrier ceases when the goods reach the destination in good condition to which they were originally intended or consigned." 1 Roberts Fed. Liability of Carrier, § 346.

In Pere Marquette R. Co. v. French & Co., 254 U.S. 538, 41 S.Ct. 195, 65 L.Ed. 391, there was involved an alleged wrongful delivery in an interstate shipment, and in discussing the question the court said:

"Having brought the goods to the destination named in the bill of lading the carrier's only duty under its contract was to make a delivery at that place; and it could make that delivery by turning the goods over to another carrier for further carriage. *** The fact that in forwarding the car the Big Four used the original waybill, striking out the word 'Louisville' under the 'destination' and substituting 'Dumesnil, Ky. So. R.R.' is of no significance. The shipment from Louisville to Dumesnil was a wholly new transaction. In turning over the car for this new shipment the railway made a disposal of it in assumed termination and discharge of its obligations, which was, in legal contemplation, a delivery."

The case of Parker-Bell Lumber Co. v. Great Northern R. Co., 69 Wash. 123, 124 P. 389, 41 L.R.A. (N.S.) 1064, supports the following text in 4 R.C.L. 908, to which it is cited:

"This liability, however, cannot be extended beyond the contract evidenced by the bill of lading; and that is, to deliver the shipment at the place of destination therein named. Any damage *** under a new bill of lading, cannot be recoverable against the initial carrier in the first bill of lading, whose contract and whose liability for damages, whether occurring upon its own line or that of any connecting line, cannot be extended beyond the destination fixed in the bill of lading."

It is recognized as the general rule "that prima facie a bill of lading operates [as] a transfer to the consignee of the title to the goods shipped; and in the absence of evidence removing the presumption, an action against the carrier for failure to deliver, or for *** loss or injury to the goods while in his possession, will lie only at the suit of the consignee." Louisville & N.R. Co. v. Allgood, 113 Ala. 163, 20 So. 986.

"The owner of goods shipped--and prima facie the consignee is the owner--may change his instructions as to their destination, and substitute a different place of delivery; but this *** he must do during the transit, and not after their destination has been reached, and the terms of the carrier's obligation have been fulfilled." Melbourne & Troy v. L. & N.R. Co., 88 Ala. 443, 6 So. 762; 2 Hutchinson on Carriers (2d Ed.) §§ 660 and 735.

The counts here in question each disclose that the bill of lading issued was for shipment from Castleberry, Ala., to Cincinnati, Ohio. The damages sought to be recovered however, are for delay in arrival of the shipment at Detroit, Mich. Count 2 fails to allege the name of the consignee or to show that plaintiff had the legal right to divert the shipment; the consignee being the presumptive owner of the...