Davis v. Dawkins

• Decision Date: 23 November 1922
• Docket Number: 4 Div. 8.
• Citation: 209 Ala. 45,95 So. 188
• Parties: DAVIS, DIRECTOR GENERAL, ETC., v. DAWKINS.
• Court: Alabama Supreme Court

95 So. 188

209 Ala. 45

DAVIS, DIRECTOR GENERAL, ETC., v. DAWKINS.

4 Div. 8.

Supreme Court of Alabama

November 23, 1922

Rehearing Denied Jan. 25, 1923.

Appeal from Circuit Court, Henry County; H. A. Pearce, Judge.

Action by W. T. Dawkins for damages against James Cox Davis as Director General, etc. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6 Acts 1911, p. 449. Affirmed.

Arrington & Arrington, of Montgomery, for appellant.

W. L Lee, of Columbiana, for appellee.

THOMAS J.

The suit was for injury to stock being transported by a common carrier; and error is assigned of the failure to give the general affirmative charge requested in writing by defendant. To the complaint, in Code form, the defendant replied by the general issue and special plea as follows:

"That, if the mule was injured as the result of any defect in the car in which it was transported, that the defendant is not liable for said injury for that, in the contract of shipment under which the said mule was shipped in consideration of the reduced rates of freight or special rate of freight, it was expressly agreed that the shipper would examine the car, and had done so, and found it in good order and condition provided for the transportation of said mule, and that he accepted the same and agreed that the said car was suitable and sufficient for the purpose of transporting said mule."

The judgment recites that upon this plea issue was joined. On the trial plaintiff offered in evidence the bill of lading for an intrastate shipment of stock from Montgomery to Abbeville, Ala., containing provisions that-

"The party of the second part, in consideration of the special rate hereinbefore provided, and of the transportation of said animals as aforesaid, hereby covenants and agrees: That he has examined and found in good order and condition the car or cars provided by the railway company for the transportation of said live stock and hereby accepts the same and agrees that they are, as thus provided, suitable and sufficient for said purpose."

And that-

"As a condition precedent to any right to recover any damage for loss or injury to said live stock, notice in writing of the claim therefor shall be given to the agent of the carrier actually delivering said live stock wherever such delivery may be made, and such notice shall be so given before said live stock is removed or intermingled with other live stock."

The evidence showed that the animal was injured by reason of a hole in the floor of the car in which the animal (with others) was shipped.

Provisions of a bill of lading limiting liability or the amount of recovery in event of liability are available to a carrier without a special plea where the bill of lading has been offered in evidence by the plaintiff. Ex parte J. Kilgore & Son, 191 Ala. 671, 67 So. 1002; I. C. R. R. v. Kilgore & Son, 12 Ala. App. 358, 67 So. 707. The complaint, being in Code form, authorized the plaintiff to recover by proving the special contract, the bill of lading ( L. & N. R. Co. v. Landers, 135 Ala. 504, 33 So. 482; N. C. & St. L. v. Cody, 137 Ala. 597, 34 So. 1003; Walter v. A. G. S., 142 Ala. 474, 481, 39 So. 87; Sou. Ry. v. Webb, 143 Ala. 304, 39 So. 262, 111 Am. St. Rep. 45, 5 Ann. Cas. 97), and a breach of the terms thereof.

Were the foregoing provisions in the bill of lading, as pleaded, that the shipper had examined the car and found it in "good order and condition" as "provided by the railway company for the transportation" of the livestock in question, and accepted the same and agreed that said car "as thus provided" was "suitable and sufficient for said purpose," conclusive of the fact of examination and knowledge of its condition as indicated? If so, or if the fact of such inspection and acceptance was shown by the uncontroverted evidence, the affirmative charge, requested by defendant should have been given. The sufficiency of a provision for notice of injury and damage in a bill of lading, where the injury and damage were "peculiarly within the knowledge" of plaintiff was the subject of discussion in intrastate shipments in N. C. & St. L. v. Hinds, 178 Ala. 657, 59 So. 669, N. C. & St. L. v. Cash, 195 Ala. 307, 70 So. 269, and Sou. Ry. v. Harris, 202 Ala. 263, 80 So. 101, under provisions of Code, § 4297, and in interstate shipments in N., C. & St. L. v. Camper, 201 Ala. 581, 78 So. 925, and Sou. Ry. v. Propst & Duckworth, 16 Ala. App. 186, 76 So. 470, under the Carmack Amendment, 24 Stat. 379, 382, c. 104, 34 Stat. 593, § 20, U.S. Comp. St. §§ 8604a, 8604aa, and Northern Pac. v. Wall, 241 U.S. 87, 36 S.Ct. 493, 60 L.Ed. 905, and G. F. & A. v. Blish Mill. Co., 241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948. No contention is made that federal laws or regulations have application to this phase of the case.

In Southern Railway v. Harris, supra, is contained the observation of the limitation of the statute to an intrastate shipment that:

"The provisions of Code, §§ 4297, 5546, 5547, rendered nugatory any stipulation of bills of lading undertaking to set up agreements in qualification of established legal rights or notices of claim as a condition to the existence of the cause of action or to the right to declare for the wrong suffered."

Statutory provisions of force and having application to contracts such as declared upon in the instant complaint, or relied upon by introduction in evidence by the plaintiff, of the bill of lading, are that:

"Every railroad shall, when within its powers so to do, and upon reasonable notice, furnish suitable cars to any and all persons who may apply therefor, for the transportation of any and all kinds of freight in carload lots." Code, § 5539.

"Every common carrier, railroad, or transportation company receiving property for transportation, originating and terminating in this state, shall issue to the shipper a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it; *** and no contract, stipulation, receipt, rule, or regulation contained in said receipt or bill of lading, or otherwise, shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed; but nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing laws." Section 5546.

"All railroad companies shall on demand issue duplicate freight receipts or bills of lading to shippers, *** and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it, *** and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from liability imposed, and nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law." Section 5547.

The measure of damages for loss, injury, or delay in delivery, etc., by common carriers was specifically declared by sections 5514 et seq. of the Code.

The uncontradicted testimony for plaintiff showed injury to the mule before its arrival at Abbeville; that the same was in good condition when delivered to defendant's stockyards in Montgomery to be loaded on the car; that the consignor at Montgomery received the bill of lading in question from the common carrier about the time of delivery to the railroad at its stockyards, but did "not know who loaded the stock in the car"; that "all stock were left in control of the railroad authorities to be loaded" and that he "got a bill of lading for them at the time they were turned over to the railroad"; that he was not present when they were loaded; that he never saw the car and did not examine it at any time as recited in the bill of lading; that when he was at the stockyard his mules were in a pen of defendant whose agent had "charge of the yards" and that the stock in question were in good condition when delivered to the railroad...