Louisville & N.R. Co. v. Brewer

• Decision Date: 17 April 1913
• Citation: 183 Ala. 172,62 So. 698
• Parties: LOUISVILLE & N.R. CO. v. BREWER.
• Court: Alabama Supreme Court

62 So. 698

183 Ala. 172

LOUISVILLE & N.R. CO. v. BREWER.

Supreme Court of Alabama

April 17, 1913

Rehearing Denied June 5, 1913

Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.

Action by W.C. Brewer against the Louisville & Nashville Railroad Company, for damages for failure to deliver freight. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Plea 2 is: "That defendant's line of railway runs from Nashville, Tenn., to Montgomery, Ala., and that it has no line of railway running from Montgomery, Ala., to Tuskegee Ala., but that a line of railway known as the Western Railway of Alabama, at said time mentioned in complaint, ran from Montgomery to Tuskegee, Ala., and defendant delivered said goods to said Western Railway in Montgomery within a reasonable time after same were received by it at Nashville that said goods at the time of said delivery by it were in the same condition as when they were received by defendant at Nashville; that said Western Railway, within a reasonable time after delivery to it, safely carried said goods to Tuskegee, and deposited or stored same in a depot or warehouse maintained and operated by it at Tuskegee for the purpose of storing freight and goods; that at the time of the arrival of said goods at Tuskegee, and continuously since said Tuskegee was a city or town having daily mail, and that within 24 hours after the arrival of said goods at Tuskegee notice of the said arrival of said goods was given to plaintiff by mail, which notice was properly addressed to him at Tuskegee and the postage thereon prepaid; that said goods remained in the possession of said Western Railway at its said depot in Tuskegee unclaimed for more than 60 days after their arrival and after notice; and that said goods were thereafter sold by said Western Railway at public outcry, at its freighthouse in Montgomery, Ala., to the highest bidder for cash, after notice, indicating the nature of the package in which said goods were contained, the consignee, and the time and place of said sale, had been given for three weeks by publication once a week in the Montgomery Advertiser, a newspaper published at said place of sale, and that said goods were, upon the sale thereof to the highest bidder delivered to said highest bidder as the purchaser thereof at said sale, and that neither the owner nor consignee of said goods resided at Tuskegee, Ala., at said time."

Tillman, Bradley & Morrow and M.M. Baldwin, all of Birmingham, for appellant

Denson & Denson, of Birmingham, and Weil, Stakely & Vardaman, of Montgomery, for appellee.

DE GRAFFENRIED, J.

This suit was brought by the plaintiff, W.C. Brewer, against the defendant, the Louisville & Nashville Railroad Company, to recover damages for the failure by the defendant to deliver to the plaintiff certain personal property which the plaintiff delivered to the defendant at Nashville, Tenn., and which the defendant undertook for a reward, as a common carrier, to transport and deliver to the plaintiff at Tuskegee, Ala. The complaint contains but one count, and that count is in code form.

We direct attention to the fact that the suit is for a failure to deliver, and not for delay in delivering, the goods, that the suit is against the defendant as a common carrier, and that the complaint counts upon the failure of the defendant to perform a carrier duty, and is for the enforcement of a carrier liability. Under the pleadings in this case the defendant's contract of carriage bound it to the same strict performance of its duties to the plaintiff as the common law places upon a common carrier of freight. It is not claimed that the goods were destroyed through the fault of the plaintiff, by an act of God or of the public enemy, and the defendant was, so long as the relation of common carrier existed between it and the plaintiff, an insurer of the freight.

The defendant's line of railway does not extend from Nashville, Tenn., to Tuskegee, Ala., but only from Nashville, Tenn., to Montgomery, Ala. When the freight reached Montgomery it was then delivered by the defendant to the Western Railway of Alabama, to be by it transported from Montgomery to Tuskegee, and there, by the Western Railway, to be delivered to the plaintiff.

Plea 2, which the reporter will set out, sets up a state of facts which, if true, relieved the defendant of its duties to the plaintiff, as a common carrier, and before the sale of the books for storage and freight charges placed the books in the hands of the Western Railway of Alabama as a warehouseman. Norfolk & Western Ry. Co. v. Stuart's Draft Milling Co., 109 Va. 184, 63 S.E. 415; Ala. & Tenn. Rivers Co. v. Kidd, 35 Ala. 209; Kennedy Bros. v. M. & G.R.R. Co., 74 Ala. 430; Code of 1907, § 6137.

We find nothing in the Carmack amendment to the act of Congress known as the "Hepburn Bill" (Act June 29, 1906, c. 3591, 34 Stat. 593, § 7, pars. 11, 12 [U.S.Comp.St.Supp. 1911, p. 1307]) which in any way conflicts with the above views. Norfolk & W. Ry. Co. v. Stuart's Draft Milling Co., supra; Adams Express Co. v. Croninger, 226 U.S. 491, 33 Sup.Ct. 148, 57 L.Ed. 314.

In the above-cited case of Ala. & Tenn. Rivers Railroad Co. v. Kidd, this court, announcing a well defined and recognized common-law doctrine, said: "If goods, transported by railroad, are not called for by the consignee when they arrive at their destination, and are then deposited in the warehouse of the company without additional charge, until the owner has a reasonable time, by the exercise of proper diligence, to remove them, the liability of the carrier, as a carrier, is at an end; and if after this the goods remain in their warehouse, they are responsible only as keepers for hire. *** If they in fact keep no such warehouse at the point to which goods consigned to the owner or a third person are sent, it seems that the duty of the company is performed and their responsibility at an end, if, after carrying the goods to the place of destination, and keeping them safely for such a length of time as to afford the owner an opportunity, by the use of due diligence, to remove them, they deposit them in the warehouse of a responsible person, for and on account of the owner or consignee."

Of course if a common carrier of freight has no warehouse at the point of destination of freight, and it safely keeps such freight until its carrier duties are at an end, and the consignee fails to...