Louisville & N.R. Co. v. Strickland

• Decision Date: 11 April 1929
• Docket Number: 2 Div. 941.
• Citation: 219 Ala. 581,122 So. 693
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. ET AL. v. STRICKLAND.

122 So. 693

219 Ala. 581

LOUISVILLE & N. R. CO. ET AL. v. STRICKLAND.

2 Div. 941.

Supreme Court of Alabama

April 11, 1929

Rehearing Denied June 13, 1929.

Appeal from Circuit Court, Wilcox County; Thomas E. Knight, Judge.

Action for damages by O. M. Strickland against the Louisville &amp Nashville Railroad Company and the Western Railway of Alabama. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under Code 1923, § 7326 Affirmed.

Bonner & Miller, of Camden, Steiner, Crum & Weil, of Montgomery, and Reese & Reese, of Selma, for appellants.

B. M Miller, of Camden, for appellee.

FOSTER J.

The action is for a breach of contract for the shipment of live stock from a point in Wilcox county, Ala., on the line of the appellant Louisville & Nashville Railroad Company to Cook's Station, Montgomery county, Ala., on the line of appellant Western Railway of Alabama. Each of the appellants separately filed a plea in abatement. That of the Louisville & Nashville Railroad Company is based upon the claim that the action is under section 10045 of the Code, and that section provides that such suit shall be filed in the county of the delivery, which was not done. Neither the complaint nor the plea alleges that the Louisville & Nashville Railroad Company is a domestic corporation, nor that it is a foreign corporation. To sustain the court in its ruling, and upon considering a demurrer to pleading, the usual presumption in the absence of allegation is against the pleader. We will presume therefore that the Louisville & Nashville Railroad Company is a foreign corporation.

If it is a foreign corporation, the venue of an action against it, whatever be the nature of the action, is controlled by section 232 of the Constitution, which is self-executing. This court has had occasion recently to consider this subject in the case of General Motors Acceptance Corporation v. Home Loan Co., 120 So. 165. It is there pointed out that no statute may change the effect of section 232 of the Constitution, and cannot make provision for suit contrary to its terms. It was held in the case of Ex parte Western Union Tel. Co., 200 Ala. 496, 76 So. 438, that section 6112 of the Code of 1907, section 10471 of the Code of 1923, in so far as it provides that actions may not be brought against a foreign corporation in any county in which the corporation is doing business, violates section 232 of the Constitution. The right of a party to sue a foreign corporation in any county in Alabama, where it is doing business by agent, cannot be affected by a legislative enactment.

If we assume that the action both as to form and venue must be governed by section 10045, we would have to limit it as a venue provision to domestic corporations, and not include foreign corporations, just as some of the provisions of section 10471 are held not to apply to suits against foreign corporations. Ex parte Western Union Tel. Co., supra.

It is not, however, necessary, we think, to indulge in that assumption, for the contrary appears to be true. For while section 10045 contains the following clause, "the suit to be instituted in the county of delivery," it also provides that any other remedy now in force may be pursued by the plaintiff. Taking this section as a whole, we think it clearly means that both as to the form of action and its venue, it is cumulative and not restrictive; and that though the form of action be as provided by its terms, the venue prescribed by it is not exclusive. The venue may be otherwise controlled by the Constitution, or for domestic corporations by statutory enactment; and we will later herein undertake to show that as a remedial statute there is merely by it made plain a form of action which results from the provisions of section 10043.

The plea in abatement of the Louisville & Nashville does not allege that it was not doing business in Wilcox county, when this suit was commenced in that county, and it is therefore subject to that ground of demurrer which points out that defect.

The plea in abatement of the Western Railway alleges that it is a domestic corporation, and was not doing business in Wilcox county when the suit was commenced, nor when the cause of action arose. It is contended that section 9418 cannot apply, because this action is not a joint or joint and several action. We cannot agree with this contention, and conclude that it is a joint and several action on the theory which we will now discuss.

Section 10043 of the Code adopts for intrastate shipments the salient features of the Carmack Amendment (49 USCA § 20 (11, 12), which is only applicable to interstate commerce. The Supreme Court of the United States in the case of Mo., Kan. & Texas R. Co. of Texas v. Ward, 244 U.S. 383, 37 S.Ct. 617, 61 L.Ed. 1213, in respect to the Carmack Amendment held that the liability of each participating carrier is fixed by the applicable valid terms of the original bill of lading, and that such bill of lading governs the entire transportation, even though the connecting carrier may issue another bill of lading of a different tenor accepted by the shipper; that the connecting carrier is bound already by the original contract of shipment; and that for the purpose of fixing liability all the carriers involved must be treated, not as independent contracting parties, but as one system; and the connecting lines become in effect mere agents whose duty it is to forward the goods under the terms of the contract made by their principal, the initial carrier.

The same principles of construction are approved in the case of Texas & Pacific Rwy. Co. v. Leatherwood, 250 U.S. 478, 39 S.Ct. 517, 63 L.Ed. 1096, wherein it is also said that the bill of lading issued by the initial carrier is the contract of transportation to final destination, and its terms are binding upon all connecting carriers. To the same effect is the case of Georgia, F. & A. Rwy. Co. v. Blish Milling Co., 241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948. All these cases are cited with approval in our case of So. Rwy. Co. v. N.W. Fruit Exch., 210 Ala. 519, 98 So. 382. As a result of this principle it follows that the liability of the initial and such connecting carrier causing the loss and injury in the shipment is joint and several, and that without the aid of such a statute as our section 10045. Drake v. N., C. & St. L. Rwy. Co., 125 Tenn. 627, 148 S.W. 214; Otrich v. St. L., I. M. & S. Rwy. Co., 154 Mo.App. 420, 134 S.W. 665; Id., 164 Mo.App. 444, 144 S.W. 1199; Mo., etc., R. Co. v. Demere (Tex. Civ. App.) 145 S.W. 623.

This is not in conflict with our case of Lynn v. Mellon, 217 Ala. 75, 114 So. 680, for while the court there states that the liability is several, the suit did not include the initial carrier, but only connecting carriers. As to them the liability is several, as there pointed out, and not joint in its nature and effect, though more than one of them may be liable. Such liability would result from separate and distinct acts and conduct of each, and when there is no contract whereby one is responsible for the acts of the other. Whereas the initial carrier is by law made responsible for such acts of all connecting carriers, and is thereby jointly and severally liable with each of them.

In all the cases above cited the action was against the initial and connecting carriers jointly. This result was concluded from those features of the Carmack Amendment which are the same as our section 10043, there being nothing in said amendment of similar import to our section 10045. So that the result reached is without respect to and independent of the terms of the latter section. We think we should apply to our statute, adopting the Carmack Amendment, the construction which the Supreme Court of the United States has applied to such amendment.

We also think section 9418 of the Code, though it mentions a joint and several action, has application to any action properly brought against two or more parties, wbether the primary nature of the action be joint or joint and several or several. It is true that it does not refer to strictly "several" causes of action, for when such is the case they may not be united in a joint suit. Childress v. McCullough, 5 Port. 54, 30 Am. Dec. 549; Jones v. Engelhardt, 78 Ala. 505; Redmond v. L. & N. R. R. Co., 154 Ala. 311, 45 So. 649; Jackson v. Bush, 82 Ala. 396, 1 So. 175; 1 C.J. 1072; 13 C.J. 574 et seq.; 6 R. C. L. 878. But any suit at law properly brought against two or more parties is by such authority rendered joint or joint and several, though otherwise it may be merely several. So that to the extent that section 10045 authorizes a joint suit it makes the cause of action a joint and several one when there is a liability by more than one defendant, even if we could hold that without it the action would only be several, as counsel contend, but which we have shown is not the situation in all cases.

The complaint alleges that one of the animals in the shipment was delivered to the consignee in bad condition, injured bruised, etc., but was received by the Louisville & Nashville in good condition. Allegations of that nature...