Louisville & N.R. Co. v. Duncan & Orr

• Decision Date: 21 April 1903
• Citation: 34 So. 988,137 Ala. 446
• Parties: LOUISVILLE & N. R. CO. v. DUNCAN & ORR. [a1]
• Court: Alabama Supreme Court

34 So. 988

137 Ala. 446

LOUISVILLE & N. R. CO. v. DUNCAN & ORR. ^[a1]

Supreme Court of Alabama

April 21, 1903

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by James C. Duncan and another against the Louisville &amp Nashville Railroad Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

On the trial of the case the following facts were shown:

Plaintiffs delivered the live stock to defendant at Birmingham Sunday November 5, 1899, at noon. Before delivery one of the plaintiffs and defendant's agent executed the contract which was attached as Exhibit A to the bill of exceptions. Against defendant's objection and exception, the court admitted evidence of a conversation between one of the plaintiffs and said agent to the effect that the agent said to plaintiff, in response to his inquiry, that the stock ought to arrive at Thomasville, Ga., a station near Greenville, Fla., on the Plant System, at 9 or 10 o'clock Monday night; that plaintiff objected because the written contract failed to show that the shipment was routed by the Plant System; that in reply to this objection the agent said that the shipment would go that way, and the waybill would show the routing, and that it was unnecessary for the written contract to show it. The testimony of plaintiffs also tended to show that another of defendant's agents issued free transportation to one of the plaintiffs on the contract of shipment to Montgomery, and told him that on presentation of his contract to the Plant System at Montgomery free transportation would be issued him to Thomasville, Ga., and that said plaintiff went from Birmingham on a passenger train to Thomasville, Ga., on the day of the shipment, and there first learned that the shipment had not been routed by the Plant System. The evidence showed that the shortest route from Birmingham to Greenville was by way of the Plant System from Montgomery; that the next shortest route was by way of the Georgia & Alabama Railroad from Montgomery to Cordele Ga., where connection was made with the Georgia Southern &amp Florida Railroad; thence on that railroad to Lake City, Fla where it connected with the Florida Central & Peninsular Railroad; and thence on the latter railroad to Greenville, Fla. The evidence showed that each of said railroads formed connections with, and received shipments of similar character from, the other at the time plaintiffs' stock was being transported, forming a through route between Montgomery and Greenville via Cordele and Lake City, 382 miles long. The evidence showed that there was another route by way of the defendant's railroad to River Junction, Fla., and thence over the Florida Central & Peninsular Railroad to Greenville, which was 408 miles long, 26 miles longer than the previous route. The other route (which plaintiffs contended the shipment in fact took) was via the Georgia & Alabama Railroad from Montgomery eastward by way of Cordele to Savannah, thence southward over the Seaboard Air Line to Baldwin, Fla., and thence westward over the Florida Central & Peninsular to Greenville. Taking this latter route, it was necessary to transport the stock, in order to reach Savannah, 168 miles east of and beyond Cordele on the Georgia & Alabama Railroad, and westward practically the same distance from Baldwin to Lake City, which is about south of Cordele. The route via Savannah and Baldwin was thus about 325 miles longer than that via Cordele and Lake City. Each of these routes left Montgomery eastward over the Georgia & Alabama Railroad, one diverging south at Cordele and the other 168 miles further east at Savannah. The evidence showed that the Georgia & Alabama Railroad Company received the shipment from defendant at Montgomery unhampered by any instructions as to its routing beyond Montgomery, other than that its ultimate destination was Greenville, Fla. The evidence also showed that the connections of the Georgia & Alabama Railroad at Cordele and Lake City were such at the time of shipment that it could have routed the shipment that way.

The evidence showed that plaintiffs' stock reached Montgomery about 6 p. m. Sunday; that upon arrival there the waybill on which the stock was billed was delivered to one Walton, who had charge of the distribution of cars arriving on defendant's road and destined to points beyond it to the proper connecting carrier; that upon receipt of the waybill said Walton tendered said car of stock by telephone message to the office of the Alabama Midland Railroad or Plant System; that this was the proper office to which to make such tender, and that it was usual to make such tenders of shipments over the telephone to connecting lines, including the Plant System; that the person in the office of the Plant System who responded to Walton's telephone message declined to accept the shipment tendered it, stating that his company had a rule prohibiting it from handling shipments for points on the Florida Central & Peninsular Railroad, on which Greenville was located; that said Walton then explained that the shipment was of live stock, and that the person at the telephone replied that this made no difference, as the rule was arbitrary not to accept shipments of any character for points on that road. The evidence shows that Walton then called up defendant's yard office, and ascertained that neither plaintiffs nor their agent accompanied the car of stock, and that said Walton then called up the Georgia &amp Alabama Railroad Company's local office at...