Louisville & N.R. Co. v. Bashinsky, Case & Co.

• Decision Date: 17 December 1925
• Docket Number: 1 Div. 389
• Citation: 214 Ala. 169,106 So. 804
• Parties: LOUISVILLE & N.R. CO. v. BASHINSKY, CASE & CO.
• Court: Alabama Supreme Court

106 So. 804

214 Ala. 169

LOUISVILLE & N.R. CO. v. BASHINSKY, CASE & CO.

1 Div. 389

Supreme Court of Alabama

December 17, 1925

Rehearing Denied. Jan. 21, 1926

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

Action for damages by Bashinsky, Case & Co. against the Louisville &amp Nashville Railroad Company. From a judgment awarding plaintiffs' motion for a new trial, defendant appeals. Affirmed.

Bonner & Miller, of Camden, and Jones & Thomas, of Montgomery, for appellant.

Hybart & Hare, of Monroeville, for appellee.

MILLER J.

This is an action by members of the firm of Bashinsky, Case & Co. against the Louisville & Nashville Railroad Company, a corporation, and the Manistee & Repton Railroad Company, a corporation, for damages by fire to 50 bales of cotton, after they were delivered to the defendants at Excel, Ala., for transportation for hire, consigned to J.S. Williams & Co. notify Bashinsky, Case & Co. at Mobile, Ala., alleging plaintiffs owned the cotton at the time it was so damaged.

The complaint was amended by striking out the Manistee & Repton Railroad Company as a party defendant.

There was a verdict of a jury in favor of the defendant, and judgment thereon by the court. The plaintiffs made motion for a new trial based on many grounds. The court granted the motion, set aside the verdict of the jury and the judgment for the defendant, and ordered a new trial. This appeal is prosecuted by the defendant from this judgment granting the motion for new trial, and it is the error assigned.

The cause was presented to the jury under four pleas: B, general issue; A, non est factum, the bill of lading for the cotton was not executed by this defendant or by any one authorized to bind it in the premises; (4) the plaintiff delivered this cotton to the Manistee & Repton Railroad Company for transportation from Excel, Ala., to Mobile, Ala.; the cotton was insured by plaintiffs against loss by fire, and plaintiffs have collected on the insurance policy full compensation for the loss by fire; and said initial carrier, Manistee & Repton Railroad Company, had a written contract with plaintiffs, which provided:

"Any carrier or party liable on account of loss or damage to any of said property shall have the full benefit of any insurance that may have been effected upon or on account of said property, so far as this shall not avoid the policies or contract of insurance."

Plea 5 was practically the same as plea 4. This defendant joined issue on said pleas, and filed replications to them.

The trial court held replication 3 sufficient to each of the four pleas mentioned. This replication reads as follows:

"Plaintiffs allege that the said defendant held out the Manistee & Repton Railroad Company to the public as its agent to receive for transportation and issue bills of lading for and in the name of said defendant from Excel, Ala., to Mobile, Ala., as well as other points of destination on said Louisville & Nashville Railroad. And plaintiffs delivered said cotton to said Manistee & Repton Ry. Company relying on its ostensible agency for the Louisville & Nashville Railway Company."

The pleadings and rulings of the court thereon are voluminous. Whether the rulings of the court are correct is not presented for review by the argument of counsel for appellant or appellee.

The court gave the following charge numbered 7 to the jury at the request of defendant:

"The court charges the jury that, if you believe the evidence in this case, you will find for the defendant under plaintiffs' replication No. 3."

The court in granting the motion of plaintiff for a new trial states it erred in giving written charge numbered 7.

The appellant insists that, if the trial court committed error it was without injury to the defendant, because under all the evidence the defendant was entitled to the general affirmative charge, as there is no evidence tending to show that the Manistee & Repton Railroad Company was the agent of this defendant in receiving this cotton. There is no evidence that defendant held it out to the public as its agent in so doing, and there is no evidence tending to show plaintiffs delivered the cotton to the Manistee & Repton Railroad Company, relying on its ostensible agency for this defendant therein.

Is there any evidence tending to show that the Manistee & Repton Railroad Company, a corporation, was the agent of the defendant in this transaction? This is the real question presented by the record, and by the argument of the counsel for the parties. If so, then the general affirmative charge with hypothesis should not have been given for the defendant, and the trial court erred in giving that written charge numbered 7, and properly granted the motion for a new trial. Brown v. Mobile Elec. Co., 207 Ala. 61, headnote 8, 91 So. 802; McMillan v. Aiken, 205 Ala. 35, head notes 9-11, 88 So. 135.

The general rule as to proof of agency has been stated by this court in Reynolds v. Collins, 78 Ala. 97, as follows:

"It is a general rule that agency cannot be established by proof of the mere acts of the professed agent, in the absence of any evidence tending to show the principal's knowledge of, or assent to such acts; but, if they are of such nature, and so continuous, as to justify a reasonable inference that the principal knew of them, and would not have permitted them if unauthorized, the acts are competent evidence of agency, to be submitted to the jury. Bradford v. Barclay, 39 Ala. 33; Gimon v. Terrell, 38 Ala. 208."

See, also, Roberts & Sons v. Williams, 198 Ala. 290, headnotes 3-6, 73 So. 502; Bank v. Plannett, 37 Ala. 222, headnote 3; Langham v. Jackson, 211 Ala. 416, headnotes 1-3, 100 So. 757.

The cotton in question was delivered by plaintiffs' agent to J.S. Abney at Excel, a station on the Manistee & Repton Railroad Company's line. The defendant's line does not run through Excel; its nearest point thereto being Manistee Junction, which is seven or eight miles away, at which point there is a physical connection between the two lines. Abney, when he received this cotton at Excel delivered to plaintiffs' agent a bill of lading of defendant, Louisville & Nashville Railroad Company for it, and Abney signed it "J.S. Abney, Agent." The name of the Manistee & Repton Railroad Company did not appear thereon. This defendant's (Louisville & Nashville Railroad Company's) name as carrier alone appeared thereon. Abney also issued a way bill for this...