Louisville & N.R. Co. v. Touart

• Decision Date: 10 November 1892
• Citation: 11 So. 756,97 Ala. 514
• Parties: LOUISVILLE & N. R. CO. v. TOUART.
• Court: Alabama Supreme Court

11 So. 756

97 Ala. 514

LOUISVILLE & N. R. CO. v. TOUART.

Supreme Court of Alabama

November 10, 1892

Appeal from circuit court, Conecuh county; JOHN P. HUBBARD, Judge.

Action by Louis Touart against the Louisville & Nashville Railroad Company for defendant's failure to deliver five bales of cotton which had been received by it for transportation to Mobile, Ala. From a judgment for plaintiff, defendant appeals. Affirmed.

Upon the introduction of all the evidence the plaintiff requested the court to give the following written charges: (1) "The court charges the jury that the consignee of the goods or cotton has a right to sue for their loss by the carrier notwithstanding another party may be the owner of them." (2) "The court charges the jury that if they believe from the evidence that the cotton in question was consigned by Cobb to Touart, then, prima facie, the title to the property is in Touart, the plaintiff, and the burden is on the defendant to overturn this presumption." (3) "The court charges the jury that if the defendant received the five bales of cotton for transportation, without any contract to the contrary, it thereby undertook to carry and deliver them within a reasonable time, regardless of any unexpected or extraordinary pressure of business upon it." (4) "The court charges the jury that contracts with common carriers are generally drawn up by themselves, and should therefore be construed most strongly against them." The defendant separately excepted to the giving of each of said charges, and also separately excepted to the court's refusal to give the following charges, requested by it in writing: (5) "If the jury believe the evidence, they must find for the defendant." (6) "The court charges the jury that there is no proof of negligence on the part of the defendant." (10) "The mere fact that the cotton was not shipped from Evergreen prior to the fire is not evidence of negligence on the part of the defendant."

J M. Falkner and Chas. P. Jones, for appellant.

Farnham & Crum, for appellee.

COLEMAN J.

The railroad was sued for failing to deliver five bales of cotton received by it as a common carrier, consigned to plaintiff at Mobile, Ala. The defendant pleaded specially the contract of shipment set out in the bill of lading, and which contained a provision that the railroad was not liable "for loss or damage on any articles of property whatever by fire or other casualty while in transit or while in depots or places for reception," etc. There was no other plea, and issue was joined upon the defendant's special plea. The evidence for plaintiff shows that the cotton was received by the defendant at its depot warehouse at Evergreen, Ala., three of the bales October 8, 1889, and two October 9, 1889, and before 10 A. M. each day, and that the cotton was not delivered at Mobile according to the bill of lading. The evidence for the defendant tended to show that at about 2:30 A. M. of the night of the 9th of October, 1889, the warehouse was destroyed by fire with all its contents, and the cotton burned up in this fire. The trial resulted in a verdict for the plaintiff.

All the assignments of error are based upon the charges given at the request of the plaintiff and the refusal of the court to charge as requested by the defendant. The first two charges given for plaintiff involve his right to maintain the suit. It would be sufficient to say that this question was not raised by the plea of the defendant, and cannot be first raised in this court. When applied to the evidence, the plaintiff, as consignee, was the proper person to sue for the loss of the cotton. Robinson v. Pogue, 86 Ala. 261 5 South. Rep. 685; Express Co. v. Armstead, 50 Ala. 351. There is no evidence in the record of a pressure of business at the time of the loss. The latter clause of charge No. 3 given for plaintiff may be abstract, and tends to render the charge somewhat misleading, but we cannot say there is error in the charge. Railroad Co. v. Little, 71 Ala. 613. It is certainly true that, in the absence of a stipulation to that effect, and the absence of all evidence of a pressure of business, the law required of the carrier that the goods be delivered in a reasonable time. In this respect the charge was abstract, but we cannot see that the giving of the charge was calculated to injure the defendant. The fourth charge asserts that "contracts with common carriers are generally drawn up by themselves, and should therefore be construed most strongly against them." No authority has been cited which sustains the legality of the proposition when applied to the whole contract, as asserted in this charge. Under such a principle it would be dangerous for any person to reduce to writing the terms of a contract to which he was to become a party. Such a rule would necessitate the employment of third persons to prepare all written contracts. It is the law, based on grounds of public policy and the relative position of the parties, that an exception inserted in a contract limiting the common-law liability of a common carrier should be strictly construed against him. Steele v. Townsend, 37 Ala. 255; Atwood v. Transportation Co., 9 Watts, 87; Railroad Co. v. Meyer, 78 Ala. 600. Without the exception he would be liable, and the exception, to be valid, must be strictly within the meaning of the parties, reasonable in itself, and not against public policy. 78 Ala. 600, supra. There is nothing in the record which authorized the charge, if abstractly correct. The evidence shows that the bookkeeper of the consignor filled up the contract in this instance, and not the carrier; and it is further in evidence that the bills of lading were usually filled out that way at that place. The giving of charge No. 4 was calculated to mislead the jury to the prejudice of the defendant, and, unless the evidence shows that plaintiff was entitled to the general affirmative charge, it was error which must reverse the case.

There are some principles of law applicable to the evidence which will...