Melbourne v. Louisville & N.R. Co.

• Decision Date: 12 December 1889
• Citation: 88 Ala. 443,6 So. 762
• Court: Alabama Supreme Court
• Parties: MELBOURNE ET AL. v. LOUISVILLE & N. R. CO.

6 So. 762

88 Ala. 443

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

Supreme Court of Alabama

December 12, 1889

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Mountjoy & Tomlinson and W. R. Houghton for appellants.

MCCLELLAN J.

This is a suit by the appellants against the Louisville & Nashville Railroad Company for damages alleged to have been sustained by reason of defendant's failure to deliver a car-load of lime to the Alabama Great Southern Railroad Company, for delivery by the latter company to the plaintiffs, to whom it belonged. Trial was had without jury, and exception reserved to the judgment rendered, which brings before this court the evidence introduced below, and imposes the duty of reviewing the conclusion reached by the city court, that on the evidence plaintiffs were not entitled to recover. Acts 1884-85, p. 216.

The car in question had been shipped from Blount Springs under consignment to plaintiffs at Birmingham. Having arrived at its destination, and notice thereof having been given to plaintiffs, they inspected the contents, ascertained that the lime was in good condition, and paid freight charges. The contract of affreightment was for transportation to defendant's depot-its place of delivery-in Birmingham and delivery at that point to consignees. This contract applied to the transaction at the point from which the liability sought to be enforced in this suit is alleged to have accrued, and imposed on the defendant only the duty of affording plaintiffs an opportunity to receive and take away their property. It involved no duty, unless there was a custom or usage to that effect, to deliver the car to the Alabama Great Southern Company for ultimate delivery to plaintiffs. Any arrangement between defendant's agent and the plaintiffs providing for such intermediate delivery was beyond the terms of the subsisting contract and prima facie beyond the authority of the agent. To make such agreement on his part binding on the company, a custom or usage, of such long standing and notoriety as presumptively to have been known to and adopted by the company itself, must have been shown, of thus delivering cars consigned to parties in the city to other roads centering there, for more convenient, final delivery to the consignees. Such usage would have been a part of the contract of carriage, and imposed on the defendant the duty of delivery to another carrier at the request of the consignee; and from a failure to so deliver would have sprung the liability imputed to the defendant by the complaint here. This usage is not proved. There is some evidence that it was customary and usual for railroads centering in Birmingham to make such delivery for their customers and patrons, but no evidence as to the length of time this custom had existed nor to the universality of its adoption, or of the frequency of resort to it, or of its notoriety; and, on the other hand, there is evidence which denies its existence in toto. Railway Co. v. Kolb, 73 Ala. 396. In the absence of a custom authorizing the agent, at the request of the consignee, to undertake, after the car had reached its destination, a delivery of it at another place, and to another party than the consignee, the arrangement between plaintiffs and the agent was nothing more than a personal and gratuitous accommodation on the part of the latter, beyond the terms of his principal's engagement, and incapable of fixing any liability on the company on account of the...