Mouton v. Louisville & N.R. Co.

• Decision Date: 20 December 1900
• Citation: 29 So. 602,128 Ala. 537
• Parties: MOUTON v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

29 So. 602

128 Ala. 537

MOUTON v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

December 20, 1900

Appeal from circuit court, Lauderdale county; E. B. Almon, Judge.

Action by A. E. Mouton against the Louisville & Nashville Railroad Company. From a judgment in favor of the defendant, plaintiff appeals. Reversed.

This was an action brought by the appellant, A. E. Mouton, the successor of the firm of Moss & Mouton, against the Louisville & Nashville Railroad Company, for its failure as a common carrier to transport and deliver certain wagons delivered to it at Florence, Ala., to be carried to Lafayette, La.

The defendant pleaded the general issue and a special plea, the substance of which is set forth in the opinion. To this plea the defendant demurred upon several grounds. The judgment entry upon this demurrer was as follows: "Comes the parties by their attorneys, and the demurrer to the special plea filed in this cause on the 7th day of March, 1899, is by the court overruled." The other facts of the case necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the court, at the request of the defendant, gave the general affirmative charge in its behalf, to the giving of which charge the plaintiff duly excepted.

There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

John T Ashcraft and Emmet O'Neal, for appellant.

Thos G. & Chas. P. Jones and Alex C. Birch, for appellee.

HARALSON J.

1. The complaint is in Code form against defendant, for failure as a common carrier to transport certain described wagons delivered to it at Florence, Ala., to be transported to Lafayette, La.

The defendant pleaded the general issue, and a special plea, that the property was delivered to it as a common carrier at Florence, Ala., under a contract expressed in the bill of lading, whereby it was stipulated and agreed that defendant should not be liable "for any loss thereof or damage thereto by causes beyond its control or by floods or fire," alleging, "that while said property was in its possession and during the transportation, said property was destroyed by fire, and that said fire and said loss were not the result of negligence on the part of defendant."

There was a demurrer to this plea on several grounds, but no judgment thereon appears, and it will be treated as waived.

The plaintiff filed replications to this plea, "(1) That there was no consideration moving from defendant to the plaintiff for the special limitations limiting liability, (2) there was no consideration moving from the defendant to the consignor of the goods for the special limitations limiting liability, and (3) the bill of lading was not signed by the shipper or his agent."

The defendant moved to strike replications 1 and 3, and the judgment entry shows, in proper form of judgment, that the motion was granted; but the motion, ruling of the court thereon and exception to the ruling, do not appear in the bill of exceptions.

The case was tried, therefore, on the general issue; on issue joined on the defendant's special plea, and on issue joined on the replications to defendant's said special plea. Stated in condensed form, the issues were, whether or not there was any binding special contract, such as is set up in said special plea; and if so, whether, while the property was in the possession of defendant and during its transportation, it was destroyed by fire, by the negligence of defendant; and, whether there was any consideration moving from defendant to the consignor of the goods for the special stipulation limiting defendant's liability for the loss of the goods by fire during transportation.

2. It was admitted, that on the 20th September, 1897, the Florence Wagon Works, the manufacturers of the wagons and the consignors, delivered to defendant at Florence one car of wagons, directed to Moss & Mouton, the consignees, at Lafayette, La., and that said car and goods were never delivered. The value of the wagons was also admitted, and that the plaintiff, A. E. Mouton, was the successor of said Moss & Mouton and the proper party to bring the suit.

It was shown that the car was properly packed without waste or shavings, and that the wagons could not be very easily removed from the car by an inexperienced person, and could be much more easily removed through one door of the car, than through the other. They were taken to pieces for shipment.

This proof, without more, entitled the plaintiff to a verdict.

3. The carrier is liable at common law for the safety of the goods intrusted to his care for transportation, for injuries or losses which cannot be directly traced "to the act of God, or of the public enemy, or of the party complaining." To this extent, his liability is that of an insurer. But it is well settled, that the carrier "may, by special contract, limit or qualify his liability as an insurer, or his common-law liability, *** not only touching the risks or accidents for which he is answerable, but also as to the amount of damages for which he will be liable in the event of loss or injury, when the purpose appears to secure a reasonable and just proportion between his liability and his compensation." Railroad Co. v. Little, 71 Ala. 611. When relying on this exemption from liability for loss of goods by fire, delivered to it for carriage, the carrier must show that the goods were destroyed by fire, and that such loss was without fault on its part. Railroad Co. v. Touart, 97 Ala. 514, 11 So. 756. The special plea of the defendant in apt terms sets up the exemption of defendant from his liability as an insurer in the transportation of the freight, and averred that the loss of the goods was not the result of negligence on its part.

4. The defendant introduced a bill of lading it signed for the freight, which contained the clause: "It is mutually agreed, in consideration of the rate of freight hereinafter named, as to each carrier of all or any of said property over all or any portion of said route to destination, *** that every service to be performed hereunder shall be subject to all the conditions on the back of this receipt, which are hereby agreed to by the shipper and by him accepted for himself and his assigns as just and reasonable." (Here follows a description of the freight, with the names of the consignees, "Moss & Mouton, Lafayette, La. Rate, 43c.," and was signed "C. N. Jones, Agent.") On the back of this receipt, under the head of "Conditions," appears among other stipulations, the following: "(1) No carrier or party in possession of all or any of the property herein described, shall be liable for any loss thereon or damage thereto, by causes beyond its control, or by floods or fire, or by quarantine," etc.

The defendant proved that the wagon works had, for its own convenience, its own bills of lading in blank, and made out the one offered in evidence in triplicate and sent them with the car when loaded to the agent to be signed; that the agent signed the three, one was kept by the railroad company, and two were returned to the shippers, one of which they retained, and the other they forwarded to the consignees. The plaintiff objected to the introduction of this receipt, or bill of lading, because it was not signed by the Florence Wagon Works, nor by the plaintiff; and because it was not shown that the plaintiff authorized the Florence Wagon Works to accept a shipping receipt or bill of lading, containing exemptions from liability by fire. These objections were without merit. Made out and accepted as a shipping receipt by them and acted on by them as such, it was not necessary to be binding on them, for them to sign the same, nor to notify the carrier that they had accepted it. Extract Co. v Ryan, 104 Ala. 274, 15 So. 807; Railroad Co. v. Fulgham, 91 Ala, 555, 8 So. 803; 1 Pars. Cont. 492, note 1. They, and not defendant, were necessarily the agents of the consignees for the shipment of the goods, and defendant was bound to ship by their instructions, as it did. What the agreement between them and the consignees was, as to the sale and purchase of the goods, and how they were to be shipped, defendant had no means of knowing, and was not interested or bound to ascertain. A bill of lading given by a carrier on the delivery of the goods to him for transportation,...