Nashville, C. & St. L. Ry. Co. v. Winters Bros.

• Court: Alabama Court of Appeals
• Writing for the Court: SAMFORD, J.
• Citation: Nashville, C. & St. L. Ry. Co. v. Winters Bros., 135 So. 403, 24 Ala.App. 342 (Ala. App. 1931)
• Decision Date: 09 June 1931
• Docket Number: 8 Div. 280.
• Parties: NASHVILLE, C. & ST. L. RY. CO. v. WINTERS BROS.

135 So. 403

24 Ala.App. 342

NASHVILLE, C. & ST. L. RY. CO. v. WINTERS BROS.

8 Div. 280.

Court of Appeals of Alabama

June 9, 1931

Appeal from Circuit Court, Jackson County; A. E. Hawkins, Judge.

Action to recover freight and demurrage charges by the Nashville Chattanooga & St. Louis Railway Company against Winters Brothers, a partnership composed of A. E. and J. M. Winters. From a judgment for defendants, plaintiff appeals.

Reversed and remanded.

D. P. Wimberly, of Scottsboro, for appellant.

Proctor & Snodgrass, of Scottsboro, for appellee.

SAMFORD J.

The case is fairly stated in appellant's brief as follows:

"This is an action brought by the appellant in the Court below to recover for freight and demurrage on a car of rough pine lumber shipped by appellee from Long Island, Ala., to Buchannon Bros., Nashville, Tennessee.

"Said car of rough pine lumber was transported over appellant's lines the entire distance, and the consignees were notified of the arrival of said shipment on Jan. 31, 1929, and that they gave notice of their refusal of the same on Feb. 6, 1929. Thereafter, within twenty-four hours after receiving notice of consignees' refusal to accept said car of lumber appellant sent notice of such refusal by wire to the agent at the point of shipment, and that Winters Bros. were notified on Feb. 8, 1929, by letter of the refusal and were requested to give disposition of car quickly as possible.

"Appellant continued to request for disposition of the car of lumber from the consignors and appellees but were unable to obtain the same, and after giving notice by publication, as set forth in the agreed statement of facts, said car of lumber was sold for a sum less than the agreed freight and demurrage charges. The appellees pleaded the general issue and payment; there were no special pleadings except the appellant on March 20, 1930, filed a request in writing for a special finding of facts under Section 9500 of the Code of Alabama, 1923.

"This cause was submitted to the Court without the intervention of a jury upon an agreed statement of facts.

"The Court on Sept. 12, 1930, rendered a judgment in favor of the appellees.

"The appellant on Sept. 16, 1930, filed a motion to set aside the judgment.

"The Court on Sept. 23, 1930, overruled the motion to set aside the judgment and appellant excepted to said rulings."

In addition to the above it is agreed that: "Under the tariff laws of the I. C. C. there was given the consignor and consignee two days after notice of arrival in which to unload said shipment; that after the expiration of said two days, lawful demurrage charges commenced, which are as follows: For each of the first four days $2.00; for each succeeding day $5.00 and during the period in which the car was retained by the plaintiff the demurrage charges amounted to $343.00." There is no dispute as to the amount of freight and demurrage, provided plaintiff is entitled to recover.

Appellant in his brief expressly waives assignments of error 1 and 3, which leaves as the only question the judgment rendered by the court in favor of defendant.

The only contentions of appellee in brief, are (1) that the defendant (consignor) was not notified by wire as is required by national car and demurrage rules and charges, section E (1), which requires: "When carload freight is refused at destination, notice of such refusal shall, within 24 hours thereafter, be sent by wire to consignor, when known, at his expense, or when not known, to agent at point of shipment, who shall be required to notify the shipper, if known." (2) That plaintiff delayed an unreasonable time in making sale under the contract of shipment.

As to the first of these contentions, it appears that the defendant's place of business was in a rural community with no telegraphic communications, and that plaintiff did within twenty-four hours notify by wire the agent at the point of shipment as follows: "Your weigh bill No. 10, January 30th, car. N. C. & St. L. No. 10,123, here refused. Have shipper advise disposition." The agent on February 8th notified defendant of the rejection which occurred February 6th.

Being an interstate shipment, the same is governed by federal statutes and rules of the Interstate...