Nashville, C. & St. L. Ry. v. Farrell & Braley

• Decision Date: 23 November 1915
• Docket Number: 8 Div. 341
• Citation: 14 Ala.App. 380,70 So. 986
• Parties: NASHVILLE, C. & ST. L. RY. v. FARRELL & BRALEY.
• Court: Alabama Court of Appeals

70 So. 986

14 Ala.App. 380

NASHVILLE, C. & ST. L. RY. v. FARRELL & BRALEY.

8 Div. 341

Court of Appeals of Alabama

November 23, 1915

Rehearing Denied Jan. 11, 1916

Appeal from Circuit Court, Madison County; D.W. Speake, Judge.

Action by Farrell & Braley against the Nashville, Chattanooga & St Louis Railway. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Spragins & Speake, of Huntsville, for appellant.

Douglass Taylor and Clarence L. Watts, both of Huntsville, for appellees.

THOMAS J.

The complaint as amended contained two counts, one ex contractu and the other ex delicto, as is now authorized by statute. Code, § 5329. The first counted upon a breach by the defendant, as a common carrier, of an express provision of the contract of carriage, and alleged, so far as is material to the consideration of the questions raised on this appeal as follows:

"That on, to wit, the 11th day of March, 1913, the defendant was operating a railroad and engaged in the business of a common carrier, and on said date entered into a contract with plaintiffs to carry 25 mules and one horse, the property of plaintiffs, from Martin, Tenn., to Huntsville Ala., for hire, and by the terms of said contract, and as a part of the consideration thereof, said defendant agreed that said mules and horses were not to be unloaded in Nashville, Tenn., and plaintiffs aver that, in violation of said stipulation in said contract above set out, defendant unloaded said mules and horse at Nashville, Tenn.; that while unloaded there said mules and horse were exposed to pleural pneumonia, a contagious or infectious disease, and four head of said mules contracted said disease and afterwards died from the same."

The second count declared upon the negligence of defendant as a common carrier in violation of an implied duty imposed by law and arising from the relationship of plaintiff and defendant as shipper and carrier, respectively, as shown in the count, which averred, so far as pertinent to the points reserved, as follows:

"That on, to wit, the 11th day of March, 1913, the defendant was operating a railroad and engaged in the business of a common carrier, and on said date accepted from plaintiffs for transportation for hire, from Martin, Tenn., to Huntsville, Ala., 25 mules and 1 horse, the property of plaintiffs. Plaintiffs aver that while said mules were in the possession of said defendant, for transportation as aforesaid, said defendant negligently exposed said animals, or negligently allowed said animals, or some of them, to become exposed to pleural pneumonia, a contagious or infectious disease, and as the result of said exposure 4 of said mules contracted said disease and died of same," etc. Southern Railway Co. v. Proctor, 3 Ala.App. 413, 57 So. 513.

The defendant, which is appellant here, pleaded, in short, by consent, the general issue, with leave to give in evidence as a bar to the action any matter that might be specially pleaded, and at the conclusion of the evidence requested the general affirmative charge, separately and severally as to each count of the complaint, the refusal of the court to give which in each instance constitutes the chief ground of defendant's insistence upon error.

It cannot be doubted that, in order for the plaintiffs to recover under the first count of the complaint, it was incumbent upon them to prove that the contract of carriage contained the stipulation as alleged in said count, since such stipulation is the very basis and gist of the right of action declared on. The plaintiffs insist that the contract of carriage with defendant was a parol one, and that it contained the stipulation mentioned; and, while the evidence offered by plaintiffs tended to show that, on the day before the shipment was made, one of the plaintiffs, Braley, who had purchased the stock for the plaintiffs, at Fulton, Ky., a town 12 miles from Martin, Tenn., went from said town down to Martin, Tenn., where defendant's line of railway commenced, and told defendant's agent that he (Braley) wanted to ship his stock home to Huntsville, Ala., over defendant's line, provided defendant could get them through without stopping them at Nashville, Tenn., and putting them off of the cars at the stockyards there for feeding, watering, and resting, which was defendant's custom as to interstate shipments, followed by it in order to avoid a violation of the United States statutes (Fed.Stat.Anno.Supp.1909), prohibiting under penalty common carriers from confining stock constituting an interstate shipment in cars for a longer period than 36 hours, without putting them off and watering, feeding, and resting them and, while the plaintiff's evidence also tends to show that defendant's said agent then told said Braley that if he (Braley) would wait until the next day, at an hour named, to make the shipment, it could be gotten through to Huntsville over defendant's "Green Line," agreeable to the statutes mentioned, without stopping and putting the stock off at Nashville, yet, the evidence fails to show an acceptance by plaintiff of this proposition made by the defendant's said agent, but shows without dispute that Braley proceeded home to Huntsville, and that the stock were afterwards shipped, not from Martin, Tenn., but from Fulton, Ky., and not by plaintiffs, but by one E.C. Reed, on a through bill of lading issued to him as consignor, not by the defendant, but by the Illinois Central Railroad Company, as initial carrier, and that at Martin, Tenn., the shipment was delivered by said initial carrier to the defendant as connecting carrier, who accepted it on said through bill or lading, which did not contain any stipulation with reference to not putting the stock off at Nashville, and which contained nothing to indicate or apprise defendant or its agents that this was the shipment to which said Braley had reference in his alleged conversation with defendant's said agent, as before mentioned. Under this through bill of lading, the defendant, as connecting carrier, accepted the shipment and transported and delivered the stock to plaintiffs Farrell...