Southern Express Co. v. Saks

• Decision Date: 29 April 1909
• Citation: 160 Ala. 621,49 So. 392
• Parties: SOUTHERN EXPRESS CO. v. SAKS.
• Court: Alabama Supreme Court

49 So. 392

160 Ala. 621

SOUTHERN EXPRESS CO. v. SAKS.

Supreme Court of Alabama

April 29, 1909

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by Louis Saks against the Southern Express Company. From a judgment for plaintiff, defendant appeals. Reversed, and cause remanded.

London & London, for appellant.

Frank S. White & Sons, for appellee.

McCLELLAN J.

As a matter of substantive law, it is settled in this state that in the absence of special contract or the existence of a relation of partnership or agency between an initial and a connecting carrier, a connecting carrier is liable only for loss or damage occurring on its own line. M. R. R. v Moore, 51 Ala. 394; Ellsworth v. Tartt, 26 Ala 733, 62 Am. Dec. 749; K. C., M. & B. R. R. v. Foster, 134 Ala. 244, 32 So. 773, 92 Am. St. Rep. 25.

Four packages of cloaks were delivered by a dealer in New York City to an agent of the Adams Express Company for transportation to the appellee, Saks, at Birmingham; the agent giving the dealer a receipt therefor in which the destination of the packages was indicated. We assume, on the proof, that the packages never reached the consignee. There was, as we understand the bill, no evidence that these packages were delivered by the Adams Company to the Southern Express Company. Aside from the relations of agency or partnership asserted by appellee to have existed between these carriers, the primary inquiry is: Was the burden of proof on the appellee to show that these packages came into the custody of the appellant? Or, delivery to the Adams Company having been made, was the burden of proof then on the appellant, last carrier, to refute the presumption thereupon alleged to have arisen by showing that the goods were not delivered to it, never came to its custody?

The rule is that, in an action against the last carrier for loss of or damage to goods, the burden of proof is on the plaintiff to establish the receipt of the goods by the carrier sued, unless a relation of agency or partnership or special contract affected, as before indicated, the status. 6 Am. & Eng. Ency. Law, pp. 625, 653, and note; C., B. & Q. R. R. v. Goldman, 46 Ill.App. 625; 3 Hutch. Carriers, § 1347, and note; Texas & N. O. R. R. v. Berry, 31 Tex.Civ.App. 3, 71 S.W. 326. Other authorities might be added. Where there is a partial delivery of the consignment by the last carrier, and that carrier is sued, the presumption of receipt by it of the goods in the same condition as when delivered to the initial carrier affects to cast on the defending carrier the burden to exculpate itself by showing that the loss or damage did not occur while the goods were in its custody. Southern Ry. Co. v. Hess, 53 Ala. 19; 3 Hutchinson, supra; C., B. & Q. R. R. v. Goldman, supra; Texas & N. O. R. R. v. Berry, supra. These rules are necessarily sound as a consequence of the substantive law first above announced. It would be egregiously illogical to maintain the doctrine of the substantive law and yet relieve the plaintiff, in case of a total failure to deliver, of the primary obligation to trace his totally lost shipment into the custody of the last carrier, whom he sues, unless the responsibility or liability of the defending carrier was altered by special contract or by the relations described. Where there is a partial delivery to the consignee, the presumption mentioned aids the plaintiff to the extent of casting the onus stated on the last carrier sued. Such is the ruling of the Hess Case. There the delivery to the consignee was of a part of the consignment, and on the proof of such delivery the presumption prevailed to shift the burden to the defendant, if it would escape liability, to exculpate itself as indicated. There being no evidence of the receipt of these packages by the appellant, it results that this plaintiff cannot recover in the present state of the evidence unless the defined conditions to a different responsibility in the premises were shown. There is no insistence that a special contract existed so as to thus operate. Was there shown a relation of agency or partnership between these carriers in respect of this consignment?

We will state the evidence: The Southern Express Company was the only carrier of that character serving the city of Birmingham. Saks was, at the time in question, a large patron of the Southern Company. The connecting points, for the city of Birmingham, between the Adams Company and the Southern Company for shipments from New York City to Birmingham, were Nashville, Tenn., and Washington, D. C. The course of business between the companies was for the Adams Company to accept, for transportation from New York City to Birmingham articles or packages, to bill them through, to deliver them at one of the connecting points mentioned to the Southern Company, and for the service one charge was exacted. The charge paid at New York, or, collected at Birmingham, was apportioned between the carriers in proportion to the mileage over which the consignment was carried by the respective companies. Accordingly, it was to the interest of the Southern Company to have consignments routed for delivery, by the Adams Company, to it at Washington, a point more remote than Nashville from Birmingham. On the other hand, a like interest was that of the Adams Company to route consignments via Nashville; and it may be reasonably...