Southern Ry. Co. v. Northwestern Fruit Exch.

• Decision Date: 01 November 1923
• Docket Number: 7 Div. 422.
• Citation: 210 Ala. 519,98 So. 382
• Parties: SOUTHERN RY. CO. ET AL. v. NORTHWESTERN FRUIT EXCH.
• Court: Alabama Supreme Court

98 So. 382

210 Ala. 519

SOUTHERN RY. CO. ET AL. v. NORTHWESTERN FRUIT EXCH.

7 Div. 422.

Supreme Court of Alabama

November 1, 1923

Rehearing Denied Dec. 22, 1923.

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Action for damages by the Northwestern Fruit Exchange, suing for the use of John T. Morgan, doing business under the name and style of the Stamps & Co., against the Southern Railway Company, Alabama Great Southern Railroad Company and James C Davis, Agent, etc. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under Acts 1911, p 449, § 6. Affirmed.

Goodhue & Goodhue, of Gadsden, for appellants.

Dortch Allen & Dortch, of Gadsden, for appellee.

MILLER J.

The Northwestern Fruit Exchange, a corporation, suing for the use and benefit of John T. Morgan, doing business under the name of Stamps & Co., brings this action against James C. Davis, as Agent, under section 206 of the Transportation Act of Congress (U. S. Comp. St. Ann. Supp. 1923, § 10071 1/4cc), the Southern Railway Company, a corporation, and the Alabama Great Southern Railroad Company, a corporation. The suit is brought on a bill of lading issued by Walker D. Hines, as Director General of Railroads, for a car of apples received at Zillah, Wash., for shipment as common carrier for a reward on February 17, 1920, to be delivered to plaintiff at Gadsden, Ala. The car was handled by the Southern Railway Company and the Alabama Great Southern Railroad Company in March, 1920, after the termination of federal control as connecting or terminal carriers.

The complaint is for breach of the agreement, and avers the apples were received in good condition by Walker D. Hines, as Director General, etc.; that about 198 boxes were so damaged when delivered in March, 1920, to the plaintiff at Gadsden, Ala., that they were unfit for use and worthless.

The suit was originally brought in the name of John T. Morgan, doing business under the name and style of Stamps & Co., as plaintiff. It was amended by plaintiff, with approval of the court, over objections of the defendants, to read as follows as to party plaintiff:

"Northwestern Fruit Exchange, a corporation, suing for the use and benefit of John T. Morgan, doing business under the name and style of Stamps & Co."

The court did not err in allowing this amendment. It is permissible under our statute. It did not work an entire change of parties plaintiff. John T. Morgan, the original and sole plaintiff, was after the allowance of the amendment, the real party plaintiff. Section 5367, Code 1907; Babcock v. Carter, 117 Ala. 575, 23 So. 487, 67 Am. St. Rep. 193; Cowan v. Campbell, 131 Ala. 211, 31 So. 429; N. C. & S. L. R. Co. v. Abramson-Boone Co., 199 Ala. 271, 74 So. 350; L. & N. R. Co. v. Sarris & Collas, 209 Ala. 217, 95 So. 903.

There are three counts in the complaint: The first count (No. 1) was withdrawn; the other two, numbered respectively 2 and 3, were submitted to the jury. The defendants demurred to each of these counts, and they were overruled by the court. In these rulings the court committed no error. These counts follow substantially the Code form, No. 15, p. 1197, Code 1907, vol. 2, for suit on bill of lading against a common carrier, except there are some averments showing two of the defendants are connecting carriers, and some averments showing the car of apples was received by Walker D. Hines, as Director General, etc., during federal control, and was delivered by the other defendants in March, 1920, to plaintiff after termination of federal control.

When the car of apples was received by the Director General of Railroads on February 17, 1920, the railroads were under federal control. The possession, operation, and control of the railroads was relinquished by the President of the United States at 12:01 a. m. March 1, 1920, under an Act of Congress approved February 28, 1920, 41 Public Laws of U.S. Statute at L. p. 457, pt. 1 (U. S. Comp. St. Ann. Supp. 1923, § 10071 1/4aa). At 12:01 a. m. March 1, 1920 the different railroad corporations regained, under this act of Congress, possession and control of their respective railroads, and each of them became responsible for the operation of its road as a carrier.

Each count avers facts showing that the Director General received the car of apples in good condition as a common carrier to be delivered to plaintiff at Gadsden, Ala., for a reward during federal control, and that the other defendants received the car of apples as connecting carriers after the termination of federal control, to be delivered for a reward to the plaintiff, and the car of apples was not delivered by the defendants in good condition, but that about 198 boxes of the apples were damaged, in worthless condition, when delivered to plaintiff at Gadsden, Ala. These counts follow practically the form of count 2 in the case of Walter v. A. G. S. R. Co., 142 Ala. 474, 39 So. 87, which was approved by this court. These counts aver that Walker D. Hines as Director General received the apples in good condition, and they were delivered in bad condition to the consignee, the plaintiff. This burden of averment and proof is on the plaintiff. It was not necessary for the counts to aver that the car of apples was received by each defendant, including the connecting carriers, in good condition. It was only necessary for the counts to aver the initial carrier received them in good condition, and that they were delivered to plaintiff in a damaged condition. See count 2 and demurrers to it in Walter v. A. G. S. R. Co., 142 Ala. 474, 39 South 87.

In Montgomery & W. P. R. Co. v. Moore, 51 Ala. 396, this court wrote:

"When a common carrier delivers goods in a damaged or injured condition, and it does not appear he received them in such condition, the law casts upon him the burden of proving that they were in that condition when he received them, or that the injury occurred by the act of God, or of a public enemy, without fault on his part."

The burden of averment was then on the connecting or delivering carriers to plead respectively that it received the car of apples in the condition in which it has delivered them. If this averment was sustained by proof, it would relieve them (the connecting or delivering carriers) from liability for the damage.

In a case similar in many respects to this one, the Supreme Court of the United States in C. & N.W. Ry. Co. v. Whitnack, 258 U.S. 369, 42 S.Ct. 328, 66 L.Ed. 665, quoted with approval the rule in section 1348, Hutchinson on Carriers (3d Ed.) as follows:

"A connecting carrier, who has completed the transportation, and delivered the goods to the consignee in a damaged condition or deficient in quantity, will be held liable in an action for the damage or deficiency, without proof that it was occasioned by his fault, unless he can show that he received them in the condition in which he has delivered them. The condition and quantity of the goods when they were delivered to the first of the connecting carriers being shown, the presumption will arise that they continued in that condition down to the time of their delivery to the carrier, completing the transportation, and making the delivery to the consignee, and that the injury or loss occurred while they were in his possession."

This Court referring to the Carmack Amendment (U. S. Comp. St. §§ 8604a, 8604aa) in L. & N. R. Co. v. Lynne, 196 Ala. 23, 71 So. 340, said:

"That act makes the initial carrier responsible for the safe delivery of shipments over connecting lines, no matter where the loss may occur, but it certainly does not exempt connecting lines from direct responsibility to the owner for their own failure to safely carry and deliver goods received by them for that purpose."

Under the averments of these counts all of the defendants are liable to the plaintiff for the damages to the apples; but either or both of the connecting carriers may be relieved of liability by separate plea and proof that the apples were received by it in the same condition in which they were delivered by it to the consignee or to the other connecting carrier. The proof of these facts is peculiarly within their possession and control, and for this reason the burden of averment and proof to sustain it is placed on them.

The plaintiff does not aver in count 3 a joint contract by the three defendants, but relies for recovery upon one of the terms of the agreement, which is binding upon all of the defendants, who are either the original party to the agreement or connecting carriers participating in the transportation of this car of apples from the point of origin to the destination and delivery of the apples to the consignee. 4 R. C. L. 947, § 404; T. & P. Ry. Co. v. Leatherwood, 250 U.S. 478, 39 S.Ct. 517, 63 L.Ed. 1096; Ga. F. & A. Ry. v. Milling Co., 241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948; Mo. K. & T. R. Co. v. Ward, 244 U.S. 383, 37 S.Ct. 617, 61 L.Ed. 1213. See, also, section 5548, Code 1907, as to joint action against connecting lines of common carriers engaged in this state.

Count 3 also contains the following averment:

"Plaintiff avers that shipment was made under what is called 'option No. 2,' whereby all liability for damage from frost, freezing, or overheating was assumed by the carrier, and for the assumption of this liability on the part of the carrier plaintiff paid the sum of $18. Plaintiff further avers that said apples were damaged from frost, freezing, or overheating, and defendants were therefore liable therefor."

This averment did not render this count subject to the demurrers; and the demurrers to counts 2 and 3 were properly overruled by the court.

The defendants aver specially in plea 4 that these counts (2 and 3) set up shipment on a bill of...