Southern Ry. Co. v. Proctor

• Decision Date: 19 December 1911
• Citation: 3 Ala.App. 413,57 So. 513
• Parties: SOUTHERN RY. CO. v. PROCTOR.
• Court: Alabama Court of Appeals

57 So. 513

3 Ala.App. 413

SOUTHERN RY. CO. v. PROCTOR.

Court of Appeals of Alabama

December 19, 1911

Rehearing Denied Jan. 30, 1912.

Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.

Action by R. F. Proctor against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint as amended was as follows: "(A) Plaintiff claims of the defendant $150.00 damages for injury to one car load of cattle shipped by the defendant as a common carrier for hire for the plaintiff from Scottsboro, Ala., to Atlanta in the state of Georgia, on or about the 8th day of July 1907. Plaintiff avers that the defendant failed to deliver such car load of cattle to the consignee within a reasonable time, and by reason of such delay said cattle were injured to the plaintiff's damage as aforesaid. (B) Plaintiff claims of the defendant the further sum of $150.00 as damages for this: On or about the 8th day of July, 1907, the plaintiff delivered to the defendant as a common carrier one car load of cattle to be shipped within a reasonable time for hire to Atlanta, in the state of Georgia, and delivered to Shippey Bros. & White, stock commission merchants, and the defendant failed to deliver said cattle to said Shippey Bros & White within a reasonable time, and by reason of such failure said cattle suffered from rough handling and for want of food and water, and were injured, to plaintiff's damage as aforesaid." Demurrers raised the questions discussed in the opinion.

The eleventh interrogatory was as follows: "What did you do with the cattle? Did you put them on the market; and, if so, when? Were they in condition to be put on the market, and, if not, how long did you keep them before they were in such condition?" The answer is: "We sold said cattle after keeping them and watering them and feeding them two or three days. They were not in any condition to sell on arrival; one party refusing to buy them at any price when offered for sale." Interrogatory 12 is as follows: "What was the extent or value of the injury to said cattle, or what was the difference between the value of said cattle in the condition they were when received by you and the ordinary condition of such cattle shipped the distance from Scottsboro, Ala., to Atlanta, Ga., properly handled and cared for on the road?" The answer was: "When we first received the cattle, they looked to be almost valueless; but, after feeding and watering them for two days, I decided that from one-half to three-quarters of a cent per pound would cover the damages. Under ordinary circumstances, cattle shipped from Scottsboro, Ala., to Atlanta, Ga., properly handled and cared for while on the road, would be ready for market on arrival."

The following charges were refused to the defendant: (2) "If the damage to cattle arose from want of feed and water during the shipment, the defendant is not liable therefor, if it is shown that the shipper did not feed and water them, or request the company to do so." (3) "If the jury believe from the evidence that the damage complained of arose from a want of food and water by the cattle after they were left on the side track in Atlanta, the defendant is not liable therefor." (8) "If the jury believe from the evidence that the plaintiff failed to give written notice of the claim for damages to any agent of the defendant before said cattle were removed from the place of delivery, and before said cattle were mingled with other live stock, they must find for the defendant." (9) "If the jury believe from the evidence that the failure of the plaintiff or his agent to accompany the cattle proximately contributed, on account of the want of attention, to the injury to the cattle, in that event the defendant is not liable, even though the jury believe from the evidence that the cattle were injured." (10) "Under the evidence in this case, the fact, if it be a fact, that the arrival of the cattle was unduly delayed, and that the cattle suffered injury from a failure to feed and water them during the delay, will not entitle the plaintiff to recover for any damage growing out of such failure to feed and water the cattle."

Lawrence E. Brown, for appellant.

John B. Tally, for appellee.

WALKER P.J.

It fairly appears from the averments of count A of the complaint as amended that the shipment of cattle mentioned was for the plaintiff, that the defendant as a common carrier undertook for hire the carriage of the property for the plaintiff. In count B the consignors were described as stock commission merchants. We are of opinion that each of those counts sufficiently shows that the defendant as a common carrier assumed the duties of that relation to the plaintiff as a person interested in the goods shipped.

The averments of each of those counts as to the defendant's breach of its duty as carrier substantially followed in this respect the form of complaint prescribed by the Code for an action against a carrier for failure to deliver property shipped within a reasonable time. Code 1907, § 5382, form 15.

The consignor may maintain such a claim, though the goods were consigned to another, as the presumption that the consignee has title to the goods shipped is merely prima facie, and may be overcome by proof. The court was not in error in overruling the demurrer to the complaint as amended. Louisville & Nashville R. Co. v. Allgood, 113 Ala. 163, 20 So. 986.

The appellant is in no position to complain of the admission of evidence as to the place and hours of making deliveries of cattle shipped to the consignees. By cross-interrogatories propounded to witnesses for the plaintiff whose testimony was taken by deposition and by direct interrogatories propounded to its own witnesses it sought proof on the same subject. And it may be added that the proof elicited by the question objected to was not at variance with the state of facts sought to be established by the defendant itself.

It is a matter of common knowledge that the effects of depriving animals of food and water for an unwonted time are manifested in their appearance. It was competent for the plaintiff to show that his cattle were injured in this way in consequence of an unreasonable delay in their arrival at the place of destination. Of necessity the principal available proof in this connection was evidence as to the appearance and condition of the cattle. The plaintiff sought to elicit proof on this subject by the question propounded to several of his witnesses: "State whether or not from your observation and experience in your judgment said cattle were suffering for food and water." This question was objected to because it called for the opinion or conclusion of the witness. Under a recognized modification of the general rule against admitting in evidence the opinions of ordinary witnesses, their conclusions as to the appearance of persons, animals, or things may be...