Southern Ry. Co. v. Webb

• Decision Date: 19 April 1905
• Citation: 143 Ala. 304,39 So. 262
• Parties: SOUTHERN RY. CO. v. WEBB. WEBB v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

39 So. 262

143 Ala. 304

SOUTHERN RY. CO. v. WEBB.

WEBB v. SOUTHERN RY. CO.

Supreme Court of Alabama

April 19, 1905

Appeal from Circuit Court, Jackson County; J. A. Bilbro, Judge.

Action by L. T. Webb against the Southern Railway Company for breach of a contract for the transportation of hogs. From a judgment in favor of plaintiff for less than the relief demanded, both parties appeal. Reversed.

The complaint contained two counts. The first count was in the Code form against a common carrier upon a bill of lading. The second count sought to recover damages for special breaches of the contract of affreightment by reason of the defendant failing to deliver the car load of hogs shipped to the consignees. The damages claimed are sufficiently shown in the opinion. The defendant pleaded the general issue and several special pleas. The second special plea was in words and figures as follows: "It did not contract with plaintiff in the manner and form as alleged." The third, fourth and fifth special pleas set up the fact that the plaintiff did not keep and perform the stipulation of said contract mentioned in count 2, in that he failed to unload said hogs and failed to ride on the same freight train, and that he did not give notice in writing of his claim as required by said contract. The sixth special plea set up that on the day of the shipment plaintiff's agent, one Robinson, modified the contract of affreightment by directing that said hogs should be shipped to Askew & Mixon, care of Union Stockyards and that there was endorsed on the waybill by defendant's agent the fact that they were so shipped.

The contract of affreightment, which was introduced in evidence contained the following stipulations: "And it is further agreed that the owner and shipper, or his agent or agents in charge of stock, shall ride upon the freight train on which the stock is transported, and that he does assume and release said railroad companies from all risk of personal injury while upon or about the train of the companies. And it is further agreed that, should damages occur for which the companies may be liable, the value at the place and date of shipment shall govern the settlement, in which the amount claimed shall not exceed, * * * for hogs, $5.00 each. And it is further agreed that, as a condition precedent to the right of the owner and shipper to recover any damage for any loss or injury to said live stock, he will give notice in writing of his claim therefor to the agent of the railroad company actually delivering said stock to him, whether at the point of destination or at any intermediate point where the same may be actually delivered, before said stock is removed from the place of destination above mentioned, and before said stock is intermingled with the other stock." Against the objection and exception of the defendant the plaintiff introduced evidence tending to show that, before he could obtain possession of the car load of hogs, which had been delivered to the Brady Union Stockyards, he was required to pay to said stockyards the sum of $73.62, which was the feed bill charged by said stockyards for feeding the hogs after their delivery; that it was necessary for him to make a special trip to Atlanta, the expenses of which were shown and that there was considerable loss in the weight of the hogs during their detention. The other facts in the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Among other charges requested by the defendant, to the court's refusal to give each of which the defendant separately excepted, was the general affirmative charge in favor of the defendant. The court, in its oral charge to the jury, instructed them in effect that the plaintiff was entitled to recover the amount paid to the Brady Union Stockyards and the expenses of his trip to Atlanta, and the amount or value of the loss in weight of the hogs between the time they should have been delivered to Askew & Mixon and the time they were received by the plaintiff, based on Paint Rock market. To this portion of the court's oral charge, the defendant separately excepted. The court in its oral charge also instructed the jury that plaintiff could not recover anything on account of the fall in price of hogs in Atlanta, and that under the contract the recovery must be based on the price of hogs at Paint Rock, Ala., and it appeared from the evidence that there had been no depreciation in the market value of hogs at Paint Rock. To this portion of the court's oral charge to the jury the plaintiff separately excepted.

There were verdict and judgment in favor of the plaintiff, assessing his damages at $120.26. The defendant made a motion for a new trial upon the grounds that the verdict of the jury was excessive and was contrary to the evidence. This motion was overruled, and the defendant duly excepted. The defendant appealed, and assigned as error the several rulings of the trial court to which it reserved exceptions. The plaintiff prosecuted a cross- appeal, and assigned as error the refusal of the court to admit the testimony as to the depreciation in market value of hogs at Atlanta between the time the said hogs were delivered to the Brady Union Stockyards and the time that they were received from the plaintiff, and that part of the court's oral charge which instructed the jury that the plaintiff was not entitled to recover the difference in the market value of the hogs between said times.

TYSON J.

This action is for the recovery of damages for the breach of contract of affreightment for a car of hogs received by defendant at Paint Rock, in this state, to be transported by it to Atlanta, Ga. and there delivered by it to Askew & Mixon, to whom it is alleged the hogs were consigned as plaintiff's agents. The special breach alleged in the second count of the complaint is that the defendant failed to deliver the hogs to the consignees, but delivered them to another and different person, to wit, Brady Union Stockyards. The damages sought to be recovered under this count were charges, amounting to $73.62, exacted by the Brady Union Stockyards of plaintiff before he could regain possession of his hogs, the loss in the weight of the hogs, and the decline in their market price during their detention, expenses incurred by plaintiff in making a trip to Atlanta to regain their possession, and counsel fees for bringing this action. The trial court, it appears, allowed a recovery of all these damages, except for counsel fees and a decline in the market price of the hogs.

It is first insisted by the railway company that under the contract of affreightment, which is in writing, no recovery can or ought to be allowed, and therefore the affirmative charge requested by it should have been given. Preliminary to a discussion of this question, it may be well to say that the evidence tends to support each claim for damages which the plaintiff was permitted to recover, and, as we will show later on, a breach of the contract. The case of N. C. &amp St. L. Ry. Co. v. Parker, 123 Ala. 683, 27 So. 323, is relied upon as authority in support of the contention...