St. Louis & S. F. R. Co. v. Cash Grain Co.

• Decision Date: 10 June 1909
• Citation: 50 So. 81,161 Ala. 332
• Court: Alabama Supreme Court
• Parties: ST. LOUIS & S. F. R. CO. v. CASH GRAIN CO.

50 So. 81

161 Ala. 332

ST. LOUIS & S. F. R. CO. v. CASH GRAIN CO.

Supreme Court of Alabama

June 10, 1909

Appeal from Law and Equity Court, Walker County; T. L. Sowell Judge.

Action by the Cash Grain Company against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff defendant appeals. Affirmed.

Bankhead & Bankhead, for appellant.

Acuff &amp Cooner, Ernest Lacy, and Leith & Gunn, for appellee.

MAYFIELD J.

The appellee sued the appellant, a common carrier, to recover damages as for conveying and delivery of certain goods described in the complaint. One count claimed damages for failure to deliver, one for failure to deliver in good condition, and one for failure to deliver within a reasonable time.

Plea 2 was palpably bad, and was clearly no answer to the third count of the complaint, to which it was addressed. It did not allege or show that the two cars referred to in the plea contained the goods in question, or that the plaintiff was bound by or responsible for the matters set up in the plea. So far as the plea shows, it may have had reference to an entirely different shipment of goods, and to a different contract from the one made the basis of the complaint.

There was ample evidence to support a verdict for plaintiff under either count of the complaint. There was certainly no material variance between the proof and all the counts; hence those charges, which were the general affirmative charges, were properly refused.

The bill of lading contained no provisions sufficient to prevent a recovery under the pleadings and proof in this case. The character and the quality of the goods shipped were known, or could and should have been known to the defendant. It knew that they were not all "canned goods" when they were shipped, but by an agreement it engaged to class the whole lot as such, and thus classified and knowingly billed them out, and collected freight for shipment and delivery as such; hence it should not now be allowed to avoid the contract because of the classification which it made itself, nor to avoid liability for its failure to ship and deliver according to its contract. If any one was at fault in the matter, it was the defendant. A party should not profit by his own fault or wrong.

This court does not know that there is such a difference between the value of the goods in question at Birmingham and that at Jasper as to render evidence of their value at either place inadmissible in determining their value at the other. As was said by this court in the case of Ward v. Reynolds, 32 Ala. 390: "It is possible that two places may be so remote and the markets so diverse that the value at one place would afford no aid to the mind in determining the value at the other. But such does not appear to have been the case here." There is no evidence that tends to show that defendant was injured, or could have been injured, by evidence as to the value of the goods at any place other than that of the destination. As to some of the goods, it might have been necessary to show their value at Birmingham, as a means of proving their value at Jasper. So there is nothing in the objections as to the venue of the proof of value.

As a rule, a witness or a party is not allowed to testify as to his opinion of the amount of damages suffered in consequence of a breach of contract, or of a wrong the basis of the action for damages. Witnesses in this matter, as in most others, can only testify to the facts, and must leave it to the jury to draw the conclusions from the...