St. Louis & S.F. Ry. Co. v. Georgia, F. & A. Ry. Co.

• Decision Date: 26 March 1925
• Docket Number: 6 Div. 119
• Citation: 104 So. 33,213 Ala. 108
• Parties: ST. LOUIS & S.F. RY. CO. v. GEORGIA, F. & A. RY. CO.
• Court: Alabama Supreme Court

104 So. 33

213 Ala. 108

ST. LOUIS & S.F. RY. CO. v. GEORGIA, F. & A. RY. CO.

6 Div. 119

Supreme Court of Alabama

March 26, 1925

Rehearing Denied April 30, 1925

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action in trover by the Georgia, Florida & Alabama Railway Company against the St. Louis & San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Cabaniss Johnston, Cocke & Cabaniss and Sumner E. Thomas, all of Birmingham, for appellant.

Coleman Coleman, Spain & Stewart, of Birmingham, for appellee.

GARDNER J.

The appeal is from a judgment recovered by the appellee against the appellant in an action of trover for the conversion of certain coal tonnage in cars on appellant's railway.

There were numerous counts claiming usual damages on conversion alleging the time as well as the tonnage under videlicet, and other counts of the same character, but claiming punitive damages in addition. The case was tried upon these various counts and defendant's plea of the general issue, in short, by consent. The plaintiff, Georgia, Florida & Alabama Railway Company, is a corporation operating a short line railroad, with its principal office in Bainbridge, Ga. In September, 1920, this company had a contract with the Pratt Consolidated Coal Company at Dora, Ala., for its coal supply for the year beginning July 1, 1920, and ending June 30, 1921, calling for a minimum and maximum quantity of coal to be delivered "in approximately equal daily quantities, excluding Sundays." The price was fixed at $2.93 per ton, "f.o.b. cars at the No. 10 mine of the seller, located in Walker county, Ala.," and to be subsequently paid for. The coal company (to so designate it for brevity) had four mines in operation at or near Dora, Ala., at this time, one of which was the No. 10 mine, above referred to. Plaintiff railway company was dependent solely upon this contract for its supply of coal with which to operate its road. The defendant railway company at the same time had a contract for a minimum and maximum supply of coal with said coal company, to be furnished from any four of the mines at or near Dora, but this contract was not its sole dependency for coal and its road traversed coal territory.

In fulfilling the contract with the plaintiff railway, it was the custom of the coal company to load and weigh the cars at the mine, and have them moved on the tracks of the defendant company to Burgin, near the station, write out the bills of lading showing a consignment of the coal to plaintiff railway company at Bainbridge, Ga., and then carry these bills of lading to defendant's agent for signature.

In September, 1920, it is admitted by the defendant that it confiscated to its own use 15 cars of coal so loaded and consigned to the plaintiff at Bainbridge, and upon some of the bills of lading there was written by the agent the words, "Confiscated for company fuel." As to these 15 cars, defendant paid plaintiff the contract price therefor, and we do not understand that any recovery for these particular cars is here involved. Plaintiff made vigorous protest by letters, telegrams, and personal efforts by its agents who were sent to investigate and remedy the situation, and requested the intercession on its behalf of the Interstate Commerce Commission. Defendant was repeatedly informed of plaintiff's great need, and that, unless defendant permitted the coal company to ship plaintiff coal, the road must cease operation, as only two days supply was on hand. The confiscation of these 15 cars of coal was in violation of the orders of the Interstate Commerce Commission, and such practice of confiscation was unqualifiedly condemned by this court in M. & O.R.R. Co. v. Zimmern, 206 Ala. 37, 89 So. 475, 16 A.L.R. 1352.

Following the numerous protests, to which reference has just been made, defendant company ordered its agents to refuse to sign bills of lading for commercial shipments by the coal company until defendant's order had been protected. It may be here noted that coal to be shipped the plaintiff was not strictly a "commercial shipment," but defendant's agents made no distinction between "commercial shipments" and those to other roads, at least so far as plaintiff's railway was concerned; the evidence disclosing that all shipments of coal were considered "commercial" by defendant except its own fuel.

The coal company had previously joined in plaintiff's protest against defendant's methods, and in some of the correspondence (admitted in evidence without any limitations thereto [Ala. F. & C. Co. v. Ala. Penny Savs. Bk., 200 Ala. 337, 76 So. 103]) it appears defendant was receiving its maximum supply of coal under its contract, and in some instances in excess thereof, though there is testimony to the contrary. But the coal company continued to load and weigh the cars, place them on the tracks, prepare bills of lading consigning the shipment to plaintiff at Bainbridge, Ga., and tender to the agent at Dora for signature. In obedience to the order referred to, however, the agent declined to so sign the bills of lading and so accept the shipment tendered. The witness Randolph, in charge of the shipments as agent of the coal company, testified that defendant took the coal, shipment of which to plaintiff was so tendered, but whether all of this coal was so taken by defendant or a portion thereof diverted by defendant to other roads is not material.

"The fact of conversion does not necessarily import an acquisition of property in the defendant." Howton v. Mathias, 197 Ala. 457, 73 So. 92. Conversion may consist, not only in an appropriation of the property to one's own use, but in its destruction, or in exercising dominion over it in exclusion or defiance of plaintiff's rights. McGill v. Holman, 208 Ala. 9, 93 So. 848, 31 A.L.R. 948; Conner v. Allen, 3 Ala. 515.

The witness Randolph was uncertain as to the exact number of cars so tendered and refused shipment. No record was kept. Nor was he certain as to the days. As to his best recollection, however, the number of cars so tendered by him, and rejected by defendant, in September, 1920, he stated "at least 20, or possibly more," and the period of refusal was between the 10th and 24th of September. As to the tonnage, the average was 45 tons to the car, according to his "best judgment and recollection." The exact number of cars tendered each day he was unable to state, but gave his best recollection as to some days the number so tendered. Much stress is laid upon the indefiniteness of the testimony of this witness.

We have read his testimony with painstaking care, and the conclusion has been reached that it was sufficiently definite, though depending upon recollection, and unsatisfactory, for the consideration of the jury, and that the affirmative charge based upon this theory was properly refused; nor was the testimony of this witness due to be excluded upon this ground. Very clearly, the total number of cars, so rejected was sufficiently stated by the witness as 20, and the dates were alleged under videlicet. Howton v. Mathias, supra.

As we read and understand the brief of learned counsel for appellant, defendant does not rely for defense to this action upon a justification of this practice, admittedly indulged in at the time complained of, but to defeat plaintiff's recovery rests largely upon a failure on the part of plaintiff to show such right and title to the coal so tendered and rejected as will support the action of trover. Defendant insists that under plaintiff's contract title to the coal did not pass until there had been a delivery of the coal to defendant carrier, and possession completely passed out of the seller, and that delivery is not complete until accepted by the carrier, citing 23 R.C.L. p. 1425; 35 Cyc. p. 195; Southern Creosoting Co. v. Whitfield, 130 Miss. 476, 94 So. 452; Hutchinson on Carriers (3d Ed.) § 119; Stapleton v. Ry. Co., 133 Mich. 187, 94 N.W. 739; Denver & R.G.R. Co. v. Peterson, 30 Colo. 77, 69 P. 578, 97 Am.St.Rep. 87; Williston on Sales (2d Ed.) p. 583.

On the other hand, plaintiff insists that, aside from the fact that its contract with the coal company called for delivery of the coal f.o.b. the mines of the coal company, there may be proof of usage and custom as to delivery to the carrier binding on the carrier without actual notice of acceptance, and that the evidence as to such custom was sufficient to make the question of delivery one for the consideration of the jury. Montgomery and Eufaula R. Co. v. Kolb, 73 Ala. 396, 49 Am.Rep. 54. To this end we think the plaintiff was properly permitted to ask the witness Randolph to state his "routine manner of offering the coal" to defendant's agent for shipment. Plaintiff further insists delivery to the carrier is complete when it appears the seller has done all that he is required to do by the usage of business to further the shipment, and it then becomes the duty of the carrier to do what is necessary to put the goods in transitu. 1 Hutchinson on Carriers, § 125; Murphy's Case, 60 Ark. 333, 30 S.W. 419, 46 Am.St.Rep. 202; Southern Ry. Co. v. Johnson, 2 Ga.App. 36, 58 S.E. 333; Nichols v. Smith, 115 Mass. 332.

We are persuaded, however, that, all other considerations aside, the contention of defendant is unsound, and that it overlooks the nature of the action as well, also, the duty of defendant under the undisputed proof, as a common carrier. To support the trover action "the right of property, general or special, and possession, or an immediate right of possession must concur in the plaintiff at the time of the conversion." Johnson v. Wilson, 137 Ala. 468, 34 So. 392; Booker v. Jones, 55 Ala. 266; Elmore v. Simon, 67 Ala. 526; Barker v. Lewis & Co., 118 Am.St.Rep....