Tennessee River Nav. Co. v. Walls, 8 Div. 865.

• Court: Alabama Court of Appeals
• Writing for the Court: [18 Ala.App. 307] SAMFORD, J.
• Citation: 18 Ala.App. 305,92 So. 202
• Parties: TENNESSEE RIVER NAV. CO. v. WALLS.
• Docket Number: 8 Div. 865.
• Decision Date: 15 November 1921

92 So. 202

18 Ala.App. 305

TENNESSEE RIVER NAV. CO. v. WALLS.

8 Div. 865.

Court of Appeals of Alabama

November 15, 1921

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

Action by Seaborn J. Walls against the Tennessee River Navigation Company, for damages for failure to transport certain cross-ties. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Where there was a question for the jury as to the scope of the agency of a steamboat captain, charges seeking to limit his agency were properly refused as abstract.

The following is the complaint:

Count 7. "Plaintiff claims of the defendant $1,500 damages for that *** the defendant was engaged in the transportation of freight on the Tennessee river, between Chattanooga and Decatur, Ala., and intermediate points on said river, and was operating steamboats and barges on said river for transportation of freight as a common carrier, and the plaintiff on or about the time mentioned placed at the customary and usual landing of said steamboats and barges operated by defendant on said river cross-ties or railroad ties, to the number of, to wit, 2,000, and notified defendant through its agents and servants, duly authorized by it in their behalf, that the said cross-ties were so placed at the customary and usual landing, and the defendant, through its agents and servants duly authorized by it in that behalf thereupon agreed with plaintiff to take up and load upon said steamboat and barges the cross-ties so placed at said landing by plaintiff, and to transport the same to Gunter's Landing on the Tennessee river for an agreed compensation to be paid to defendant by plaintiff, and plaintiff avers that at the time of making such agreement, defendant knew that plaintiff was making such agreement for transportation for the purpose of selling said ties to the Nashville, Chattanooga & St. Louis Railroad, at a profit over said cost of ties and transportation, and knew that plaintiff, relying on the transportation of said ties by the defendant, had entered into a contract for the sale of said ties to the Nashville, Chattanooga & St. Louis Railway Company, and that plaintiff had performed a part of said contract. And the plaintiff avers that defendant, with full knowledge of the existence of plaintiff's contract with said railroad company, negligently failed and refused to take up and transport or convey said cross-ties, but negligently permitted them to be washed away by floods to plaintiff's great loss and damage," etc.

Count 8. Same as 7, down to and including the words "at a profit over the cost of said ties and transportation," and concludes as follows: "And that defendant, having notice and full knowledge of plaintiff's purpose and intention to deliver and sell said ties to said railroad company, and to receive said profit in violation of its duty, its contract and agreement to take up and transport said ties, negligently failed and refused to do so, and negligently permitted said ties to be washed away by floods," etc.

Count 9. The same as count 8.

Count 10. This count alleges the facts to show that defendant was a common carrier in the transportation of freight on the Tennessee river between Chattanooga, Tenn., and Decatur, Ala., and the intermediate points on said river, that Gunter's Landing was one of those intermediate points and the regular landing or stopping place for the company's boats; that plaintiff placed 2,000 railroad ties at this point, and notified the defendant's agents, servants, and officers having authority to receive and act upon such notice of the placing of such cross-ties, and of his desire to have them taken up and transported, and thereafter defendant, through its agents and servants, failed and neglected to take up and transport said cross-ties, and they were washed away by floods, by reason of the neglect and failure of the defendant.

Count 11. Alleges the same state of facts, and that the cross-ties were placed at such landing at a proper time and in good shipping condition, of which the defendant had notice by timely and proper notice through its duly authorized agents, and after which notice the defendant failed and refused to take up and transport said cross-ties, whereby the said cross-ties were permitted to and did wash away by floods in said river, and were lost to plaintiff by reason of the negligence and failure of the said defendant to properly take up and transport said ties.

Count 12 was practically the same as count 11.

The following charges were refused to the defendant:

"(2) If Whittaker only agreed to furnish barges, whenever he could get one to transport the plaintiff's ties, and if defendant did this, your verdict should be for the defendant."

"(4) If Capt. Whittaker did not agree absolutely and unconditionally to transport Wall's ties, but if he only agreed to do so whenever he could get a barge, then plaintiff has not proven his case as alleged and your verdict should be for the defendant."

Street & Bradford, of Guntersville, for appellant.

John A. Lusk & Son, of Guntersville, for appellee.

SAMFORD, J.

This is the second appeal in this case. Tenn. R. Nav. Co. v Walls, 204 Ala. 285, 85 So. 711. On that appeal the Supreme Court held that the action was based on a special contract, and as such the complaint was subject to demurrer, in that there was no averment that the agents mentioned had any authority in the making of the contract alleged.

Upon a return of the cause to the court below, the complaint was amended, and issue finally joined on counts 7, 8, 9, 10, 11 12. Counts 7, 8, and 9 claimed damages by reason of the failure of defendant to transport certain cross-ties, which, through its duly authorized agents, it had specifically contracted to do. Of course if defendant, through its duly authorized agents, acting within the scope of their authority, entered into a contract with plaintiff to "take up and load" certain ties placed by plaintiff at the usual landing places of defendant's boat, and defendant failed within a reasonable time to so load and transport such ties according to the terms of the contract, the contract would thereby be breached, and the defendant would be liable to the plaintiff for the damage proximately caused by such breach, unless the plaintiff with due notice of the breach negligently failed to minimize the damage. The special contract declared upon in this respect is not materially different from contracts...