Tennessee River Nav. Co. v. Walls

• Decision Date: 20 May 1920
• Docket Number: 8 Div. 252
• Parties: TENNESSEE RIVER NAV. CO. v. WALLS.
• Court: Alabama Supreme Court

85 So. 711

204 Ala. 285

TENNESSEE RIVER NAV. CO. v. WALLS.

8 Div. 252

Supreme Court of Alabama

May 20, 1920

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 ties. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Reversed and remanded.

Street & Bradford, of Guntersville, for appellant.

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

GARDNER J.

Counts 1 and 2 sought recovery of damages for failure to deliver 2,000 cross-ties received by defendant as a common carrier to be delivered to the plaintiff at Gunter's Landing on the Tennessee river for reward. There was no proof to support these counts, and no insistence seems to have been made upon them in the court below, although the affirmative charge was not asked as to these counts separately. For the purposes of this appeal they may therefore be laid out of view.

As we construe counts 3, 4, and 5, they seek recovery as for breach of a special contract entered into by the defendant company with the plaintiff to transport, by its steamboats and barges, cross-ties placed by the plaintiff at the customary landing and stopping place on the Tennessee river to Gunter's Landing, also on said river. These counts, after alleging notice to the defendant's agents or servants that the cross-ties were so placed, allege such agents thereupon agreed with the plaintiff to take up and load the cross-ties so placed upon said steamboats and barges, and to transport the same to Gunter's Landing on the Tennessee river for an agreed compensation, and that the defendant negligently failed and refused to take up and transport said cross-ties and negligently permitted them to be washed away by flood.

There were specific grounds of demurrer addressed to these counts pointing out that the contract is alleged to have been made with the agents of the defendant and fails to aver that the agents mentioned had any authority in the premises. As previously stated, we construe these counts as seeking recovery upon a breach of a special contract, and not upon a breach of the common-law or statutory duty of the defendant as a common carrier. The demurrer was well taken, and should have been sustained. Cooper v. Slaughter, 175 Ala 211, 57 So. 477; Addington v. Am. Casting Co., 186...