Walter v. Alabama Great Southern R. Co.

• Decision Date: 09 February 1905
• Citation: 142 Ala. 474,39 So. 87
• Parties: WALTER v. ALABAMA GREAT SOUTHERN R. CO.
• Court: Alabama Supreme Court

39 So. 87

142 Ala. 474

WALTER v. ALABAMA GREAT SOUTHERN R. CO.

Supreme Court of Alabama

February 9, 1905

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by William D. Walter against the Alabama Great Southern Railroad Company for loss and injury to freight shipped. From a judgment in favor of defendant, plaintiff appeals. Reversed.

The complaint originally filed contained only one count, which was in words and figures as follows: "(1) The plaintiff claims of the defendant the sum of $1,000 damages, for that whereas, on, to wit, the 19th day of October, 1901, the plaintiff delivered to New York Central & Hudson River Railroad Company, at Syracuse, in the state of New York, a lot of household goods, to be carried to Ensley, Ala., and there delivered to the plaintiff. Said household goods were delivered to and received by the defendant, and by the defendant carried to said Ensley. The defendant received said household goods as a common carrier, and as a connecting carrier on the route between said Syracuse and said Ensley to be delivered to the plaintiff at said Ensley for reward. Said defendant did not safely carry and deliver said household goods, as it was its duty to do, but on the contrary, conducted itself so carelessly in and about carrying, transporting, and delivering the same that said household goods were damaged, broken, destroyed, injured, and rendered valueless to the plaintiff, to the damage of the plaintiff and in the sum of $1,000, which amount to recover he brings this suit." The complaint was amended by adding two other counts, which were in words and figures as follows: "(2) The plaintiff claims of the defendant the sum of $1,000 as damages, for that on, to wit, the 19th day of October, 1901, the defendant was a common carrier, and defendant has ever since said date been such common carrier and that on, to wit, the said 19th day of October, 1901, the plaintiff delivered to the New York Central & Hudson River Railroad Company, at Syracuse, in the state of New York, a lot of household goods, to be carried to Ensley, Ala., and there delivered to plaintiff, and the defendant, as a common carrier aforesaid, operating a connecting line of railway on the route from Syracuse, N. Y., to Ensley, Ala., received the said goods, and undertook to deliver the same to the plaintiff at Ensley, Ala., for a reward. And the plaintiff avers that the defendant did not deliver said goods to the plaintiff in good or proper condition, or in the condition they were in when received by it, but that said goods, when delivered to plaintiff, were badly broken, injured, and damaged, and a large part thereof rendered wholly unfit for use, and the plaintiff was damaged thereby to the amount above claimed."

To the second count of the complaint the defendant demurred upon the following grounds: "(1) Said count does not aver or show that the goods of the plaintiff were in good condition when delivered to the New York Central & Hudson River Railroad Company. (2) Said count does not aver or show that the goods of the plaintiff were in good condition when received by the defendant as a connecting or delivering carrier. (3) Said count does not aver or show that the goods were injured or damaged or broken while in possession or under the control of the defendant. (4) Said count does not aver or show that defendant, or any of its agents or servants, in any way injured or damaged the goods of plaintiff." These demurrers were sustained.

The defendant pleaded the general issue, and assigned special pleas numbered 3 and 4. The substance of the third plea, as originally filed and as amended, is sufficiently shown in the opinion. The fourth plea, as amended was in words and figures as follows: "(4) That the car in which the plaintiff's goods were transported was received by the defendant from the Southern Railway Company at Chattanooga in the state of Tennessee, closed and sealed, and remained closed and sealed from the time of its reception to the time of its delivery to the plaintiff at Ensley; and the defendant avers that the contents of said car could not be seen by the defendant without its breaking the seal and opening the car; and the defendant further avers that the condition of the contents of said car was not visible to this defendant, or its agent, when so received by it from the Southern Railway Company, and that the defendant hauled said car load of goods from the said Chattanooga, Tenn., to the city of Birmingham, in the same condition in which it received said goods, and delivered the same to the plaintiff, or a connecting carrier, at said Birmingham, in such condition, and that, if said goods were damaged as alleged in said complaint, it was not through the fault or negligence of this defendant or its servants."

To the third plea, as amended, the plaintiff filed demurrers, among others, the following: "(1) The negligence of plaintiff, contributing to the injury to said goods, does not relieve the defendant from liability for the injury thereto. (2) The defendant does not show or aver that it was not guilty of negligence in handling or caring for said goods, or that it was without fault. (3) The defendant in said plea does not show or allege that the breaking of and injury to said goods were caused solely by the improper loading thereof. (4) The defendant in said plea does not show or allege that the receiving carrier did not know, or could not have known, that the said goods were improperly loaded when it received the same." The demurrers to the third and fourth pleas, as amended, respectively, were separately and severally overruled.

The other facts of the case are sufficiently stated in the opinion.

The plaintiff requested the court to give to the jury the following written charge, and severally and separately excepted to the court's refusal to give each of them as asked: "(1) The court instructs the jury that, if they believe the evidence in this case, they must find a verdict for the plaintiff. (2) If the plaintiff is entitled to recover in this action, he is entitled to recover for injury to all the goods consigned to him, whether all the said goods belonged to him or not. (3) The court instructs the jury that, if they find for the plaintiff in this case, they may award the plaintiff damages for injury to all the goods consigned to him, although some of the said goods may have belonged to the plaintiff's wife. (4) The court instructs the jury that the plaintiff is entitled to recover in this action, unless they find from the evidence that the defendant delivered the said car load of goods to another connecting carrier, and ceased from that time to exercise all jurisdiction or control over the said car load of goods, before the delivery of the said car load of goods to the plaintiff."

At the request of the defendant the court gave the general affirmative charge in its favor, and to the giving of this charge the plaintiff duly excepted.

Frank Deedmeyer and James A. Mitchell, for appellant.

A. G. & E. D. Smith, for appellee.

DENSON J.

The complaint in this case, when filed, contained only one count. By leave of the court the plaintiff amended the complaint by adding a second count. The second count is substantially in the form prescribed by Code 1896, p. 946, No. 15, for suit against a common carrier on a bill of lading, with some additional averments made necessary by the suit having been brought against the defendant as a connecting carrier. The demurrer to this count was improperly sustained. McCarthy & Baldwin v. L. & N. R. R. Co., 102 Ala. 193, 14 So. 370, 48 Am. St. Rep. 29; L. & N. R. R. Co. v. Landers, 135 Ala. 504, 33 So. 482. After demurrers were sustained to count 2, the complaint was amended by adding count 3. The case was tried on counts 1 and 3. To these counts the defendant pleaded the general issue and two special pleas, numbered 3 and 4. The plaintiff demurred to the special pleas, the court sustained the demurrers, the defendant amended the pleas, and the court then overruled the demurrers.

Plea 3 as originally written, sought to set up contributory negligence on the part of the plaintiff, in that the goods were improperly loaded on the car of the initial carrier by the plaintiff or his agent. That, under contracts of carriage such as are averred in the first and second counts of the complaint, contributory negligence on the part of the shipper is not available as a defense, has been fully and clearly settled by this court. McCarthy & Baldwin v. L. & N. R. Co., 102 Ala. 193, 14 So. 370, 48 Am. St. Rep. 29. The defendant's amendment to plea 3 was made by adding at the end of it these words: "And said household goods were not injured or damaged while in the possession of this defendant." After ...