Western Ry. of Alabama v. Hart

• Decision Date: 29 April 1909
• Citation: 160 Ala. 599,49 So. 371
• Parties: WESTERN RY. OF ALABAMA v. HART ET AL.
• Court: Alabama Supreme Court

49 So. 371

160 Ala. 599

WESTERN RY. OF ALABAMA v. HART ET AL.

Supreme Court of Alabama

April 29, 1909

Appeal from City Court of Selma; J. W. Mabry, Judge.

Action by C. M. Hart and another against the Western Railway of Alabama. From a judgment for plaintiffs, defendant appeals. Affirmed.

It is deemed unnecessary to set out the counts of the complaint other than the following:

(2) "Plaintiffs sue defendant for a breach of the contract and aver that during the entire month of January, 1906, the defendant was a common carrier of freight between Montgomery and Selma, both in the state of Alabama; that on, to wit, the 19th day of said month, in said year, another common carrier connecting with defendant at said Montgomery, delivered to defendant at the last-named place, for the benefit of plaintiffs, and defendant as such common carrier then and there accepted and did undertake to transport to Selma, for a reward, and there deliver to the order of plaintiffs, 314 boxes of oranges, the property of plaintiffs, and to notify plaintiffs' agent, H. E. Shropshire, of the arrival of said oranges in Selma. And defendant breached the said contract in this: The servants of the defendant, employed by it in its business of common carrier between said two places did bring said car with said oranges in it to Selma, and there deliver said oranges to order of plaintiffs, on or about January 24, 1906; that the car in which said oranges were, during the entire time they were in defendant's care and control as such common carrier, was what is known as a 'refrigerator car,' which was fitted with appliances and instruments by which it could be ventilated and thereby oranges and like perishable fruits in it for carriage preserved from decay; that when said oranges were delivered and placed in said car at the point of shipment by plaintiffs for transportation, the weather was cool and dry, but when said oranges were received by, and during the time when they were in the possession and control of, the defendant as such common carrier, the weather was warm and damp; that in such warm and damp weather oranges, if shut up in a closed car without a circulation of air, are liable to decay and perish rapidly; that the agents or servants of defendant, to whose care, custody, and control the said car was committed by defendant during the time said car was in defendant's possession as a common carrier, or some one or more of said agents or servants, by the use of due care and diligence in the manipulation and control of the appliances and instruments with which said car was fitted, could have prevented the decay of and injury to said oranges by ventilating said car and keeping a circulation of air in said car, but they, or some one or more of them, did negligently fail to use due care and diligence in the manipulation of said appliances and the ventilation of said car, and as a proximate consequence of said negligent breach of said contract in failing to properly ventilate said car a great quantity of said oranges decayed and were lost to plaintiffs while they were in said car, and in defendant's possession and control as such common carrier, and plaintiffs thereby sustained great loss and damage, in the sum of $500, which by this count they sue to recover of defendant as a proximate consequence of said breach of contract."

(2a) Same as 2, with slight, immaterial variation and in verbiage.

(5) Same as 2, down to and including the words "314 boxes of oranges, the property of plaintiffs," where they first occur therein, and adds: "That defendant as such common carrier did bring said oranges to said Selma on or about January 20, 1906, and thereafter, after a reasonable time had elapsed for plaintiffs' said agent or some one by his order to call for and receive said oranges from defendant, they remained uncalled for in the possession of defendant, and the defendant undertook and agreed as a warehouseman and for a reward, and for the benefit of plaintiffs, to keep said oranges with reasonable care and to deliver the same to plaintiffs' said agent when called for, notwithstanding which defendant breached the said contract or undertaking in this: Said oranges, at the time defendant received them in Montgomery and during the whole time they were in its possession, both as a common carrier and as a warehouseman, were stored in what is known as a 'refrigerator car,' which was a car fitted with appliances and instruments to ventilate said car, and preserve oranges and like perishable fruits from decay when stored therein, the use of which appliances were well known to defendant; that during the time when said oranges were in possession of defendant as such warehouseman the weather at Selma, where such oranges were being kept, was warm and damp, and that in such weather oranges, if kept in a close car, without ventilation, are liable to decay and perish much more rapidly than in cool, dry weather; that defendant, or its agents or servants in whose care or custody said oranges were by it placed while they were in said car and in the control of defendant, as such warehouseman, by the use of ordinary care and prudence, could have manipulated such appliances and instruments with which said car was fitted, so as to ventilate said car and prevent the decay of said oranges, but defendant negligently failed to use due care and prudence in the ventilation of said car; and as a proximate consequence thereof said oranges were allowed to remain shut up in said car without proper ventilation, and a great quantity of them thereby decayed and perished before they were delivered by defendant at said Selma to plaintiffs' agent there, in breach of its said contract," etc.

(5a) In all respects similar to 5, except for a few immaterial changes in verbiage.

(6) Same as 2, down to and including the words "314 boxes of oranges, the property of plaintiffs," and adds: "That defendant brought said oranges to Selma on, to wit, January 20, 1906, and thereafter, after a reasonable time had elapsed for the said agents of plaintiffs or some one in their behalf to call for and receive said oranges from defendant, they remained unclaimed in its possession and the defendant undertook as a warehouseman, for the benefit of plaintiffs and for a reward, to deliver the same to the said agent promptly when called for or demanded, notwithstanding which the defendant did breach said undertaking or agreement in this: It negligently failed by and through its servants or agents to promptly deliver said oranges to said agent or plaintiffs, but to the contrary kept Howard & Kornegay, agents of said Shropshire, who made inquiries of said defendant's said agents or servants, in charge of the car in which said oranges were, in ignorance of their arrival, and informed said Howard & Kornegay that they (defendant's servants) had no oranges in Selma, although they had notice at that time that said Howard & Kornegay were the agents of said Shropshire, and thereby failed and refused to deliver said oranges to the plaintiffs' said agent promptly, as they had agreed to do, and as a proximate consequence of said breach or undertaking a great part of said oranges were decayed and lost to plaintiffs by a delay in the delivery," etc.

(6a) Similar to 6.

Counts 7 and 7a were in the form prescribed by the Code for actions on bills of lading. All of the counts as originally filed sought to recover for the same property and in the same amount, and on practically the same state of facts. Counts 1 and 1a count on failure to deliver within a reasonable time after receipt of the oranges. Counts 3 and 3a allege the decay to have occurred from failure to ventilate, etc. Counts 4 and 4a allege the liability to be that of warehouseman, with want of reasonable care and prudence in preservation of property.

There were demurrers raising the question of misjoinder of causes of action, in that some of the counts were in case and some were ex contractu. The demurrers filed to counts 2 and 2a and 5 and 5a were as follows: Counts 2 and 2a: "(1) Because they fail to show or aver with sufficient certainty the contents of the contract which it is alleged has been breached. (2) It fails to show or aver with sufficient certainty wherein any contract has been breached. (3) Because it assumes that it is a duty of a common carrier to actually deliver goods to a consignee, when by law it is only required to transfer and hold them ready for delivery on the call or demand of the consignee. (4) Because it fails to show with sufficient certainty for what breach plaintiff seeks to recover. (5) It seeks to recover in one and the same count for a failure to carry safely and for a breach of a contract. (6) Because it fails to show or aver with...