52 So. 918 | Ala. | 1910
The action is for breach of a contract between appellee (plaintiff) and the. appellant,
Plea 8, which will bet set ont in the report of the appeal, avers, in substance, that the dog escaped, in transit, from the locked crate, appellee having the key, in which it was when delivered to the carrier by the appellee, and from the appellant’s car, without fault of the carrier; and that the crate or box was delivered to appellee at Montgomery in the same condition as when received by the carrier at the initial point in Florida; and concludes that the loss of the dog was wholly due to the fault of the appellee. It is necessarily inferable from the averments of the plea that the escape of the dog from the crate or box was effected through an opening therein.
Whatever may have been, or may be, the opinion elsewhere prevailing, it is settled with us that a carrier, undertaking to transport and deliver live animals, is subject to the same responsibilities, with respect thereto, as in ordinary cases of goods received for transportation by a common carrier, except it is not accountable for, and does not assume the risk of, loss or damage of live animals “arising from their nature and propensities, and which could not be prevented by foresight, vigilance, and care.” — Central Railroad v. Smitha & Chastain, 85 Ala. 47, 4 South. 708; South & N. R. R. Co. v. Henlein, 52 Ala. 606, 23 Am. Rep. 578; Western R. Co. v. Harwell, 91 Ala. 340, 8 South. 649. The exceptions, aside from those legally possible of creation by special contract, to the exacting common-law liability of a common carrier in the carriage of goods, are the acts of God and of.the public enemy, where no negligence, of omission or commission, concurred therewith to produce the damnifying result. — Authorities supra; Steele
Counsel for both litigants construe plea 3 as asserting, when reduced to legal formula, that Avhere the shipper of a live animal crates or boxes it, the shipper, and not the common carrier, assumes the risk of escape of the au imal therefrom if such escape results from the nature and propensities of the animal. To state the matter otherAvise: That where such live animal is crated or boxed bv the shipper and escapes therefrom, after reception by the carrier, as the result of natural propensity, the shipper, and not the carrier, is negligent.
It is not contended that the carrier was ignorant of the character of the shipment. The carrier affirms, by the plea as constructed by counsel, and the shipper (here) denies, by his demurrer thereto, the correctness of the proposition. The gist of the argument in negation of the soundness of the proposition is that the carrier by receiAnng the animal so crated or boxed, assumes the risk of the sufficiency of the inclosure,•'
Subject to the exception, among others not now necessary to enumerate, that it may properly refuse to accept for transportation goods “tendered in an unfit condition” therefor, a common carrier is duty bound to transport all goods that are properly offered for that purpose. — 4 Elliott on R. R., § 1466; 1 Hutchinson on Carriers, §§ 143, 145. While the carrier may refuse to accept goods improperly packed, yet if it accepts them in that condition — a condition open to the ordinary observation — “the duty attaches of exercising due care for its safe carriage.” — Union Ex. Co. v. Graham, 26 Ohio St. 595; E. J. & E. Ry. Co. v. Bates Machine Co., 98 Ill. App. 311, 315; Hannibal R. R. v. Swift, 12 Wall. 262, 272, 20 South. 423; 4 Elliott on R. R., § 1466, p. 154; Munster v. S. E. Ry. Co., 4 C. B. N. S. 676. Mr. Elliott, at the citation last made from his work, says: “If goods which may be properly rejected are actually, not merely constructively, accepted for carriage, the common carrier’s liability attaches.”
In the case of Hannibal Railroad v. Swift, supra, the Supreme Court dealt with this state of fact: An army surgeon was en route under orders, with a part of the command to which he was attached, from South Dakota
We think it can be safely ruled, in accord with Hannibal R. R. v. Swift and the other texts and decisions cited, that, first, the carrier has the right to inspect proffered shipments and to refuse their ° acceptance when not in fit condition for transportation; second, that, if unfit for shipment, and ordinary observation would discover that fact, it is the duty of the carrier to refuse the shipment, in order that the shipper may, if he can, conform the shipment to a fit condition for transportation ; and, third, that the acceptance of a shipment for transportation, without qualification or dissent in respect of the fitness of its condition for that purpose, subjects the carrier to all the liabilities ordinarily attaching to an accepted shipment of the character to which that shipment belongs.
In this instance — that shown by the complaint and by plea 3 — the character of the shipment, viz., live animals in a box or crate, and their natural propensity to escape confinement, were known to appellant’s servants. The tender for transportation was of these animals, and not, primarily, of the box or crate which was but a means to conserve convenience of custody and handling and the safety of the animals with it. If the dog had been leashed with cords attached to a heavy block, there would have been, in principle, no difference. If that had been the means employed, the carrier could not, after acceptance of the shipment, have answered, when impleaded for the loss or injury of the animal,
It wrill be observed that this court did not conclude, in the quotation, to the common carrier’s exoneration solely upon the ground that the injury arose from the nature and propensity of the animal. That, alone, will not suffice to exonerate the carrier in case of loss to a live animal after acceptance for transportation. The natural propensity of the animal that may lead to in jury or loss must be anticipated “by foresight, vigilance and care,” if the transportation thereof is undertaken. The verv statement of the rule of duty — to exonerate— precludes any right of the carrier to transfer the consequences of its neglect in this regard to the shipper.— Hannibal R. R. v. Swift, supra. Being bound in duty, as Central R. R. v. Smitha & Chastain defines it, it would he obviously illogical — an immediate qualification of the duty declared — to close the responsibility of the carrier for restraint thereof against natural propensity to escape when the shipper tenders and the carrier accepts a live animal, boxed and crated, for transportation. The carrier may, in a proper case, refuse a shipment where in unfit condition for transportation. If so, it must be a necessary consequence that, having accepted the shipment, as tendered, its duty is unmodified
The demurrer to plea 3, on the theory respectively asserted and denied by counsel, was properly sustained, on like considerations to those inducing our conclusion as respects plea 3, the demurrer to replication 2 was well overruled.
A careful review of the evidence, especially with reference to the material, averments of plea 2, which counsel for appellant insist were proven without dispute, does not convince this court that the court below (the trial was without jury) reached an erroneous conclusion as upon the facts and circumstances in evidence.
The allegation in the complaint of the sum paid was under the videlicet, and hence the insistence, for appellant, of variance in respect of the sum alleged and that proven cannot prevail.
The judgment is affirmed.
Affirmed.