104 So. 413 | Ala. | 1925
This is an action against a common carrier for injuries to four mules while in transit. This is the third appeal. For former decisions, see
The complaint is in Code form (Code of 1923, § 9531, form 15), except it fails to state the place of delivery of the shipment. This is a material allegation to properly apprise the carrier of a fact needful to the preparation of its defense.
In this case, however, the same complaint, amended only as to amount claimed, had been on file from the beginning of the suit. Two trials had been heard wherein all the facts touching the place of delivery were disclosed. The ruling on demurrer to the complaint, as thus amended, could work no injury to the defendant.
This Code form of complaint is in terms based upon the common-law liability of a common carrier. By virtue of the statute it is made to cover shipments by bill of lading having special limitations.
On proper proof a recovery may be had for breach of the contractual obligation of the carrier at common law, or upon a bill of lading. Atlantic Coast Line R. R. Co. v. J. S. Carroll Mercantile Co.,
The evidence, without conflict, showed the car of mules was received by defendant from the Louisville Nashville Railroad Company, a connecting carrier, at Montgomery, Ala., and was transported to the point of delivery at Troy, Ala. The freight and feed bills show plaintiff to have been the consignee, and delivery was actually made to it. This sufficiently established the contractual relation between the parties. The bill of lading issued by Wabash Railroad, the initial carrier, at Mexico City, Mo., to Middleton, the agent of plaintiff, in connection with his deposition, tended to identify the shipment as the same car loaded by Middleton, sealed and finally delivered at Troy, Ala. The fact that Middleton was named as consignee and St. Louis as the destination in the bill of lading did not show a fatal variance. Plaintiff was entitled to recover on common-law grounds, and the bill of lading, as part of Middleton's deposition, was admissible for purposes of identification. As held on last appeal,
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur. *236