51 So. 643 | Ala. | 1910
— In the bill of lading issued for the consignment for the loss of which, by fire, this action was brought, it was stipulated, in consideration of reduction in freight rate, that “no carrier or party in possession of all or any of the property herein described, shall be Hable for any loss thereof or damage thereto by causes beyond its control; or by floods or by fire. * * *» T[ie acceptance of the contract containing that stipulation — the stipulation being valid — operated to relieve the defendant (appellant), as a common carrier, from the exacting liability of an insurer, with familiar exceptions, of the goods, and to limit the liability for loss or damage to the goods while in the course of transportation and delivery by the common carrier, as such, to negligence of the common carrier, as such, proximately resulting in its loss or damage. That the loss or damage occurring was without fault or negligence of the carrier is matter of exoneration, exceptional, to aver
When the relation of common carrier, as such, to the consignment ceases, a,nd the relation thereto becomes that of a warehouseman, has been so often stated here as to render restatement at this time entirely unnecessary. In 5 May. Dig. p. 178, and 2 May. Dig. pp. 640-642, may be found many of our decisions announcing the rule.
With reference to the termination of the relation of common carrier, as such, to a 'consignment, the effect of our statute (Code 1896, § 4224; Code 1907, § 6137) is to divide delivery points into two classes, viz., those without and those within the statute. Under the statute as written in the Code of 1896, the relation of common carrier, as such, continues in towns or cities of 2,000 population or more, and having a daily mail, “unless within twenty-four hours after arrival of such freight notice thereof is given the consignee, formally or through the mail. * '"' *” In the latter codification (1907) the provision with respect to population is omitted. Otherwise the statute is now the same. The rela
The gist of the replications, as we construe them, is that negligence infected the destruction of these goods, in this, that no notice of their arrival was given the consignee. The replications will be set out in the report of the appeal. Since the action, stated in the Code form (Civil Code, p. 1197, form 15), is ex contractu, it is a question whether these replications are not a departure in afterpleading. This inquiry is not, however, raised or decided. The statute (section 4224, supra) wus not intended to lay upon the carrier an imperative duty to notify the consignee, in a city or town within
Replication 1 would ground a breach of duty upon a custom to give the notice described. The pleading must be construed most strongly against the pleader. So viewed, it cannot be held that the custom described had any greater effect that to affect the relation of the carrier to the consignment — to modify the liability from that of common carrier, as such, to that of a warehouseman, if the custom, in respect to the notice, was observed; if not observed, that the stricter accountability should continue. Plaintiff’s counsel seem to have based both replications upon the principle announced in the line of decisions to which L. & N. R. R. Co. v. Gidley, 119 Ala. 523, 24 South. 753; A. G. S. R. R. Co. v. Quarles, 145 Ala. 436, 40 South. 120, and Alabama & G. S. R. Co. v. Elliott, 150 Ala. 381, 43 South. 738, 9 L. R. A. (N. S.) 1264, 124 Am. St. Rep. 72, among others, belong. In this line of cases dereliction in some substantive duty concurred with an occurrence, the act of God, for instance — for which the carrier was not accountable — in producing the loss or damage complained of. The principle cannot avail this plaintiff, unless' it can be affirmed that a failure to give the notice, sanctioned, it is alleged, by the custom, was a breach of a substative du
For the error committed in giving the affirmative charge for the plaintiff, the judgment is reversed, and the cause is remanded.
Reversed and remanded.