90 So. 502 | Ala. | 1921
In Emerson v. Central of Georgia Railroad Co.,
The foregoing sections of the Code have an appropriate place as a part of article 6 (page 1358 et seq., vol. 2), providing for regulation of railroads and common carriers, especially regulation of the rates that may be charged by railroads as common carriers in the transportation of passengers and property.
It is said by Mr. Elliott, in his work on Railroads (volume 1 [2d Ed.] § 642), that mandamus will not lie against a railroad compelling the performance of a service or an act not clearly within its legal duties as a common carrier; and it must appear in the application for the writ (1) that defendant was obligated under the law to perform such act or service, and (2) that the petitioner has a legal right to demand the performance. Where there is a right of refusal by the common carrier to perform the service or act, there exists the right of contract for the performance of such act or service (if not ultra vires), in a different capacity from that which rests upon it as such common *401 carrier. We apprehend that it cannot be successfully maintained that mandamus would lie against the Alabama Great Southern Railroad Company as a common carrier to compel it to park the cars of appellee for the period indicated, since such parking of such cars is not a duty it must discharge on application by any one of the general public, or by Mr. J. L. Wood, by reason of its being a common carrier.
The Court of Appeals is not correct in the observation that there "was no error in refusing to allow the defendant to prove that the charge made" for parking of the two cars in question for 45 days was a reasonable charge for such service, and in the observation that defendant may not show the reasonable expense to which it was subject or incurred "in moving the cars from place to place on its side tracks" during the 45 days of the location thereon.
The provisions of section 5522 of the Code of 1907, "for track and car service or rental, and for switching, demurrage, terminal, and transfer service, and for rendering any other service in connection with the transportation of passengers and property," are such rentals and service as are to be charged by the railroad company in its capacity as a common carrier, in the conduct of its business and in the discharge of its duty in the transportation of passengers and freight, and do not extend to track rentals and car service of the nature and kind made the subject of this controversy. The retaining upon its tracks of the two cars of Mr. Wood for a period of 45 days by defendant, who gave permission that Mr. Wood, his family and servants might reside therein while the same stood upon its tracks for such time, was no part of defendant's duties as a common carrier, and could not be compelled by mandamus against the railroad.
Analogous authorities are to the effect that there are services and rentals for which the defendant railroad company is not liable when not in the discharge of its duty as a common carrier. Kennedy Bros. v. Mobile G. R. R. Co.,
It follows from the above that there was error in overruling defendant's motion for a new trial. The writ is awarded; the judgment is reversed, and the cause remanded to the Court of Appeals for further consideration in accordance with this opinion.
Writ granted, and reversed and remanded.
All the Justices concur. *402