6 Div. 883. | Ala. | Apr 24, 1919
Appellant sued the Alabama Great Southern Railroad Company and the Louisville Nashville Railroad Company jointly in an action on the case, alleging that defendants had failed to deliver household goods which he had shipped from Cuba, a station on the first, to Johns, a station on the last, named railroad. Counts in trover and in detinue were joined. The court gave the general charge in favor of the Alabama Great Southern. There was a verdict for plaintiff against the Louisville Nashville, but on motion this was set aside.
We assume that demurrers to counts 5 and 6 were sustained on the ground that, while the two defendants, were sued in an action on the case jointly, the facts alleged in these two counts showed that defendants were not joint tort-feasors, but that one or the other of the defendants was alone liable. These rulings were correct.
Pleas 2 and 3 were not subject to the demurrers filed against them. They assert the proposition, in effect, that plaintiff's (appellant's) goods went astray for the reason that plaintiff, intending that his goods should be shipped to Johns, marked them for shipment to Jones, a station on the Southern Railroad. These were good pleas. 6 Cyc. p. 380, note 31. It was not necessary, as the argument for appellant suggests, that these pleas should negative the fact that appellant had paid the freight money in the amount necessary for the carriage of the goods to Johns — an amount different from that necessary to take the goods to Jones. This fact had not been alleged in the complaint. It was a mere evidential fact, and while, if proved, it may have been accepted as tending to establish appellant's contention, it was by no means conclusive to that effect.
Appellant's special replications 2 and 3 took no account of the matter alleged in pleas 2 and 3. It is very clear that, if appellant did misdirect his goods and in consequence they went astray, the Southern and the Louisville Nashville Railroads were entitled to compensation for hauling them from Jones to Johns.
We are not of the opinion that appellee was entitled to the general charge upon the whole case. It is true that the Alabama Great Southern could not be held liable under the trover or detinue counts; it is also true that the evidence furnished no means of ascertaining the damage alleged to have been done to the property while in transit; but there were counts for a failure to deliver. There was also testimony tending to show that the misdirection of the goods at Cuba, the point of shipment, was not the fault of appellant, or, even so, that appellee's agents in charge of its business at that place knew the destination intended by appellant and issued a bill of lading accordingly. If the facts were found in agreement with this tendency of the evidence, it was then appellee's duty to deliver the goods at Johns; and if, as appellant's testimony further tended to show, appellee collected in advance the full freight charge for transporting the goods to Johns, then it was the duty of appellee or its connecting carrier to deliver the goods at Johns without further charge.
The rule is that when a railroad company receives goods for transportation, safely carries them to their destination, informs the consignee of their arrival, and affords him reasonable opportunity to remove them, its duty and obligation as a common carrier are at an end. Collins v. A. G. S. R. R. Co.,
When the mistake in carrying the goods to Jones was discovered, the Southern Railroad Company, on a new bill of lading, sent them to Birmingham for delivery to the Louisville Nashville Company to be carried thence to Johns; freight money from Jones to Johns to be collected at the latter point. If the facts were found in accordance with the contention of appellant, the defendant Louisville Nashville Railroad Company was answerable to appellant in trover (6 Cyc. 474) or in detinue; this for the reason that, on this hypothesis of facts, no one had a right to haul plaintiff's goods about the country at his expense. However, we do not see that in any event there could be a joint recovery against the two defendants.
We are unable to say there was error in the action of the court in setting aside the verdict against the Louisville Nashville Company. The trial court, after hearing the witnesses, may have been clear to the conclusion that the contention of the defendants in respect of what occurred at Cuba should have prevailed.
Reversed and remanded, costs of appeal to be taxed against Alabama Great Southern Railroad Company.
ANDERSON, C. J., and GARDNER and THOMAS, JJ., concur.