Louisville & Nashville Railroad v. Duncan, 137 Ala. 446

137 Ala. 446 | Ala. | 1902

MoCLELLAN, C. J.

The action is prosecuted by Duncan & Orr against the Louisville & Nashville Railroad Company. The complaint is as follows: “The plaintiffs claim of the defendant one thousand dollars damages for that heretofore, to-wit, on the 5th day of November, 1899, defendant was engaged in the business of a common carrier of freight from Birmingham, Alabama, with connections at various points, several of which connections reached Greenville, Florida; thaifc on said day plaintiffs delivered to defendant- at said Birmingham a large lot of horses and mules, to-wit, twenty-six head, to be carried to said Greenville, Florida; that, defendant accepted said stock, and it became and was. 'the duty of defendant to cany said stock with reasonable speed to said Greenville, or with reasonable speed to- deliver said stock to the one of its connections which cotí Id carry said stock with all reasonable speed to said Greenville, but, notwithstanding said duty, defendant delivered said stock to that one of its said connections which had a long and circuitous route to said Greenville, Florida, instead of that one of its said connections which had a shorter and more direct route to said Greeneville, or instead of carrying said stock itself to said Greenville, and by reason of said delivery as aforesaid, said stock did not reach said Greenville for a long time, to-wit, for three days longer than it should have taken for them to have been delivered at Green-ville, and as a proximate consequence ¡thereof, said stock were subjected to a great deal of jolting and jostling, and were greatly bruised and otherwise injured, and said stock were kept closely crowded together in said car, and said stock or a part thereof were made sick, and suffered a, long time for lack of food and water, and plaintiffs had to pay a large amount for feed bills, and the said stock were.1 rendered greatly less valuable to plaintiffs; -all to plaintiff’s damages, one thousand dollars, wherefore; they sue.” We have had some difficulty in making out precisely what this- complaint means, but, resolving its involvements against the pleader, we have come to the conclusion that it charges alternatively that it was either defendant’s duty itself and upon its own lines to transport the stock from Birmingham, Ala., to Greenville, Fla., or to deliver it at some unidentified point — whether at Birmingham, or Montgomery, or what not, is not stated — on its own line to some connecting carrier having a direct route of transportation from such point to the Florida town, and that the loss resulted either from defendant’s failure to perform the carriage itself or from its failure to- forward the- consignment by a carrier having such -direct route by its connections or otherwise from the; po-int, of connection to- the destination of the shipment. So- construed we are of opinion that the complaint does not state- any cause of action. Its alternative averments of the existence of one-, or, if not that one, then the other, and vice versa of two entirely distinct and different causes of action against the defendant in distinct and different capacities, is not the affirmative averment of either -of the causes of action referred to; and it cannot be said to aver any cause of action whatever. — Southern Railway Co. v. Bunt, 131 Ala. 591; Central of Georgia Railway Co. v. Freeman, 134 Ala. 354; 32 So. Rep. 778; Tinney v. Central of Georgia R’y. Co., 129 Ala. 528; Southern Railway Co. v. Shelton, 138 Ala. 191. No cause of action being averred, the judgment must be reversed. — Code, § 3333.

On the state of facts existing with reference to this consignment, after the car had reached Montgomery and the Plant System had refused to accept it for carriage to Greenville, if that company did so refuse1 — and on this issue it seems to us ¡that the evidence was all with the defendánt — it was defendant’s duty to give notice of that fact to the consignors to the end that they might give further directions as to routing the consignment, unless the property was of such perishable nature as that the time necessary to give such notice and to> receive such instructions would have caused a delay in forwarding calculated to. injure or destroy it. We do not find on the: evidence, in this record 'that any such delay would have been entailed by taking the time necessary to these ends, or, at least, we may say that with this issue properly in the case, it would be open to the jury to find that the defendant was remiss of its duty in this connection. Live stock is, of course, perishable in a general sense; but we apprehend that horses and mirléis released from the car and in a pen in Montgomery, as these were; were ini no danger of perishing while the defendant was communicating with the consignors at Birmingham 'and receiving their reply.

It seems clear to us also that parol evidence as to the consignors having given direction for the consignment to go from Montgomery by the Plant System did not tend to vary or contradict the stipulations of the bill of lading; and that the evidence received on this subject, if believed by the jurir, established the fact that the consignors directed the transportation to be over the Plant System.

Other questions aside, it was the duty of the defendant as the forwarding agent of plaintiffs from Montgomery —the Id ant System having declined the consignment— to exercise- the «ame care in selecting a carrier or a succession of carriers from Montgomery to Greenville as the owner, being a man of ordinary care and prudence, would have exercised had he been present, and as fully acquainted with all the lines acid connections as the defendaut was. And it was a question for the jury whether such a man would have delivered this carload of live stock to the Georgia & Alabama Company, whose manifest interest it was to carry it, over their whole line to Savannah and send it thence to Greenville, this route being very long and very circuitous, without directing that company to deliver1 it to, a connecting -line at Cordele, Georgia, whereby the distance and time from Montgomery to Greenville would have been reduced about one-half. If the jury should find that a man of ordinary prudence and care would have directed the carriage by the Cordele connection, they should further conclude that defendant was negligent in delivering the car to, the Georgia & Alabaima road without such direction.

We deem it unnecessary to refer to the rulings of the trial court in detail, since the judgment must be reversed on the insufficiency of the complaint, and what we have said will serve to indicate our views for the purpose of another 'trial, should there be one.

Reversed and remanded.