60 So. 945 | Ala. Ct. App. | 1912
Lead Opinion
This suit was brought in the city court of Selma for the recovery of damages which the plaintiff (appellee here) alleges in his complaint he suffered by reason of certain injuries which certain of his stock received while being transported by the defendant (appellant here), as a common carrier for hire, from Montgomery, Ala., to Bessemer, Ala. The
It is also a familiar proposition that, Avhen a special plea sets up, as a defense to an action, facts Avhich may be given in evidence and relied upon as a defense to the action under the plea of the general issue, the trial court Avill not be put in error for sustaining a demurrer to such plea. For the reasons above given, the trial court was without error in sustaining the plaintiff’s demurrer to special pleas B, C, D, and E, filed in this cause by the defendant.
The above decision of the Supreme Court, as well as many other cases and text-books, recognize that the foregoing rule does not necessarily prevail when the bill of lading is issued after the shipment of the goods under a previous contract. In L. & N. R. R. Co. v. Williams, supra, the cotton was delivered to the initial carrier contemporaneously with the issuance and acceptance of the bill of lading, and it was sought to hold the initial carrier for a default of a connecting carrier, when the bill of lading expressly exempted the initial carrier from such default, and the Supreme Court held that all prior negotiations between the shipper and the initial carrier Avere merged in the contract of shipment; that the bill of lading was the sole repository of the contract; and that any prior statement, declaration, or assurance, on the part of the initial carrier, that its connecting carrier Avould transport the cotton by a particular steamer on a named sailing could not be shown. In the instant case, before the bill of lading Avas issued
It was fully understood between the plaintiff and the defendant, before the stock left Selma, that there was to be, in fact, one continuous, uninterrupted carriage of the stock from Selma to Bessemer, via Montgomery and Birmingham; that, upon the arrival of the stock in Montgomery, the car in which they left Selma was to be immediately taken up by the defendant and attached to its train 78, and at once proceed on its journey. The issuance and acceptance of the bill of lading, under these circumstances, and under the assurances which plaintiff received from defendant’s agent when the freight was paid and when the bill of lading was accepted, did not, as matter of law, render the bill of lading, which was silent as to what train the stock should go on, the sole repository of the contract. It was at least a question for the jury, under the facts of this case, to say whether the bill of lading was issued and received as applying to the particular train 78, which was to be held to get the stock, and which was, as plaintiff was informed,- when he accepted the bill of lading, in the yards ready to take the stock to Birmingham. — Elliott on Railroads, § 1423, and cases cited in note 47.
If, when the plaintiff shipped his stock from Selma to Bessemer, via Montgomery and Birmingham, the Western Railway Company had issued to him and he had accepted a bill of lading through from Selma, via Montgomery and Birmingham, and this suit had been brought against the Western Railway Company for the failure of the Louisville & Nashville Railroad Company, a connecting carrier, to carry the stock to Birmingham on train 78, then a situation somewhat similar to the situation which prevailed in
The judgment of the court below is affirmed.
Affirmed.
Note. — The foregoing opinion Avas prepared by Judge de Graffenried Avhile he Avas a judge of this court, and is adopted by the court.
Rehearing
On Application for Rehearing.
Since the foregoing opinion Avas handed doAvn, there has been published the opinion of the Supreme Court of the United States in the case of Chicago & Alton R. R. Co. v. Nathaniel T. Kirby, report
The state statute (Code, § 5540) thus reads: “If any railroad company or other common carrier shall directly or indirectly make or give any undue dr unreasonable preference or advantage to any particular person, firm, corporation, or locality, or subject any particular person, firm, or corporation, or locality to any undue or unreasonable prejudice or disadvantage in any respect, whatsoever, such railroad or common carrier shall be guilty of unjust discrimination, which is hereby prohibited and declared unlawful, and shall be liable to the state in a penalty of not less than five hundred dollars* nor more than five thousand dollars for each offense.” And the kindred section of the federal statute, from which ours was evidently borrowed, thus reads: “That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation or locality, or any particular description of traffic in any respect whatsoever, or to subject any particular person, company, firm, corporation or locality, or any particular description of traffic to any undue or' unreasonable prejudice or disadvantage in any respect Avhatever.” — Volume 3,. Fed. Statutes, annotated.
The headnotes of the aforementioned decision of the United States Supreme Court, construing the above statute, make it clear, Avithout further quotation, that.
Upon this authority, the application for rehearing is .granted, and the cause is reversed.
Reversed and remanded.