79 Ala. 395 | Ala. | 1885
The receipt of goods by the defendant as common carrier was a fact which could be proved by any competent evidence, without producing the bills of lading. In such a case, parol evidence is as much primary as that which is written, the nature of such evidence failing to indicate on its face that any better remains behind or undisclosed. — 1 Green. Ev. § 84; 1 Whart. Ev. § 77. If, moreover, it was otherwise, the error would have been cured by the subsequent production of the bills of lading during the progress of the trial.
The book entries were also admissible to show the fact of the receipt of the merchandise. They were made by the authorized agent of the railroad company, or under his direction, in due course of his agency, and the correctness of the entries was proved by the agent himself. This constituted such entries written admissions which formed a part of the res gestee of the fact of delivery itself.—Danner Land and Lumber Co. v. Stonewall Ins. Co., 77 Ala. 184; 1 Green. Ev. § 113; 2 Whart. Ev. § 1131.
When goods are intrusted to a common carrier for transportation, he is liable for all loss or damage, except such as may be occasioned by the act of God, the public enemy, or by the wrong or negligence of the party complaining.—A. G. S. R. R. Co. v. Little, 71 Ala. 611; South & North Ala. R. R. Co. v. Wood, 66 Ala. 167; s. c., 41 Amer. Rep. 149. He becomes pro hac vice, and to this particular extent, an insurer, and such insurance clearly covers any accidental loss by fire.
It is a further principle, material to this case, that where a demand is made upon a railroad company, acting as a common carrier, for goods which have arrived at their destination, and there is a failure to deliver them, without sufficient excuse, the company must continue to hold the goods at their own peril, and not at that of the consignee.—Meyer v. The Chicago & N. Railway Co., 24 Wis. 566; s. c., 1 Amer. Rep. 207; 2 Rorer on Railroads, pp. 1245-6; Wood’s Railway Law, § 444.
Applying these principles to the present case, we discover no error in the conclusions reached by the City Court, either as to the facts or law. The lard was received on November 14th, 1884, and was destroyed by fire the same night. The liability of the defendant as to this merchandise was clearly that of a common carrier and not of a warehouseman, a reasonable time for removal not having-elapsed at the time of its destruction.; The company was an insurer against its loss by fire.
As to the candy and cider, destroyed at the same time, it is true the defendant was a mere warehouseman, or bailee for hire, in as much as the consignee had notice of their arrival, as well as ample time within which to have removed them. But, in our opinion, the testimony shows that a demand was twice made on the defendant’s agent, and he failed to deliver these goods, without proper excuse — once on the tenth of November, and again on the fourteenth, the day preceding the night of the fire.
When these demands were made, the failure to deliver was not placed on the ground that the consignees owed the charges due for transportation. No mention was made of this amount,' nor did the defendant claim that his neglect to deliver was on this account. Had he done so, the consignee may at once have paid the sum claimed. He could not, therefore, afterwards set up this lien, which was a mere right of retainer, as a defense to this action.
We find.no error in the record, and the judgment of the City Court is affirmed.