49 So. 797 | Ala. | 1909
This was an action by appellant against appellee for the failure to deliver a car load of cypress lumber delivered by appellant to defendant as common carrier at- Luverne, Ala., to be shipped to Cincinnati, Ohio, for a reward. The appellant was both the consignor and consignee. The complaint as last amended consisted of three counts, denominated A, B, and C, respectively. Each count is substantially in the form prescribed by the Code for actions on a bill of lading of common carriers. Form 15, p. 946, of the Code of 1896. Counts A and B claim damages for failure to deliver generally, while count B is for failure to deliver within a reasonable time. Each count is an action against a common carrier for breach of a contract of shipment, and is ex contractu. — Southern Ry. Co. v. Rosenberg, 129 Ala. 287, 30 South. 32.
The defendant filed seven pleas, denominated numerically 1, 2, 3, 3 1-2, 4, 5, and 6. The plaintiff, demurred to each of these pleas, except No. 1. Demurrer was sustained as to pleas 3, 3 1-2, and 4, and overruled as to pleas 2, 5, and 6. No. 1 being the general issue, there was no demurrer thereto. To these pleas 2, 5, and 6, which were special pleas, as to which plaintiff’s demurrer was overruled, he filed six replications, numbered
As before stated, each count of the complaint alleged a contract of shipment, made between the parties to the suit on May 27, 1905, of a car load of cypress lumber to be shipped from Luverne, Ala., to Cincinnati, Ohio, and to be there delivered to the plaintiff, setting up a breach of said contract and failure to deliver; two of them alleging failure to deliver generally, and the other a failure to deliver within a reasonable time. It will be observed that these counts are practically in the Cock form, and that there is no allegation, in the Code form or in these counts, as to whether the contract of shipment was oral or in writing, but only that the goods were received by the defendant as a common carrier to be delivered to the plaintiff at Cincinnati, Ohio, and that, after receiving, the common carrier failed to deliver.
Plea 2 alleges as a defense to the action that its line extended only from Luverne, Ala., where the freight was received, to Montgomery, Ala., and that in .order for the shipment to be carried to Cincinnati it was necessary for it to be delivered by the defendant at Montgomery to a connecting line; that it was agreed between the par
Plea No. 6 alleges that on May 31, 1905, the defendant issued a bill of lading to plaintiff at Luverne, Ala., for transportation of the car load of lumber in question, which bill of lading was in writing, and a copy of which was attached and made a part of the plea; that the defendant was the initial carrier, and that its line extended only from Luverne, to Montgomery, Ala.; that this bill of lading constituted the sole contract between the parties for the shipment, and that by the terms thereof it was expressly stipulated and provided that “no carrier was bound to carry the property by any particular train or vessel, or in time for any particular market, or otherwise than with as reasonable dispatch as its general business will permit”; and also that “no-carrier shall be liable for damages or loss not occurring on its portion of the route, nor after said property is
We do not think it can be denied that each of these pleas stated a complete and perfect defense to any cause of action alleged in any count of the complaint, and that they are not subject to any ground of demurrer assigned thereto (and, so far as the writer of this opinion can see, are not subject to any other ground of demurrer, though as to this there is no intention to decide, because not necessary, and would be dictum, if so attempted). One ground of demurrer alleged was that the pleas should have attached as an exhibit or set out the specific contract of shipment alleged, or the particular clause thereof relied upon as a defense in said plea. A sufficient answer to this ground of demurrer is that pleas Nos. 2 and 5 did not allege that the contract was in writing. If oral, it was sufficiently set out, and could not be attached, and it was not necessary for the contract to be in writing, nor was it necessary to allege whether it was oral or in writing; but as to the sixth plea it alleged that the contract was in writing, and at
Another ground of demurrer assigned and insisted upon was that the pleas failed to show any consideration to the plaintiff for the agreement. This, of course, is without merit, for that the fact of shipment alone by the defendant was a sufficient consideration to support any lawful agreement between the parties as to the terms of shipment.
Another ground of demurrer alleged and insisted upon, as to plea No. 2, is that it fails to show that the Mobile & Ohio Railroad Company ever carried the lumber to Cincinnati, Ohio. A sufficient answer to this ground of demurrer is that the contract alleged was that the defendant was only to carry the lumber from Luverne to Montgomery, Ala., and there to deliver to a connecting carrier. It did not allege or set forth a contract- which imposed a duty upon the defendant to see that the shipment was delivered by the Mobile & Ohio Railroad Company, but under the contract alleged the defendant’s liability ceased when it delivered, promptly, to the Mobile & Ohio Railroad Company at Montgomery, Ala.
The next ground of demurrer insisted upon is that the picas failed to show that the plaintiff was notified of the delivery of the- lumber to the Mobile & Ohio Railroad Company by the defendant, or of its arrival. There is no merit in this ground, for the reasons, stated above, that the contract relied upon and alleged as a defense in these pleas showed that the only duty or liability resting upon the defendant, the receiving carrier was to promptly carry to Montgomery, Ala., and to there deliver, 'n good condition, to a common connecting carrier, and each of said pleas alleges a performance of this duty.
Demurrers were properly sustained to all the replications filed by the plaintiff to pleas Nos. 2, 5, and 6. Each of the six replications filed was an entire departure from any cause of action contained in the complaint. The cause of action sued on and set forth in the complaint was an action ex contractu, for the breach of a contract in which the defendant received as a common carrier a car load of lumber and agreed to deliver to the plaintiff at Cincinnati, Ohio. No one of the replications is in any sense a denial of the facts set forth in any one of the pleas, nor does it confess and avoid the plea, nor does it present any matter of estoppel, but- sets up entirely new matter, which, if availing at all, will be matter for a new and different action from that declared on in the complaint, which new and different cause is stated by the plaintiff’s counsel in his brief as follows: “In this case, if pleas 2, 5, and 6 be true, and the replications 2, 3, 4, 5, and 6 also be true, it is clear that the plaintiff lost his lumber by reason of the misrepresentations and erroneous information given him by defendant, through its agent, that the lumber liad been delivered to the Louisville & Nashville Railroad Company; for if the lumber was delivered to the Mobile & Ohio Railroad Company, and this information had been given to the plaintiff, he would have called at the freight office of the Mobile & Ohio Railroad Company at Cincinnati for this lumber, and would have received it.”
If the facts stated in these pleas and the replications thereto are true, and they must be so treated as to rul
If such erroneous information be actionable, it is a separate and distinct cause of action from that of the original contract. If the defendant’s agents, at the time this contract was made, or even before it was executed, had made this statement, or representations similar to those alleged in the replication, it might be estopped thereby from afterwards asserting that the contract of shipment provided for shipment over the Mobile & Ohio Railroad or a different line; but it affirmatively appears that the representations were made after the contract was executed, and consequently could not have induced the making of it, or have had any effect whatever upon the original contract of shipment, which was fully executed. While, of course, it was wrong for this agent of the defendant to give erroneous information to the plaintiff, and while it may have damaged plaintiff, and may be actionable, yet it cannot operate to make the
Demurrers are leveled against each of the replications from 2 to 6, inclusive, upon the ground of departure from the original complaint-, and the court properly sustained the demurrers to such replications. There were other pleadings in the case than those treated and described in this opinion; but such pleadings were eliminated by the court or the parties, as to which there, are no objections or assignments of error. While we have not treated separately and severally each assignment of error of the pleadings and rulings of the court thereon, they have been examined and considered; and the opinion of the court upon those treated and discussed disposes of all. We find no error shown in record of which the appellant can complain.
We have fully examined all the authorities cited by the plaintiff’s counsel in the able and full brief which he has submitted; but we find no error in the record. It may be a hardship on the plaintiff to have received erroneous instructions as to the routing of this shipment and he may have suffered damages in consequence thereof; but this hardship cannot be avoided, or compensation awarded for his loss, in this case. It is better that the plaintiff should suffer an individual loss than that this court should declare an erroneous ruling, the evil consequences of which cannot be well foreseen.
The case is affirmed.