Southern Railway Co. v. Jones, 132 Ala. 437

Southern Railway Co. v. Jones

132 Ala. 437 | Ala. | 1902

McCLELLAN, C. J.

(1) It is conceived to be settled in Alabama on principles of public policy that a common carrier cannot contract at all for immunity from liability for the; loss of or injury to- property re-*441suiting from his own or his servant’s negligecne. (2) It is conceived to be settled in this State also that in consideration of reduced freight charges and the like, the shipper and the carrier may contract that in case of loss or injury, whether resulting from negligence or other cause, the value of the property at the time and place of shipment not exceeding an expressed sum shall be the measure of recovery. And (3) it has also been declared by this court that under such contract recovery avüI be limited to the sum so expressed unless the real value of the property is greatly disproportionate thereto — so much greater than the stipulated maximum of value and liability as to render the contract unreasonable, and, therefore, not binding on the shipper. We have no doubt of the correctness of the first proposition. Of the soundness of the second the writer lias always had the gravest doubts. Indeed, if it were an open question he should adopt the views expressed in the dissenting opinion of Manning, J., in South & North Ala. Railroad Co. v. Henlein, 52 Ala. 606, 616. He does not see how this proposition can logically stand with the first stated above. But conceding it to be settled, the limitation upon it embraced in the third proposition shears it to' a large extent of its evil tendencies and possibilities, and brings the law back toward the salutary and true doctrine that common carriers cannot stipulate, under any circumstances, against liability for the consequence of their own negligence; and we are of opinion that while under our adjudications the carrier in consideration of reduced freight charges may agree with the shipper that in case of loss or injury the recovery shall be limited to a valuation of the property expressed in the bill of lading and that such agreement Avill be enforced by the courts when such valuation is not greatly beloAv the real worth of the property, such agreements will not be countenanced or given effect if they are unreasonable —if they limit damages for loss or injury to an amount greatly less than the damages in fact sustained. It is plain that this doctrine must be rested upon the same ground that underlies the original proposition forbid*442ding agreements against liability for the results of negligence, public policy. And in determining whether a stipulation is void as being against public policy there is no room for inquiry into the knowledge, information or intention of the parties. The question is not what the parties knew or intended but what is. the effect of the stipulation, not whether the parties intended evil or knew their act was hurtful to the public, but whether to allow and uphold such contracts would be fraught with wrong and injury to the people of a character from which it is the province and duty of government to protect them. So* it is immaterial when a carrier has stipulated for a limitation of damages resulting from his negligence to a greatly disproportionately small valuation of the property carried whether he knew or was informed of its real value or not. It is against the public good in respect of a matter of governmental concern that he should be allowed to make such stipulation under any circumstances; and to allow it to stand in any instance or upon any consideration would be to emasculate the principle of public policy obtaining in the premises and to leave the public exposed to all the uncertainties incident to inquiries into what carriers intended, or knew or had been informed as to the real value of property transported by them.

The application of the foregoing views to the case in hand brings us to the conclusion that the trial court did not err in overruling the demurrer to the replication to the fourth plea, nor in those parts of the general charge to which exceptions were reserved, nor in refusing to give charges 2, 3 and 6 requested by the defendant.

It is stated in the bill of exceptions that “defendant requested the court to give the following written charges, numbered 1, 2, 3, 5, 6, 7 and 8, namely':” Here charges 1, 2, 3, 5 and 6 are set out, but not 7 and 8, nor any other charge. The bill of exceptions concludes: “But the court refused to give each of said written charges,” etc., etc.- As part of the record proper of the trial court, under the heading, “Defendant’s refused charges,” seven charges are copied into the transcript, *443each indorsed, “Refused. A. A. Coleman, J.” These are not numbered, hut the first five of them severally are the same as the five charges which appear in the hill of exceptions. The remaining two, we suppose, are the charges referred to in the hill of exceptions as charges 7 and 8. But whether these two charges are sufficiently identified as being those numbered 7 and 8 referred to. but not copied in the bill of exceptions, is not material.’ Not being copied in the bill of exceptions the ruling of the court upon them cannot be reviewed. — Nuckols v. State, 109 Ala. 2.

This is an action ex delicto sounding in damages for an injury to plaintiff’s horse tortiously inflicted by defendant’s servants. Any person proximately injured by the commission of a tort may maintain an action for the wrong and injury. True, there was averment that the defendant undertook as a common carrier to transport the horse from Anniston to Birmingham, and there ivas proof that this undertaking was under a contract made by defendant with one Boam who was in possession of the animal as bailee of plaintiff and who was both consignor and consignee. But all this went merely to show that defendant was under a duty to exercise due care in carrying the animal as a predicate for the conclusion in connection with averment and proof of its failure to exercise due care—its negligence —that it had tortiously injured the horse, and thereby damaged its owner, the plaintiff. And the action was in no sense upon the contract between defendant and Boam, but was for a wrong and injury done to the plaintiff by the defendant, one element of which was that defendant had possession of plaintiff’s property under circumstances which imposed upon it the duty of conserving its safety and well-being. There is, we therefore conclude, no merit in the tentative insistence of appellant’s counsel that the owner of the property could not recover for defendant’s negligence because the animal was being carried under a contract with Boam and defendant had no notice that Boam was acting for the plaintiff.

*444The points to which we have adverted are the only ones discussed in the brief for appellant.

Affirmed.