Southern Railway Co. v. Webb

143 Ala. 304 | Ala. | 1904

TYSON, J.

This action is for the recovery of damages for it-he breach of a contract of affreightment -for a car of hogs received by defendant at Paint Rock, in this State, to he transported by it to Atlanta, Georgia, and there delivered by it to Askew & Mixon, to whom it is alleged the hogs were consigned, as plaintiff’s agents.

The special breach alleged in the second count of the complaint is, that the defendant failed to deliver the hogs to the consignees, but delivered them to another and different person, to-wilt; Brady Union. .Stock Yards. The damages, sought to he recovered under this count, were charges, amounting to $73.62, exacted by the Brady Union Stock Yards of plaintiff, before he could regain possession of his hogs, the loss -in the weight of the hogs, and the decline in their market price during their detention, expenses incurred by plaintiff in making a trip to Atlanta to regain their possession, and counsel fees for bringing this action.

' The trial court, it appears, allowed a recovery of all 'these damages, except for counsel fees and a decline in the market price of the hogs. .

It is first insisted by the Bailway Company that under the contract of affreightment which is in writing, no recovery can.or ought 'to be allovred, and, therefore, the affirmative charge requested by it should have been given. Preliminary to a discussion of this question, it may be Aveli to say that the evidence tends to support each claim for damages- Avhich the plaintiff was permitted to recoArer, and, as Ave Avill show later on, a breach of the contract.

The case of N. C. & St. L. Ry. Co. v. Parker, 123 Ala. 683, is relied upon as authority in support of the contention That no recovery can be had on the first count of the complaint, Avhich is in Code form, because the evidence. shows a special contract, Avliereas a common liability is counted on. This case was overruled on this point by L. & N. R. R. Co. v. Landers, 135 Ala. 504, where it was held that the Code form Avas broad enough to cover bills of lading containing special stipulations. It can scarcely be doubted that a recovery may be had on this count, for at least nominal damages, if a breach of the contract Avas shoAvn, and indeed there is no good reason Avhy the damages resulting in the decreased Aveight of the hogs and their market value during their detention may not be recovered under it, unless by the terms of the contract their market price was to be determined at Paint Bock instead of Atlanta, which will be discussed when Ave consider the plaintiff’s assignment of error.

Was there a breach of the contract shown? The bill of lading designated Askew & Mixon as the consignees; the hogs wore admittedly not delivered by defendant to [hem, but to the Brady Union Stock Yards. The way-bill showed them to- be consignees, and also-showed the words “Union Stock Yards” written in pencil below the names and address of the consignees, which appears to have been construed by the agents of defendant as directing their delivery of ¡the hogs to the Union Stock Yards for the consignees. After the contract of affreightment was executed, it appears that one Robinson, who signed it for plaintiff, and to whom it was delivered for plaintiff, directed the words “Union Stock Yards” to be written on the way-bill. It is, therefore, insisted that Robinson, being the agent of the plaintiff to deliver the hogs for shipment, was authorized to change the contract of affreightment and to direct their delivery to the “Union Stock Yards.” Robinson is shown affirmatively and without dispute not to have any such authority. Plaintiff had, in a letter- to the agent, directed to whom they were to be assigned. The contract was written, signed and delivered, in accordance with his directions. Robinson was not his agent to make any contract for their shipment at all. His duties were simply to drive the hogs to Paint Rock and put them into the car, which he had previously ordered. It is true he signed the plaintiff’s name to the contract, but this was without authority. But the plaintiff, having received the contract, must be held to have ratified his act in this respect, but not to have ratified its modification, which did not appear* upon it, but only on the way-bill, which the plaintiff never saw. Nor was it otherwise shoivn that plaintiff knew of the change of the contract, when he received it from Robinson. At best, Robinson, under the evidence, was a special agent, and the defendant was bound at its peril to ascertain the extent of his.authority. 3 Brick. Dig. p. 22, § 54.

Robinson being without authority to change the contract of affreightment, as to the delivery of the hogs, a breach is shown. For undoubtedly the defendant was under as much obligation to deliver the hogs to the right person, as it was to deliver them in a reasonable time arul at the proper place. And the delivery by it of them to the wrong person was a conversion. The question is not one of due care, for the carrier, like any other bailee, acts at his peril in making the delivery. — Angell on Cartiers, § 324; Wood’s Brown on Carriers, p. 319; 6 Cyc. p. 472.

“No circumstances of fraud, imposition or mistake will excuse the common carrier from responsibility for a delivery to the wrong person. The law exacts of him absolute certainty that the person to whom the delivery is made is the party rightly entitled to- the goods, and puts upon him the entire risk of mistakes in this respect, no matter for what cause occasioned, however' justifiable the delivery may seem to have been, or however satisfactory the circumstances or proof of identity may have been to his mind; and no excuse has ever been allowed for a delivery to a person for whom the goods' were not directed on consignment.” — Hutchinson on Carriers, 344.

In the case of North Penn. R. R. Co. v. Commercial Bank, 123 U. S. 727, the Court, speaking to the point here under consideration, said: “The duty of a common carrier is not merely to convey safely the goods intrusted to him, hut also to deliver them to the party designated by the terms of the shipment or to his order, at the place of destination. There are no conditions which would release him from this duty, except such as would also release him from the safe carriage of the goods. The undertaking of the carrier to transport goods necessarily includes the duty of delivering them. A railroad company, it is true, is not a carrier of live stock with the same responsibilities which attended it as a carrier of goods. The nature of the property, the inherent difficulties of its safe transportation and the necessity of furnishing to the animals food and water, light and air, and protecting, them from injury to each other, impose duties in many respects widely different from those devolving upon a mere carriel" of goods. The most scrupulous care in the performance of his duties will not always secure the carrier from loss. But. notwithstanding the difference in duties and responsibilities-, the railroad company, when it undertakes generally to carry such freight, becomes subject, under similar conditions, to the same obligations, so far as the delivery of the animals which are safely transported is concerned, as in the ca,se of goods. They are to he delivered at the place of destination to the party designated to receive them if he'presents himself, or can with reasonable efforts he found, or to his order. No obligation of. the carrier, whether the freight consiste of goods or live stock, is more strictly enforced. * *. * *. If the consignee is absent from the place of destination or cannot, after reasonable inquiry, he found, and no one appears to represent him, the carrier may place the goods in a warehouse or store with a responsible person, to he kept on account;, of and at the expense of the owner. He cannot release himself from responsibility by abandoning the goods or turning them over to one not entitled-to receive them. * * * Diligent, inquiry for the consignee, at least', was a duty and no inquiry was made. Want of notice is excused when the consignee is unknown or is absent, or cannot be found after diligent search. And if, after inquiry the consignee * * cannot be found, the duty of the carrier is to retain the goods until they are claimed, or to store them prudently for and on account of their owner. He may thus relieve himself from the carrier’s responsibility. I-Ie has no right under any circumstances to deliver to a stranger.”

This quotation so satisfactorily announces the principle of law applicable to facts of the case, it would seem to-be useless to pursue this phase of the inquiry further.

But it is said that, by the terms of the contract, it was plaintiffs duty to accompany the hogs and unload them upon their arrival at Atlanta, and, had he complied with his? duty in this respect, there would have been no misdelivery. This provision of the contract did not put upon plaintiff the obligation of seeing that the hogs were delivered to the consignee and not to a stranger. The obligation of defendant to deliver to Askew & Mixon was absolute, and not conditioned upon plaintiff accompanying the car.

I't is also urged that the defendant was entitled to- retain the hogs until the freight ivas- paid upon them. This is undoubtedly true, but it did not retain them, but converted them.

A mere reading of the clause of the contract, relating to the plaintiff giving notice of his claim before bringing-suit, will suffice to show that it was- not intended to apply and does not apply to- the claim for damages sought to be enforced here.

The affirmative charge requested by defendant ivas properly refused.

The next contention is, that the $73.62, paid by plaintiff to Brady Union Stock Yards, were not recoverable damages. There is no merit in this insistence. They are claimed in the complaint and the evidence tends to show that plaintiff paid the sum and that its payment was necessary to regain the possession of his- property, which defendant had to-rtiously delivered to- that concern. That they were proximate, and not remote, is practically admitted. — Renfro v. Hughes, 69 Ala. 581.

We are of opinion, however, that the expenses incurred by plaintiff, on his trip to Atlanta, are not recoverable. They are not the proximate or natural consequence of the breach of the contract. — Jackson v. Smith, 75 Ala. 97; Foster v. Napier, 74 Ala. 393. The allowance of a recovery of them by the court as damages is error for which the judgment must be reversed.

The plaintiff also prosecuted an appeal from the judgment and insists that error was committed in not permitting him- to show that, during the period of detention of the hogs at the Brady Union Stock Yards, their market price in Atlanta had declined from 1-2 to 3-4 of a cent per pound. This evidence shows that there had been no change in the market price of hogs at Paint Bock, the point, of shipment, and that the hogs were shipped by plaintiff to his brokers, Askew & Mixon, for sale on the Atlanta Market. The breach of the contract by defendant, as we have; shown, occurred in Atlanta, and not in Paint Book. The contract of affreightment contained this clause: “And it is further agreed that, should damage occur for which the company may be liable, the value at the place and date of shipment shall govern the settlement, in which the amount claimed shall not exceed * * for hogs $5.00 each.”

Doubtless the ruling of the court was based upon this clause of the contract, which was construed by him to change the common law rule fixing the measure of damages in this character of cases. Obligations of this kind are strictly construed against the carrier, and, unless the language employed is so definite and certain as to leave no room for the operation of the common law rule, that construction will not he adopted. In other words, it must clearly appear that it was the intention of the parties that the rule of the common law was not to govern in ascertaining the damages suffered by plaintiff, but that the one fixed by the contract Ava.s to control. Whatever may be the field of operation of this clause of the contract, Ave are confident that it has no application to the facts of this case. It would seem that its purpose is merely to fix the maximum value of the live stock named in it to be paid by the carrier in the event they are destroyed in transportation through its negligence: The

.judgment must he reversed on both appeals.

Reversed and remanded.

MoOeeeean, (•. J., Simpson and Anderson, J.J., con- . enrring.