Stone v. Rice
58 Ala. 95
Ala.
1877
Check Treatment
MANNING, J.

Appellee, plaintiff in the Circuit Court, sued appellants and recovered of them the value of a box of goods shipped from Mobile to him at Gore’s Landing, on the Tombeckbee river, by their steamboat, the Clara. _ Plaintiff, who lived four and a half miles from the landing, in the interior, ordered the goods by letter on the 15th of April, and they were shipped on the 12th of May following. In the meantime, on the 18th of April, heavy rains had caused an *97inundation of tbe banks at Gore’s Landing, by which the warehouse and other buildings there were carried away, and the building in which the warehouse-keeper lived was undermined and made uninhabitable. No other house was in view from the landing, or was nearer to it than half a mile. The landing was in fact abandoned, there being no person staying there to receive or take care of goods that might be left thereat. Another landing was afterwards established at a distance of about half a mile higher up the river; though, this was done after the Clara went up on the occasion when she carried the goods in controversy. The condition of the place, known as Gore’s Landing, and the effects of the freshet there, were obvious when, in open day, the Clara arrived ; but she had not before been up the river after the freshet on the 18th of April.

According to the bill of lading, the box of goods was to be delivered to the plaintiff, H. A. Eice, or his assigns, at Gore’s Landing, freight having been paid by the shipper. On approaching the place, the boat’s “whistle was blown and the bell rung, and the boat landed and put off said box of goods, more than ten feet perpendicular above the surface of the water; and the river was falling at the time. This box was put off at the landing, as other similar freight had been put off for this plaintiff before the freshet, time and time againbut on such occasions previously, there was a warehouse-keeper there “who kept the landing as a public landing, and who received pay from plaintiff and others for his services as such warehouseman, and received and stored plaintiff’s goods landed there before said freshet. The evidence tended to show that the box of goods was stolen and lost to plaintiff.”

The question presented for decision is, whether defendants might exonerate themselves from liability by proving that this mode of putting off freight at the landings on the river and at Gore’s Landing, whether there was any person present to receive it or not, was in accordance with the custom and usage of river steamboats in delivering goods shipped by them for such landings ?

We have no doubt that there are cases in which a delivery of goods not to the consignee thereof, or according to the letter of a bill of lading, may be shown to be in accordance with an established custom, and therefore valid. Many precedents of this kind are to be found in the books, and steamboats that ply on rivers in a sparsely peopled country, could not carry on their business, advantageously to the community, or for their owners, if they must, whenever they have goods for persons in the interior, to be delivered at *98landings along the river, wait until the consignees shall come or send in to receive them. And in such circumstances, it will doubtless happen that customs will grow up by usage which may be considered as entering into and modifying, to some extent, the contracts with such common carriers for the transportation and delivery of goods. Doubtless a deposit, sanctioned by usage, of the goods in question on the river bank, at Gore’s Landing, within view of, and where they could be protected by the warehouseman, whether so protected in fact or hot, would have been good.

But no custom, if it were possible for such a custom to grow up, could be upheld as reasonable, which would justify a steamboat carrier, who had goods consigned to a person at a particular landing on the river where there was a warehouse and a warehouse-keeper, who usually received and took care of goods landed there for the consignee, — in putting out such goods on the river bank without any protection, when the landing had, in the meantime, been broken up by an inundation and the washing away of the buildings and a removal of the persons that constituted it a landing.

All the assignments of error in this case are founded on the maintenance of the contrary of this proposition, and are, therefore, not well taken.

Let the judgment of the Circuit Court be affirmed.