Barron v. Mobile & Ohio Railroad

db GRAFFENRIED, J.

The plaintiff in the court below brought this action against the Mobile & Ohio Railroad Company to recover damages for failure to safely transport and deliver to J. R. Perkins Lumber Company, at Cairo, 111., a car of lumber. It was uncontroverted that this car of lumber was delivered by the plaintiff to the defendant, as a common carrier, at Brent, Bibb county, Ala., for delivery at Oairo. Upon receipt of this shipment, the transportation company executed and delivered to the consignor its through bill of lading. It was also an admitted fact that this car of lumber was never delivered, and never in fact reached the point of destination. The lumber was destroyed by fire, in the burning of the plant of the Harder planing mill at Tuscaloosa, Ala.

While the first count of the complaint, as copied in the transcript, is scarcely intelligible, yet the second count is in Code form for suits on bills of lading. There is in this count the averment that the “said shipment was made under a contract in writing issued to the plaintiff by the defendant.” This additional averment, however, adds no particular force to the count, as the general form given in' the Code is applicable to cases where there is a special contract, as well as in cases where no such special contract exists.

The defendant filed to these counts four special pleas, and also the plea of the general issue. Demurrers to each of the special pleas Avere interposed by the plaintiff. The court, we assume, upon the theory that the defendant failed to aver its freedom from fault or negligence in the matter of the destruction of the lumber in question, sustained the demurrer directed to pleas 2 and 3. Pleas 1 and 4 contained such an averment, and the demurrer thereto Avas overruled.

The appellant’s contention is that the appellee issued to him a bill of lading which, while containing certain clauses exempting it from liability in certain contingencies, did not in fact contain any clause exempting the defendant from liability on account of the particular loss in this case; or that, if there was any such saving clause, the defendant nowhere in his pleas set up this particular clause by way of its defense to this suit, and on account of this supposed defect counsel for appellant insist in argument that the special pleas were defective and obnoxious to the particular demurrer interposed thereto. This ruling of the court is made the basis of appellant’s first assignment of error.

1.' In this jurisdiction, it is a general rule of law, firmly settled, long maintained, and well understood, that the undertaking of a common carrier to transport to a particular destination goods committed to it, uninfluenced by special contract, is one of insurance against every loss or damage, except such as may be occasioned by the act of God, or the public enemy, or by the fault of the owner or his agent. The shipper makes out a prima facie case against the carrier when he shows the goods were not delivered; and, in order for the carrier to relieve itself of the absolute liability for their loss as an insurer, it must bring itself within the exception relied upon as an excuse for its failure to deliver.—A. G. R. R. R. Co. v. Quarles, 145 Ala. 436, 40 South. 120, 5 L. R. A. (N. S.) 867, 117 Am. St. Rep. 54; A. G. R. R. R. Co. v. Elliott & Son, 150 Ala. 381, 43 South. 738, 9 L. R. A. (N. S.) 1264, 124 Am. St. Rep. 72; Grey’s Err v. Mobile Trade Co., 55 Ala. 387, 28 Am. Rep. 729.

It is also well settled that the'carrier may, within the limits allowed by public policy and considerations of right and justice, by special contract, limit and qualify its liability as an insurer of the goods.—L. & N. R. R. Co. v. Oden, 80 Ala. 38, 43. The appellee concedes the general rule to be as above announced. The appellant, while recognizing the right- of the carrier to thus limit its liability, invokes the general rule, first stated, as conclusive of all the issues — law and fact— in this case.

2. The defendant, bv its two special pleas, admitted that it received the lumber for transportation to Cairo, 111., and admitted that the lumber was never delivered at that point. The defense set up was that “the lumber was received for transportation upon the express, agreement that the carrier would temporarily surrender the possession to the plaintiff or its agent at the Harder planing mill, near Tuscaloosa, Ala.., for the purpose of having same dressed;” and it was averred that, in compliance with said agreement, the defendant delivered said lumber to the plaintiff or its agents at the said Harder planing mill, and that while it was in the plaintiff’s possession, or the possession and control of his agents, the same was destroyed by fire, without any fault on the part of the defendant. While the defendant, in the absence of some special contract limiting and qualifying its common-law liability, is an insurer of the goods to the point of destination, and until the consignee has had a reasonable time in which to remove the goods, yet this rule necessarily contemplates that, after the goods are once committed to the carrier, Its possession and control continues over every mile of the route, and during every hour of the time, until the arrival of the goods at. the point of destination. We know of no rule of law and no principle of public policy, and our attention has been called to none, which would hold the carrier an insurer while the goods, by some agreement with the owner, are temporarily out of the possession or control of the carrier, and while the same are actually in the possession of the owner, or some one as his agent. Under the averments of the special pleas, the lumber was neither actually nor constructively' in the 'possession of the defendant at the time of the burning, but it was at that very moment of time in the possession of the Harder planing mill, and the possession of the latter was the possession of the plaintiff. It-must follow, therefore, that, at the time of the destruction of the lumber, the rule making the carrier an insurer of the goods, in the absence of some special contract, finds no real application to the- facts in this case. The pleas, expressly aver that the loss was without fault on the- park of defendant; and, under our view of the law, -they-were not, subject to the demurrer interposed, and the court properly overruled the same. Grey’s Ex’r v. Mobile Trade Co., supra.

3. Issue was joined on pleas 1, 4,. and 5. The bill of lading covering the shipment in question- was identified, and offered in evidence by the plaintiff.- In the body of this contract were the words and letters, “1 Car of Pine Lumber, O/O. Harder for dressing.” The plaintiff, testifying as a witness in his own behalf, was asked by the defendant the question : “What does this notation on bill of lading mean: ‘0/0 Harder for dressing, Tuscaloosa, Alabama?’ ” The plaintiff objected to the question on numerous grounds;-among them, the objection that the question sought to vary by parol the bill of lading. There was no merit in the. objections assigned. The terms- employed were technical and not of familiar or general use, and the court properly required the witness to answer the question—Mouton v. L. & N. R. R. Co., 128 Ala. 537, 545, 29 South. 602.

We fail to find any error in the ruling of the court upon the .objection to the question propounded to the plaintiff as a witness, touching the-general custom in shipping lumber when dressing in transit arrangements were allowed. The terms ol‘ a written contract, when-fully set forth, and the obligations assumed thereunder cannot, as a matter of course, be varied by proof of a custom; nor can a carrier, when otherwise liable under his undertaking, avoid liability by parol evidence of a custom which is in opposition to the established -principles of law. But in all contracts “as to the subject-matter of which known usages prevail; parties are supposed to proceed with the tacit assumption of these usages; and parol evidence of custom and usage is always admissible to enable the court to arrive at the real meaning of the parties, who are naturally presumed to have contracted in conformity with this known and established usage.”—Boon & Co. v. Steamboat Belfast, 40 Ala. 184, 186, 88 Am. Dec.. 761. In the instant case, there was no attempt to vary the written contract by proof by parol of a custom established at Brent, Ala. We fail to see that appellant was injured in any way by his answer to the question objected to, and for this reason, also, this assignment of error is unayailing'toreverse the case.

The several questions asked the'witnesses by the defendant as to the possession of the - lumber, after the some was delivered to the Harder planing mill were unobjectionable. Possession is a collective fact, and not an opinion or conclusion; and it was therefore competent for the witness to state who was in possession of the lumber at the time it was burned.—Wright v. State, 136 Ala. 139, 145, 34 South. 233; Higdon v. Kennemer, 112 Ala. 351, 20 South. 470.

A number of special charges were refused to the plaintiff. We have carefully considered all of them. The plaintiff was not entitled to have the jury instructed’ in the language of any . of the-charges refused to it;. and hence the court properly declined to give the same:. Furthermore, upon a consideration of the whole evidence' in this case,- the court might have instructed the jury, upon request, with proper hypothesis, to. find for the defendant.

• The court was not in en*or in refusing to grant the plaintiff a new trial. There appearing no error in this record of which the appellant, can complain, the judgment of the lower court must be affirmed.

Affirmed.