Opinion
6 Div. 636.
April 20, 1922.
Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.
Stokely, Scrivner Dominick, of Birmingham, for appellant.
An illegal contract cannot be enforced, and there can be no action thereon. 13 C. J. 493; 177 Ala. 313, 58 So. 193; 51 So. 608; 158 Ala. 117, 48 So. 345; 73 Ala. 200, 49 Am.Rep. 48. The use of a free pass by one to whom it has not been issued, or an attempt to use it to transport the property of another, is illegal. Acts 1907, p. 105.
Black Harris and T. E. McCullough, all of Birmingham, for appellee.
The law will not undertake to determine the adequacy of the consideration sufficient to support a bailment for hire. 106 Ala. 340, 17 So. 449, 28 L.R.A. 716; 116 Ala. 520, 22 So. 976. The one undertaking is held to such a degree of care in the business as in fact he undertook to bestow. 5 Ala. 114, 14 Ala. 249, 48 Am. Dec. 97; 92 Eng. Rep. 107; 6 So. 762. The defendant could not limit its liability arising out of its own negligence. 37 Ala. 247, 79 Am. Dec. 49; 146 Ala. 412, 41 So. 752, 8 L.R.A. (N.S.) 369, 119 Am. St. Rep. 41, 9 Ann. Cas. 1143; 5 Ala. App. 596, 59 So. 670. Nor can liability be escaped because a stranger or a third person violated or intended to violate the law. 124 Ala. 580, 27 So. 416; 180 Ala. 489, 61 So. 372.
This case went to the jury on count 4 of the complaint. The objection to this count, taken by demurrer, is that, since defendant held plaintiff's trunk for less than 24 hours, for which time no charge was made, defendant was a bailee for the benefit of the bailor only, was bound to exercise slight diligence only, and was therefore answerable for gross negligence only, and the complaint exacted too high a degree of care. We think the count is not open to this criticism even though "negligently" were construed as defendant (appellant) seems to construe it. Enough appears on the face of the count — pretermitting consideration of defendant's relations with carriers, which is left to inference — to disclose a contingent benefit, to accrue to the bailee, sufficient to charge defendant as upon a lucrative bailment. Prince v. Ala. State Fair, 106 Ala. 340, 17 So. 449, 28 L.R.A. 716. Defendant best knew what care it had taken of plaintiff's property, and an allegation that it had negligently failed and refused to deliver on demand was sufficient. Leach v. Bush, 57 Ala. 145; Seals v. Edmondson, 71 Ala. 509.
It is enough to say of defendant's special plea 6 that defendant could not by contract relieve itself of its common-law liability for its own negligence. 6 C. J. 1112; A. G. S. v. Thomas, 83 Ala. 343, 3 So. 802; Gen. Acts 1915, p. 710, § 3. Herein we assume that defendant was engaged in a public business, connected with the common carriage of passengers, and hence not controlled by the authority of Seals v. Edmondson, supra, on this point.
Defendant's special plea 9 was insufficient because the facts therein alleged do not show a fraudulent imposition on defendant of a contract contrary to the rule of its business, and, in any event, the facts alleged do not suffice to relieve defendant altogether of the duty to account to plaintiff for her property, as the plea purports to do. It will hardly be contended that, because plaintiff expected or intended to get her trunk transferred by the railroad as the baggage of another who expected or intended to ride on a pass which had expired, defendant was relieved of all duty to account to plaintiff for her trunk. Such consequence could hardly be attached to an abortive intent to commit fraud on plaintiff's part. And yet such is the purport of this plea. We assume that the trial court sustained some such objection to the plea; the grounds of the demurrer not being set out in the record.
Plaintiff was entitled to the general charge against plea 7 for the reason that there was no evidence to sustain the allegation that defendant received plaintiff's trunk "to be transported * * * upon a pass for free transportation," said pass providing that "there should be no liability for the loss of any property transported under said pass," nor was there any evidence that plaintiff's trunk was lost in transportation. Like considerations dispose of the assignment of error based upon the giving of the general charge against a verdict for defendant on plea 2.
There was no evidence going to show that plaintiff's trunk ever came within the rule set up in plea 4 limiting liability to $100 in the event the owner declared no greater value upon delivery to the carrier. When plaintiff or her agent applied for the trunk in order to have it delivered to the carrier for transportation, it had been lost already. In other words, charge 2, requested by defendant, was a mere abstraction, and there was no error in its refusal. Nor was there any evidence in support of charges 3, 4, and 5, refused to defendant.
The general charge on the whole case was properly refused.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.