Opinion
6 Div. 946.
October 8, 1931.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
Cabaniss Johnston, of Birmingham, for appellant Inland Waterways Corporation.
Stokely, Scrivner Dominick Smith, of Birmingham, for appellant Southern Ry. Co.
It was error to instruct the Jury that, if either of the connecting carriers was guilty of negligence proximately resulting in the injuries complained of, the jury must return a verdict against both defendants. L. N. R. Co. v. Strickland, 219 Ala. 581, 122 So. 693; I. C. R. Co. v. Nance, 16 Ala. App. 569, 80 So. 143; San Antonio Southern R. Co. v. Burd (Tex.Civ.App.) 246 S.W. 1060; 10 C. J. 544; Knapp v. Minneapolis, St. P. S. S. M. R. Co., 34 N.D. 466, 159 N.W. 81. The mere fact that the iron in four of the cars was marked with white paint and that in the other was marked with red did not cast upon the connecting barge line the duty to transport each four-carload lot separately from the other contrary to the usual custom unless the shipper notified the connecting carrier that such handling was desired, or the initial carrier so notified the connecting carrier by special notice or notation upon the waybills covering the shipment. 10 C. J. 537, 390; Southern R. Co. v. Renes, 192 Ala. 620, 68 So. 987; Mt. Vernon R. Co. v. A. G. S. R. Co., 92 Ala. 296, 8 So. 687; Colfax Mt. Fruit Co. v. Southern Pac. Co., 5 Cal. Unrep. Cas. 527, 46 P. 668; Chartrand v. Southern R. Co., 85 S.C. 479, 67 S.E. 741. Where two parties are sued jointly, each count must declare against each of the defendants jointly. If some counts declare against them jointly and other counts declare against some defendant separately, this is a violation of a fundamental rule of action and procedure at law. McMahen v. W. N. Tel. Co., 209 Ala. 319, 96 So. 265; Ader v. Blaw, 241 N.Y. 7, 148 N.E. 771, 41 A.L.R. 1223, 1224, note. It is a presumption of law that, on delivery of goods to a common carrier, the title thereto vests in the consignee. Consequently the consignor cannot be injured by failure of the carrier to perform its common-law duty, and the consignee or owner alone may maintain an action. 4 R. C. L. 943; Capehart v. Furman F. I. Co., 103 Ala. 671, 16 So. 627, 49 Am. St. Rep. 60; L. N. R. Co. v. Sarris Collas, 209 Ala. 903, 95 So. 203; Code 1923, §§ 10010, 10043.
Luther B. Bewley, Kingman C. Shelburne, and Bradley, Baldwin, All White, all of Birmingham, for appellee.
A common carrier, either initial or terminal, must deliver goods accepted by it for transportation to the consignee according to the shipping contract and in the same condition as when such goods were delivered to it for transportation, so that the consignee may identify them. 10 C. J. 248; 4 Elliott on R. R. (2d. Ed.) § 1521; Galveston, H. S. A. R. Co. v. Crow (Tex.Civ.App.) 117 S.W. 170; The Augusto (D.C.) 29 F. 334; Rice v. Boston R. Co., 98 Mass. 212; Bradley v. Dunipace, 158 Eng. Rep. 990; Cohen Co. v. Director General of Railroads, 247 Mass. 259, 142 N.E. 75; Eaton v. Newmark (D.C.) 37 F. 375. When it is shown that the goods were not delivered to the consignee in the same condition as when delivered to the carrier, the plaintiff makes out a prima facie case, and the burden is on the carrier, initial or terminal, to show that the damage did not occur while in its possession. Am. Ry. Exp. Co. v. Dunnaway, 207 Ala. 392, 92 So. 780; A. C. L. v. Maddox, 210 Ala. 444, 98 So. 276; Southern Exp. Co. v. Saks, 160 Ala. 621, 49 So. 392; L. N. R. Co. v. Cheatwood, 14 Ala. App. 175, 68 So. 720; Central of Ga. R. Co. v. Goodwater Mfg. Co., 14 Ala. App. 258, 69 So. 343.
Counsel contend that the trial court erred in not sustaining the demurrer to the complaint, because one of the counts claimed against the Southern Railway alone, while the other four counts were against the two appellants jointly. It is sufficient to say that, whether this was or was not a fatal defect, it was not specifically pointed out by demurrer. The only grounds of demurrer bearing on the question are 20 and 21, and which are too general. Central of Georgia Railway Co. v. Joseph, 125 Ala. 313, 28 So. 35.
The plaintiff shipped through the Southern Railway a shipment or shipments of eight cars of pig iron. Four cars contained the pigs marked with "red" dots, and the other four marked "white" dots for the purpose of classification. The defendant issued two separate and distinct bills of lading, one for the four cars dotted "red," and one for the four cars marked "white," therein designating the marks as to the respective shipments and thus, in effect, treating the four cars containing the iron marked red as one shipment, and the four marked white as another. This was, in effect, an undertaking upon the part of said Southern Railway to carry and deliver the shipments separately, and to not permit a confusion or commingling of the articles so shipped while in transit. If the articles were so commingled and confused before delivery as to entail a reasonable expense for assortment, the initial carrier would be answerable whether the commingling occurred upon its line or a connecting one, so there can be no question as to the liability of the Southern Railway.
The plaintiff, however, has sued the Inland Waterways Corporation jointly with the railroad, upon the theory that the injury or damage occurred on its line and, being a connecting carrier, it was bound by the contractual obligation of the initial carrier, the Southern Railway. It seems well settled by the decisions of the United States Supreme Court, in construing the Carmack Amendment (49 USCA § 20) and of our court, in construing our statutes, sections 10043-10045 of the code of 1923, making the Carmack Amendment applicable to intrastate shipments, that the connecting carrier is bound by the valid terms of the original bill of lading; and the connecting lines become, in effect, mere agents whose duty it is to forward the goods under the terms of the contract made by the principal, the initial carrier. Louisville N. R. Co. v. Strickland, 219 Ala. 581, 122 So. 693; Missouri, Kan. Texas R. Co. v. Ward, 244 U.S. 383, 37 S.Ct. 617, 61 L.Ed. 1213; Texas P. R. Co. v. Leatherwood, 250 U.S. 478, 39 S.Ct. 517, 63 L.Ed. 1096. Therefore, it would seem that as between this shipper and the Inland Waterways Corporation the latter undertook to perform the obligation of the Southern Railway as per the terms of the bill of lading, whether receiving special instructions from the railroad or not. Though, as between the two carriers, it might be a good defense that the railroad failed to apprise the Inland Corporation, by the waybill or otherwise, of its obligation to keep the iron separate and to prevent a commingling of same.
We do not think, however, that the fixation of a joint liability and the right to sue the carriers jointly would authorize a judgment against a connecting carrier for something that did not occur on its line. The initial carrier is liable throughout, but the connecting carrier, while assuming the same obligations as the initial one as to the terms and conditions of the shipment so long as it handles the same, cannot be held liable for breaches or torts not happening upon its line. In other words, if the iron was not commingled when handled by the Inland Corporation, it would not be liable, and the trial court erred in so much of its oral charge that instructed to the contrary, and in refusing the Inland Corporation's requested charge 6. Nor can this ruling be excused upon the theory that the undisputed evidence showed that the commingling occurred when in the hands of the Inland Corporation. The weight of the evidence may have been to this effect, but there was sufficient evidence to make this question one of fact for the jury. Cooper testified that the iron was mixed when the barge reached Mobile, but McCormick, the then foreman of the Inland Corporation, testified to a separation of the iron in loading the barge, and showed that it was loaded in such a manner as to create a reasonable inference for the jury that it did not become commingled while in transit.
There is no merit in the contention that this action cannot be maintained by the consignor holder of the bill of lading, but only by the consignee. Section 10043 of the Code of 1923, Louisville N. R. Co. v. Strickland, supra; Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314, 44 L.R.A. (N.S.) 257.
The trial court did not commit reversible error in ruling upon the evidence of the witness Taylor, as to the amount paid for assorting the iron upon final destination. The defendant would only be liable for the reasonable cost or value for doing so, regardless of what was paid, and the witness further testified, as an independent fact, that the amount so paid, $201.60, was fair and reasonable.
We find no reversible error in the rulings of the trial court as to the Southern Railway Company, and the judgment against this defendant is affirmed. For the errors pointed out as to the Inland Corporation, the judgment against said defendant is reversed, and, as to it, is remanded. Spencer v. Blanke Mfg. Supply Co., 220 Ala. 350, 124 So. 904; Tullis v. Blue, 216 Ala. 577, 114 So. 185.
Affirmed in part, and reversed and remanded.
GARDNER, BOULDIN, and FOSTER, JJ., concur.