Opinion
6 Div. 572.
April 10, 1930.
Appeal from Circuit Court, Cullman County; Paul Speake, Judge.
A. A. Griffith and F. E. St. John, both of Cullman, and Eyster Eyster, of Decatur, for appellant.
The burden of proof is upon plaintiff, as a rule, to show that there was unreasonable delay in a shipment when that is the foundation of the suit. H. J. Crenshaw Co. v. S. A. L., 219 Ala. 207, 121 So. 736; 10 C.J. 301. The burden was on plaintiff to show that the animals were in good condition when received and that they were not delivered safely and within a reasonable time. L. N. v. Smitha, 145 Ala. 686, 40 So. 118; L. N. v. Strickland, 219 Ala. 585, 122 So. 693. And, also negligent failure to place the cars. A. C. L. v. Maddox Co., 210 Ala. 444, 98 So. 276. The measure of damage is the difference between the market value at the time and place at which delivery should have been made and the market value when delivery was actually made. A. C. L. v. Enterprise Oil Co., 211 Ala. 677, 101 So. 605. Plaintiff must show an unusual and unexplained delay. 4 R.C.L. 916. And that such delay was the proximate cause of the alleged injury. 4 R.C.L. 744.
Julian Harris, of Decatur, and Earney Bland, of Cullman, for appellee.
The complaint is sufficient. A. C. L. v. Maddox, 210 Ala. 444, 98 So. 276. The gravamen of the complaint was unreasonable delay, and, no matter what the cause, the burden shifted to the defendant when plaintiff proved receipt by the carrier of the mules in good condition and their delivery in an injured condition. The oral charge of the court was correct. A. C. L. v. Maddox, supra; Crenshaw v. S. A. L., 219 Ala. 206, 121 So. 736.
The gravamen of count 2 is the negligent failure of the defendant to deliver the mules within a reasonable time. True, it also contains an averment of the negligent failure to place the car at the stock pen or chute within a reasonable time after the arrival at Cullman; that is, permitted the car to remain on a side track for several hours after its arrival before placing it where the mules could be unloaded. This last averment is not a new or the sole cause of action, but relates to and pertains to the charge of a negligent failure to transport and deliver within a reasonable time. We think delivery does not merely mean a delivery at the town or place of destination, but at a point where the stock could be unloaded and delivered to the consignee. Count 2 was not subject to the defendant's demurrer.
As to count 3, adopted count 2, it was to this extent not subject to the demurrers, and as the only addition thereto related to special damages this did not render the same subject to demurrer. If said damages were not recoverable, the question should have been raised by motion to strike objection to the evidence or instructions to the jury and not by demurrer. In fact, the question was raised by charges given by the trial court eliminating special damages.
There was proof of injury to the stock between the delivery to defendant at Columbia, Tenn., and the receipt of same by plaintiff at Cullman. There was also proof from which the jury could infer an unreasonable or negligent delay in delivery although the mules may have been transported from Columbia to Cullman with reasonable dispatch. When this was shown the burden was then upon the defendant to show that there was no unreasonable delay or that said delay was not the cause of injury to the mules. A. C. L. R. R. v. Maddox, 210 Ala. 444, 98 So. 276.
The trial court did not err in refusing the general charge, requested by the defendant, as to either count of the complaint. Nor was there error in so much of the oral charge as is embraced in the third assignment of error.
There was no error in the oral charge of the court as to the measure of damages, and we do not think it instructed the jury to fix the Columbia value at the time of shipment and the Cullman value at the time of delivery, and the evidence shows that the value placed on the mules before and after delivery was based on the Cullman market or prices.
The judgment of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.