Opinion
1 Div. 381.
October 15, 1925. Rehearing Denied November 12, 1925.
Appeal from Circuit Court, Monroe County; John D. Leigh, Judge.
Barnett, Bugg, Lee Jones, of Monroeville, for appellant.
The giving of charge A for plaintiff was reversible error. U.S. v. Oregon R. Co. (C. C.) 159 F. 975; Robinson v. Baltimore O. R. Co., 129 F. 753, 64 C.C.A. 281; Platt v. Lecocq, 158 F. 723, 85 C.C.A. 621, 15 L.R.A. (N.S.) 558; 10 C. J. 64; Southeastern R. Co. v. Webb, 48 Ala. 585; Tate v. Y. M. V. R. Co., 78 Miss. 842, 29 So. 392, 84 Am. St. Rep. 649; Merriam v. Hartford, 20 Conn. 354, 52 Am. Dec. 344. Defendant was entitled to the affirmative charge. Loveman Co. v. A. T. N. R. Co., 175 Ala. 316, 57 So. 817; C. of G. R. Co. v. Sigma L. Co., 170 Ala. 627, 54 So. 205, Ann. Cas. 1912d 965; M. P. v. McFadden, 154 U.S. 155, 14 S.Ct. 990, 38 L.Ed. 944; 10 C. J. 221; O'Bannon v. So. Ex. Co., 51 Ala. 481; L. N. v. Echols, 97 Ala. 556, 12 So. 304; A. G. S. v. Mt. Vernon Co., 84 Ala. 173, 4 So. 356. It was error to refuse defendant's requested charge 9. B. R. L. P. Co. v. Clark, 41 So. 829; Davis v. Russell, 52 Cal. 611, 28 Am. Rep. 647.
Reported in full in the Southern Reporter; not reported in full in 148 Ala. 673.
Hybart Hare, of Monroeville, for appellee.
Charge A was correct and properly given. Bowles v. Lowery, 181 Ala. 603, 62 So. 107; Aldrich v. Pearce, 192 Ala. 195, 68 So. 900. Defendant was not entitled to the affirmative charge. 10 C. J. 223; 4 R. C. L. 692; Montgomery, etc., v. Kolb, 73 Ala. 396, 49 Am. Rep. 54. Charge 9 is patently bad; authorities cited by appellant are inapt.
This appeal is from a judgment recovered by the appellee against the appellant, a common carrier, for the loss of a car of lumber destroyed by fire about midnight of April 16, 1923, while on the side track at Mous, a station on appellant's line of railway. The plaintiff lived at Repton, three miles from Mous, and was engaged in the operation of a sawmill on the Alger-Sullivan road, 5 or 6 miles east of Mous. Plaintiff had a "siding" on the Algernon road (to so designate it for convenience) where cars were placed for loading, and the Algernon road would bring the loaded cars to Mous to be placed on defendant's side track for shipment.
Plaintiff's testimony is to the effect that three or four days before the car was burned he gave to Moore, defendant's agent at Mous, his order for a car to be placed at his siding to be loaded for a shipment to McCreary-Alford at Neri; the car was so placed, loaded, transported to Mous, and placed on defendant's side track about 6:30 p. m.; that all of this was pursuant to the usual custom as to shipment of lumber by plaintiff over defendant's road. No bill of lading had been issued, but the custom was for defendant's agent to issue the bill of lading, and subsequently hand or mail it to plaintiff or retain it for him. The shipper was not required to sign the bill of lading at Mous, the agent himself signing for the shipper. The hour for closing the agent's office at Mous was 5:30 p. m., but the agent states that frequently if he had instructions as to shipments he would issue bills of lading as late as 8:30 p. m. The agent recalls this car being ordered by plaintiff, and being placed on the side track of defendant, saying in this connection:
"I saw the engineer deliver this car of lumber on the L. N. Railroad Company's sidetrack. The car passed right by me that evening. * * * The car was placed on the side track of the L. N. Railroad by the engineer where I told him to place it."
The agent insists, however, that he had not received shipping instructions, and that of course bill of lading could not be made out before such instructions were received. Plaintiff, on the contrary, as previously stated, insisted he had given shipping instructions at the time the car was ordered, and that it was customary to give such instructions at the time the car was ordered.
Indeed, as we read and understand this record, the evidence of the parties is in entire accord, with the single exception as to whether or not shipping instructions had been given prior to the car's destruction by fire, and that it was customary to give such shipping instructions at the time the car was ordered.
Before liability attaches to the carrier for the loss of goods they must have been delivered to the carrier for transportation. S.W. R. W. Co. v. Webb, 48 Ala. 585; Montgomery Eufaula Ry. Co. v. Kolb Hardaway, 73 Ala. 396, 49 Am. Rep. 54.
From the undisputed proof the car of lumber in question was placed on the side track of defendant with knowledge on the part of defendant's agent, and according to the usual custom, and, if plaintiff's view is to be accepted, shipping instructions had been given, and according to custom the car was ready for shipment without further activity on his part. The above cited authorities are conclusive to the effect that under these circumstances the affirmative charge requested by defendant was properly refused.
There is nothing in the case of L. N. R. R. Co. v. Echols, 97 Ala. 556, 12 So. 304, that militates against this conclusion. Not only were the facts there considered variant from those here presented, but that case dealt with the question of a preponderance of the evidence, and not that of the affirmative charge.
Upon this latter question as here presented, the court is only to deal with the sufficiency of the evidence for submission to the jury for their consideration.
Nor was there reversible error in giving charge A at plaintiff's request. By the use of the expression "delivered on the side track of defendant," we think a full and complete delivery was understood, which included the idea of such delivery with notice or knowledge of defendant's agent. If the charge had a misleading tendency in this respect, it could readily have been corrected by explanatory charges; but the jury were clearly not misled thereby. The court in its oral charge and in several written charges, given at defendant's request, explicitly instructed the jury that the mere placing of the car upon the side track did not constitute an acceptance by defendant for shipment, and that the evidence must show an acceptance for shipment, and that plaintiff "made an unconditional delivery of the car of lumber to defendant."
It was also without dispute, and admitted by defendant's agent, that the car was ordered by plaintiff, and that he, the agent, knew it was placed on the side track pursuant to his direction. Charge A therefore hypothesized the only question of fact in dispute; that is, whether shipping instructions had been given before its delivery on the side track.
Charge 9, refused to defendant, ignores the testimony of plaintiff that he had in fact given shipping instructions as to this particular car prior to its delivery on the side track. Its refusal was not error.
We have here treated the questions assigned and argued, and find no reversible error.
Let the judgment be affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.