Winston v. Cox, Brainard & Co. , 38 Ala. 268 ( 1862 )

A. J. WALKER, C. J.

Section 896 of the Code requires masters of steamboats and other water-craft to land goods, at the landing for which they are shipped, at least ten feet perpendicular above the water, unless the river is too high to admit of it. The next section prescribes a penalty of double the value of the goods for the failure to place them as required. The main question of this case is, whether the prescribed penalty is avoided, by a delivery at the proper landing to the consignee, aud with his consent, at a point on the bank less than ten feet perpendicular above the water.

The consignee, not being an owner, is the agent of the owner to receive the property which is the subject of the consignment, at the port of delivery; and it is the duty of the carrier to deliver to the consignee. — Angell on Carriers, §§ 323, 313, 282, 287, 300, 305, 316 ; Ala. & Tenn. Rivers Railroad Co. v. Kidd, 35 Ala. 209 ; Conrad v. Atlantic Ins. Co., 1 Peters, 386, 447.

But it is said, that the law requires a delivery ten feet perpendicular above the water; that the law must be regarded as incorporated into the contract; and that, therefore, the contract must be construed as if it contained an express stipulation for delivery to the consignee ten feet above the water. A concession of that argument does not affect the question. It does not follow that the consignee is only authorized to receive at a point ten feet above the water, because a legal obligation is on the carrier to deliver at that point. The-statute aims to protect the interests of shippers, by imposing a specified duty upon carriers, to be performed for the benefit of such shippers. There is nothing in'the purpose and spirit of the law, indicating a design to restrict the authority of a consignee at the port of delivery; and certainly no such design -could be inferred from the letter of 'the law.

If the carrier had entered into an express contract to deliver to the consignee at his dwelling-house, it would scarcely be contended, that a delivery, at the request of the consignee, eould not be made at 'his warehouse. The consignee, having authorityfo -receive at the port of delivery •and discharge the •carrier, may absolve him from the obligation to deliver at any particular point at the port of delivery, and -accept at some other point at that port. He is invested with the authority so to do by the relation in which he stands to the consignor. It is conceivable that, in many instances, neither the interest of the consignor, nor the convenience of the consignee, would be promoted b)*- requiring a delivery, against the wishes of the consignee, ten feet above the water. The general rule, sometimes modified by local usages, is,- that the carrier is bound to deliver personally to the consignee, at the place of delivery; and this rule is subject to the qualification, that in cases of carriers by ships and boats, and perhaps 'by railroad, notice given to the consignee of the arrival and place of deposit comes in lieu of delivery. — Fisk v. Newton, 1 Denio, 45; Angelí on Carriers, <§, 313. The -great duty of the carrier is safe delivery to the consignee, at the proper port; and it would be strange if, after' such delivery is accomplished, the carrier should remain liable.

The consignee, who is, -for most purposes, deemed the owner, may waive a full compliance with all the terms of the carrier’s contract in reference to delivery ; and his acceptance of the goods is such a waiver. — Story on Bailments, § 541; Story on Agency, § 111; Lewis v. Western Railroad Co., 11 Metc. 509; 2 Kent’s Com. m.p. 605.

The bill of lading- contains the stipulation to deliver “unto warehouse, or to assigns, he or they paying freight.” The warehouse-man at that landing was, under this contract, the consignee.

[2.] A party can not recover a forfeiture allowed him by law, when it was incurred by his consent, and in consequence of his act. He can not take advantage of the nonperformance of an act, required by law to be performed for his benefit, when its performance has been waived by him, or his authorized agent. — Dunlap v. Clements, 18 Ala. 778 ; Vastbinder v. Spinks, 10 Ala. 386. If, therefore, the goods in this case were delivered to the consignee, at the proper landing, with the consent of such consignee, less than ten feet perpendicular above the surface of the river, no cause of action in favor of the plaintiff arose.

The necessary conclusion from the principles above stated is, that there was no reversible error in the giving and refusing to give instructions to the jury as stated in the bill of exceptions.

[3.] Assignments of error are made upon the admission of the answers of Hill to the defendants’ cross-interrogatories numbered from four .to fifteen inclusive The bill of exceptions discloses, that the testimony of this witness was at variance with that of other witnesses upon material points. It was, therefore, important for the defendants, by cross-examination, to test the credibility of the witness. When a cross-examination is employed for this purpose, the rule which restricts the admission of evidence to relevant facts, is not usually applied with the same strictness as in examinations in chief. — 1 Greenleaf on Ev. § 449. In such cross-examination, a party may investigate “ the situation of the witness with respect to the parties, and to the subject of litigation; his interest, his motives, hisTn-clination, and prejudices; his means of obtaining a correct and certain knowledge of the facts to which he bears testimony ; the manner in which he has used those means; his powers of discernment, memory, and description.” — 1 Greenl. on Ev. § 446 ; Seale v. Chambliss, 35 Ala. 19; Stoudenmeier v. Williamson, 29 Ala. 558. This court will not reverse on account of latitude allowed in such a cross-examination, unless it is [plain that’an improper indulgence was allowed. We are not prepared' tó say, that the cross-examination as to the 'Whole of the answer; to > any one cross-intérrogatory was plainly carried -fed' an undue extent in this-case; and we, therefore, Will not'reverse on account of-it.' The exceptions did not raise any question as to the admissibility of afiy distinct parts of any answer, Wé cannot affirm that it'was improper for tbe «emir to allow the defendant to show that the witness Was the warehouse-man ,* that he received the goods from the boat, and. took the bill of lading; together with alf facts bearing upon tbe question, whether he'himself had-not been guilty of negligence, from the consequences off which a recovery by the plaintiff in-'-this'casé Would contrfeute^o relieve him, and from the itoput&tiorFo.f which he would naturally desire to guard. The testimony as to-the length of time which expired before the goods- Were all -rbmoved from the place where they Were put by the defendant; as to tbeir being carried away by the owner, and'-found defective; -as to:sa part of them having been under"water; as to the presence'of boats, and other appliances, which might have been serviceable in removing- the goods before the water-' ardse over them; as to his'customary mode of receiving-goodS,--a/nd-ks to his being-present in person, and thus having an-’opportuttfty to observe tbe condition of things, — were alCmattérs'-whídh reliited to the question o'f bis own- negligence in'‘discharging the duties of his agency fonthe plaintiff. The'answer to the 6th cross-interrogatory; wSs relevant to--the material point of the plaintiffs'ownership. The answer-to-the 13th related to the question 'of the payment of freight/ and was relevant, because fro'ni’ tbe payment of freight acceptance of the goods mightbave been argued, and the acceptance by the consignee was an important point-in the case.- We think there was -lad reversible error instilé admission-df the testimony' objected'-k).

Affirmed.