Louisville & Nashville Railroad v. Gerson & Sons , 102 Ala. 409 ( 1893 )

HARALSON, J.

This is not an action against the defendant corporation as a common carrier, for a failure to deliver the animal to the consignee in safety, free from injury to it in its transportation. The defendant is not referred to at all in the complaint as a carrier, common or private. All carriers without hire may be said to be private carriers. Compensation in some form, either by the payment of its price, or a promise express or implied to pay it, is essential to constitute a common carrier. If one undertakes to carry goods for another gratuitously, he is a mere mandatory, and liable only for gross negligence, It is not necessary, however, that there should be an express contract with a railroad company, or any other common carrier, for the transportation of freight, to render it liable for failure to deliver in safety. Proof of delivory of goods, with directions as tq their carriage, and of the acceptance of them by the carrier, would give rise to an undertaking on its part, to carry them according to directions. No such implication will be indulged to fix a liability on a private person. Hence, when a common carrier is proceeded against at law on a contract, express or implied, and especially if implied, for a failure to deliver in safety, it should be averred in the complaint, that the carrier is a common carrier. — Hutcheson on Carriers, § § 16, 17, 19, 35, 763; Angell on Carriers, 17-41; Story on Bailments, § 174; Knox v. Rives, Battle & Co., 14 Ala. 257; Haynic v. Waring & Co., 29 Ala. 265; Central R. R. & B. Co. v. Lampley, 76 Ala. 364; M. & E. R. R. Co. v. Kolb, 73 Ala. 396; Melbourne v. L. & N. R. R. Co. 88 Ala. 449; 19 Am. Eng. Encyc. of Law, 903.

In this case, the action is not on a contract, express or implied. It is not averred, even, in the complaint, that the defendant is a common carrier, nor is any fact averred from which it can be implied, that the mare was delivered to defendant to be transported, or that there was a relation of bailment of any kind between the plaintiffs and defendant in respect to the animal. The action is one in case on the naked averment, without stating any of the facts, that the mare was ‘‘negligently injured” by defendant. There was no objection in any form, made to the complaint.

The case was tried, as would appear from the evidence introduced on both sides, as though the mare had been transported by defendant as a common carrier, but there was no proof of any contract of affreightment, express or implied, further than that the defendant transported the animal from St. Louis to Montgomery, nor was it shown that any thing was paid or promised to be paid for such a service.

If the suit were against the defendant as a common carrier, on an implied contract, the bare fact of the delivery of the freight to the defendant, its acceptance and transportation according to directions,, without proof of any reward paid or promised, or which could be inferred to be promised, would have made it liable for damage to the mare occasioned by its gross negligence. If treated in this light, as the course the trial took indicated the parties were disposed to treat and try it, and as is most favorable to plaintiffs, the evidence, without conflict, is wanting to show any such negligence on the defendant. The plaintiffs failed to establish their case. — L. & N. R. R. Co. v. Grant et al., 99 Ala. 325; Western Rwy. Co v. Harwell, 97 Ala. 341.

But, if tried on the complaint made, the plaintiffs have no standing under the evidence in the cause. Without any conflict, it shows that the defendants exercised reasonable and proper care to avoid the injury to the property transported.

The general charge should have been given for the defendant.

Reversed -and remanded.