Louisville & Nashville Railroad v. Landers , 135 Ala. 504 ( 1902 )

DOWDELL, J.

The complaint in this case is in the prescribed form of the Code, No. 15, page 946, for suit against a common carrier on a bill of lading. There are six counts, and in the four last, the plaintiff claims as assignee. A demurrer was interposed to the complaint, Avhich was overruled, but the assignment relating to this ruling, is expressly waived by the appellant. The first contention of counsel in argument for appellant, is, that the subject-matter of the suit is a chose in action, of which there can be no valid assignment; the insistence being that section 877 of the Code, authorizing the assignment in writing of claims against railroad companies for injuries to property, and suits thereon in the name of the assignee, is an unjust discrimination against railroad corporations as a class, and violative of section 12, Art. IY of the constitution of 1875. There is no merit in this contention, since the chose in action here assigned is a claim for damages growing out of the alleged breach of a contract, and the action is in form ex contractu. There can, ive think, he no doubt of the assignability of such a claim apart from the statute. The right, of the plaintiff to sue in his own name on the claims assigned is not raised in the pleadings, and on the case as presented to the jury was not involved in any of the rulings on the charges.

The property transported in the present case consisted of live stock — three carloads of cattle — and the bill of lading contained a special contract between the shipper and the carrier limiting the latter’s liability to damages resulting only from negligence of itself or its agents. Special contracts of this character have been upheld by this court as reasonable and binding between-the shipper and carrier.—Western Railway of Ala. v. Harwell, 97 Ala. 341, s. c. 91 Ala. 340.

In N. C. & St. L. R. Co. v. Parker, 123 Ala. 683, it was- held, that where the action on a bill of lading was in the form prescribed in the Code, it was a suit upon the common law liability of the carrier, and that a bill of lading containing special stipulations, limiting such common law liability, when introduced in evidence, constituted a fatal variance between the complaint, and the proof. We feel constrained now to depart from this holding. The fact that a bill of lading* contains special' stipulations exempting the common carrier from a part of its common law liability, makes it none the less a bill of lading. The prescribed form in the Code is, in general terms, for suits “on a bill of lading of a common carrier,” and we think it is sufficiently broad to cover bills of lading containing special stipulations.

There are a number of assignments of error based on the rulings of the court in the admission of evidence. We. will notice only those insisted on in argument. The witness Clarkson, sworn and examined on behalf of the plaintiff, was permitted against the defendant’s objection to testify as to the value of the cattle, and whether they could be loaded and transported with safety without partitions in the cars in which they were placed, and also as to what would be a reasonable time for transporting them from Montgomery to Attalla, Ala., those henil»’ the places of receiving and delivery. This witness testified that he had been a dealer in cattle all of his life, buying, selling, and shipping them on railroads. That lie had bought cattle several times within tin» year of the shipment of the cattle in question, in and around Montgomery, that he knew the market value at Montgomery at the time of the shipment of plaintiff’s cattle. That he had shipped cattle several times over defendant’s road from Montgomery to Gadsden, a point within five miles of Attalla, was familiar with loading and transporting cattle on railroads. This testimony of the witness, we think, very clearly qualified him to testify as an expert witness, and as the evidence objected to yame within tin* rule of expert evidence, and other conditions as a predicate having been shown for the admission of' expert testimony, the ruling's of the trial court were free from error.

Exceptions were taken and reserved to the admission in evidence of conversations between the plaintiff and defendant's agents relative to the transportation of the cattle, and in the course of the transportation of the same. These1 conversations were admissible as a. part of the re,s* gestae, and the rulings of tin1 court wen» free from error in this respect.

The plaintiff was permitted over the objection of the defendant to ask the witness Clarkson, the following question: “If these cattle had been loaded at Montgomery at three or four o’clock p. m., switched in the yard for two or three hours, unloaded, reloaded about nine or ten o’clock next morning, carried to Calera about twelve o’clock, side-tracked there until ten or twelve o’clock at night, and then reached Attalla at. three or four p. m. next day in the condition that yon saw them, with a number dead, what, in your judgment, caused the injury?” To which the witness answered: “It was caused by the delay in shipment” Motion Avas made to exclude the answer, which Avas overruled by the court, and to Avhieh action of the court in allowing the question and overruling the motion to exclude, the. defendant duly excepted. The court erred in its ruling. The question called for evidence without the limit of expert testimony. It called for a conclusion of the witness as to a. fact in issue, and which it was the province of the jury alone to determine, and the answer of the witness was a clear invasion of this province of the jury.

There was a provision in the special contract of af-freightment of cattle, which required the plaintiff at the point of destination, and before the removal of the cattle from the place of delivery, and before their mingling with other cattle, to give written notice to the defendant of any claim of damages, as a prerequisite to any right of recovery. While this provision of the contract has been held to be a reasonable one, especially where the owner or his agent accompanies the stock, or agrees to do so, it is also said that such stipulation is not to be strictly construed. “The object is to prevent fraud on the carrier. When the shipper does not discover, and by ordinary diligence could hot have discovered, the injury and its extent, before the animals are removed, notice thereof within such reasonably -short time after their removal as effectually secures the carrier from fraud, is a substantial and sufficient compliance with the condition.”—Western Railway of Ala. v. Harwell, supra, and authorities there cited. The fact of having given written notice before removal of the animals from the place of delivery, would not preclude the plaintiff from the right of giving additional notice of claim for other injuries which had not been discovered, and which could not have been discovered at the time of removal by ordinary diligence. But notice of such other injuries would be required within a reasonable time after discovery, to entitle plaintiff to recover damages for the same. To hold otherwise would be to impair, if not destroy, the effect of the -stipulation in the contract as to such notice.

There was evidence tending' to show that some of the cattle died after they had been removed from Attalla, the point of delivery. The notice, and only notice1, given to the defendant or its agent pursuant to the stipulations contained in the bill of lading was for cattle-which had died before such removal. On this phase of rhe evidence the court erred in refusing written charges requested by the defendant to the effect that the plaintiff could not recover for cattle that died after their removal from Attalla.

We discover no error in the rulings of the court on other charges refused to the defendant, nor in the rulings on those given for the plaintiff.

For the errors pointed out, the judgment will be reversed and the cause remanded.

Tyson, J., dissenting.