Atlantic Coast Line R. Co. v. J. W. Maddox Co. , 210 Ala. 444 ( 1923 )

This is an action by J. W. Maddox and H. C. Johnson, partners doing business as J. W. Maddox Co., appellees, against Atlantic Coast Line Railroad Company, a corporation, the appellant, for damages for injuries to a car of hogs shipped from New Brockton, Ala., to Montgomery, Ala. There was judgment for plaintiffs, and from this judgment the defendant prosecutes this appeal.

There are three counts in the complaint. Count 1 claims damages for failure to deliver 10 head of hogs. Count 2 claims damages for failure to deliver 10 head of hogs received by it within a reasonable time. Count 3 claims damages for unreasonable delay in delivering the car of hogs.

The appellant assigns as error the overruling by the court of the defendant's demurrer to count 3. This count claims damages, and avers that on March 16, 1921, the defendant was a common carrier, and undertook on that date to transport a car of hogs, the property of plaintiffs, from New Brockton, Ala., to Montgomery, Ala., and to deliver same to Watkins, Carrithers Co., at Montgomery, Ala., for a reward, and then avers:

"That said car of hogs left New Brockton about 6:50 a. m. March 16, 1921, and were not delivered to said Watkins, Carrithers Co. until 1:30 a. m. March 17, 1921; that on account of unreasonable delay said car of hogs was in a damaged condition and the remainder in a sick and weakened condition, which lessened the weight of said hogs, whereby the sum received for said hogs was considerably less than it would have been if said car of hogs had been delivered on time and in good condition; wherefore plaintiff sues in the amount aforesaid."

This count substantially follows Code form No. 15, on page 1197, vol. 2, of the Civil Code of 1907, down through the word "reward." It does not attempt to set up the facts constituting the delay. It avers the time when the car left New Brockton and the time the hogs were delivered to the consignee and then avers that "on account of unreasonable delay said car of hogs was in a damaged condition," etc. The averments of this count are sufficient to state a cause of action for damages for unreasonable delay in delivering the car of hogs to the consignee, and are not subject to the ground of demurrer assigned to it. These averments are equivalent to stating that the car of hogs was not delivered within a reasonable time to the consignee. This is permissible under our pleading practice and system. L. N. R. R. Co. v. Allgood, 113 Ala. 163,20 So. 986; Southern Ry. Co. v. Moody, 151 Ala. 374, 44 So. 94.

The court gave the following written charge to the jury at the request of plaintiffs, the appellees:

"The court charges the jury that the burden is on the defendant to show that it delivered the hogs in a reasonable time to the consignees, Watkins, Carrithers Co."

The plaintiffs establish a prima facie right to recover for loss of their property or for damage to it when proof is made of delivery thereof in good condition to the carrier and the failure of the carrier to redeliver them, or failure of the carrier to deliver them in as good condition as it received them, to the consignee; the burden then shifts to the carrier to acquit itself of the presumption that the damage or loss, if any, was caused by its negligence. Southern Ex. Co. v. Ramey,164 Ala. 206, 51 So. 314; Am. Ry. Ex. Co. v. Dunnaway Lambert, 207 Ala. 392, 92 So. 780. And the same rule applies to the undertaking to transport and deliver live animals by a carrier, "except it is not accountable for, and does not assume the risk of, loss or damage of live animals 'arising from their nature and propensities, and which could not be prevented by foresight, vigilance, and care.' " A. C. L. R. Co. v. Rice,169 Ala. 265, 52 So. 918, 29 L.R.A. (N.S.) 1214, Ann. Cas. 1912B, 389; Am. Ry. Ex. Co. v. Dunnaway, 207 Ala. 392,92 So. 780.

The defendant pleaded the general issue. This places on the plaintiffs the burden of making out a prima facie case, which they did. They show without dispute that they delivered 99 hogs, belonging to plaintiffs, in good condition to the defendant, loaded them in a car at New Brockton, Ala., on the morning of March 16, 1921, and when they were delivered to the consignees in Montgomery, Ala., about 1 o'clock a. m. on March 17, 1921, 10 of the hogs were dead in the car. This evidence was not disputed; it was admitted by the defendant in its testimony, and it made out a prima facie case. This cast the burden of proof on the carrier to exculpate itself.

This charge assumes plaintiffs had made out a prima facie right to recover. It was not reversible error to give it in this case. The facts constituting the prima facie right to recover by plaintiffs were not disputed; they were without conflict, undisputed, and admitted in testimony of defendant. This burden of proof stated in this charge did not rest on the defendant until plaintiffs made out a prima facie case; but its assumption by the charge was not reversible error when the facts making out the prima facie case were not in conflict by the evidence, but were admitted in testimony of the defendant. The giving of this charge, if error, was without injury to the defendant, and it will not reverse the judgment. Cassells' Mill v. Strater Bros., 166 Ala. 276, headnote 19, 51 So. 969; Barry v. Madaris, 156 Ala. 475, headnote 6, 47 So. 152; Birmingham Ry. L. P. Co. v. Girod, 164 Ala. 10, headnote 6,51 So. 242, 137 Am. St. Rep. 17; Supreme Court Rule 45, 175 Ala. xxi, 61 So. ix.

The record is free from reversible error, and the judgment is affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.

On Rehearing.