Central of Georgia Railway Co. v. Henderson , 152 Ala. 203 ( 1907 )

TYSON, C. J.

The third count of the complaint predicated the plaintiff’s right of recovery upon the facts alleged that defendant was a common carrier and as such received 28 mules, to be transported to Searight, Ala., to be there delivered to plaintiff for a reward, and that it failed to deliver one of said mules. The defendant undertook by several special pleas to invoke as a defense that provision of the bill of lading which is in this language: “It is further agreed, for the consideration before mentioned, that as a condition precedent to his right to recover any damages for loss or injury to said stock the owner or person in charge of said stock shall give notice in writing of his claim therefor to some officer of the delivering road or its nearest station agent, before said stock is removed from the place of destination aboye mentioned, or from the place of delivery of the same, and before said stock is mingled with other stock.” The demurrer to these pleas, which was sustained, is not shown by the record. It must therefore be presumed that it pointed out the defect in each of them, if one exists. — Hodge v. Tufts, 115 Ala. 366, 22 South. 422. It will be noted that it is not averred in either of said pleas that the owner or any other person had charge of the mules while in transit; and in view of the fact that the condition relied upon imposes the duty or obligation on the “owner or person in charge of said stock” to give notice of any damage for loss or injury, etc., to the mules, conceding the applicability of this term of the bill of lading to this character of cases, the pleas are clearly defective. It is entirely clear, from the context of the bill of lading in its entirety, that it was contemplated that the owner or his agent was to accompany the mules in transit, and therefore the duty or- obligation was laid upon such person in that clause of the bill of lading under consideration. The reason for this is obvious. Where the owner or his agent accompanies the stock, they being under his charge and care, he has every opportunity of knowing, not only that all of them reach their point of destination, but also what their physical condition is at that point, and therefore can readily give the required notice. The clause cannot be held to apply where the stock are not in charge of their owner or some other person while being transported, unless we disregard its plain language, and thereby eliminate, as meaningless, the words “owner or person in charge of said stock.” In other words, we must make a new contract to hold otherwise, which, of course, we have neither the right nor the disposition to do.

But, aside from this consideration, it is clear from the context of the clause above quoted that it bas no application to this case. It is in effect conceded that if ■only one mule was shipped, and it was never delivered, or if none of them were delivered, the clause would be wholly inapplicable, and notice would not be required. If this be true, and undoubtedly it is, then the condition named can have no application where only one mule of a lot was not delivered. It is apparent, it seems to us, that the words “loss or injury” are synonymous, and that the clause has application only where the stock which were delivered were damaged or injured while in transit. By no rule of construction can the applicability of the clause be made to depend upon the number of mules shipped. Furthermore, it was the duty of the defendant to know, and it must be presumed to have known, how many mules it received for delivery and how many it delivered to plaintiff; and it is not to be supposed that it stipulated for information as to matters fairly within its knowledge. As to the condition of the stock delivered, it is easy to understand the nature of the interest the defendant would have as to prompt information of any claim for damages or injury to them. This marks the limit of the right of the carrier to contract with respect to such information from the shipper. And this was obviously the purpose of the stipulation under consideration, as shown by its plain language, namely, “shall give notice in writing of his claim therefor before said stock is removed from the place of destination above mentioned or from the place of delivery of same and before such stock is mingled with other stock.” — Galveston H. & S. A. Ry. Co. v. Ball, 16 S. W. 441, 80 Tex. 602.

It is suggested, however, in reply to the first point of objection taken to the pleas, that if the bill of lading imposed the obligation upon the owner to accompany, or to have an agent to accompany, the stock, and he failed to do so, he breached his contract, and therefore should be required to give the notice. His breach of this obligation cannot alter the contract and thereby give the defendant the benefit of a stipulation by judicial enlargement which, by its very terms, is not provided for. If plaintiff’s breach of the contract was the proximate cause of the loss of the mule, it is not hinted at in either of the pleas; and clearly, in order for defendant to defeat a recovery on this ground, it must tender that issue by appropriate pleading.

In these views Justices HABALSON and DENSON concur. But the other justices do not.. They hold that special pleas numbered 4 and 5 present a good defense to the action, and that error was committed in sustaining the demurrer to each of them.

There is no disagreement on the remaining point to be considered, involving the court’s refusal to give the affirmative charge, with hypothesis, requested by defendant. This insistence proceeds upon the theory that there was no testimony tending to establish that defendant received the 28 mules for shipment. This is not borne out by the record. In addition to defendant’s receipt for that number of mules, Perry testified that his firm operated a stockyard and received the 28 mules to be shipped to plaintiff, and that all of them were delivered to defendant. On this testimony it could not be affirmed as matter of law that defendant did not receive the 28 mules.

Beversed and remanded.

Dowdell, Simpson,. Anderson and McClellan, JJ., concur. Tyson, C. J., and Haralson and Denson, JJ., dissent.