
    Louisville & Nashville Railroad Co. v. Duncan & Orr.
    
      Action against Railroad Company as Common Carrier.
    
    1.' ' Pleading and practice; token complaint fails' to slate cause of action hy reason of alternative averments. — A complaint which, contains alternative averments of the existence of one, or, if : not that one then of another, of two entirely distinct and different causes of action against the defendant-in distinct’and) different capacities, is not the alternative averment of either. of the causes of action referred to. and therefore fails to aver any cause of action whatever.
    2. Samo; same; action against common carrier. — In an action against a railroad company as common carrier, a complaint which avers that the plaintiff delivered to the defendant a lot of horses and mules to be carried to a certain designated place of destination, that defendant accepted said stock and it became and was its duty to carry said stock with reasonable speed to said place of destination, “or with reasonable speed to deliver said stock to one of its connections which could carry said stock with all reasonable speed to said” place of destination, but notwithstanding said duty the defendant delivered said stock to that one of its connections that had a long and circuitous route to said place of destination instead of that one which had á shorter and more direct route thereto “or instead of carrying said stock itself to said”, place of destination, and by reason thereof the said stock -was injured, does not slate a cause of action. . ■_
    3. Common carrier; duty of common carrier when connecting route refuses to accept shipment. — Where a railroad company accepts stock for shipment to a point not on its line of road which is to be carried to its place of destination over connecting lines, and by the terms of the contract of shipment the defendant was to transport the stock to a point along its line and there deliver it to a connecting carrier for 'transportation to the place of destination, if upon the stock arriving at the place on the accepting carrier’s line where it was to be delivered to the connecting carrier, •• the connecting carrier-having the most direct route for transportation at said point to the place of destination refuses to accept it for carriage thereto, it is then the accepting carrier’s duty to give notice , . of that fact to the consignors in order that they may give further directions as to rou„.ng the consignment.
    
      4. Action against common carrier; admissiotlity of parol, evidence as to routing of shipment, — In an action against a common carrier for damages alleged to have been- sustained by live stock delivered to the defendant for shipment to- a point beyond the defendant’s line and on a connecting line, where at the point along the defendant’s line at which the stock shipped was to be delivered to a connecting line for transportation to the place of destination; there were several connecting lines by which the shipment could be routed and the bill of lading failed to specify which one of said connecting lines said stock should be shipped over, it is competent to introduce parol evidence showing that the consignors gave directions for the consignment to go from the connecting point-over a certain route.
    
      
      5. Common carrier; duty of. railroad, company as forwarding agent of consignor. — "Where freight is delivered to a railroad company for carriage to a point not on the receiving carrier’s line, upen the freight arriving at the point on the receiving carrier’s line at which it is to be delivered to connecting carrier for transportation to the point of destination, it is the duty of the receiving carrier as forwarding agent of the consignor to .exercise the same care in selecting a carrier or succession of carriers from the connecting point to the place of destination as the owner, being a man of ordinary care and prudence, would have exercised had he been present and as fully acquainted with all the lines and connections as was the receiving carrier.
    Appeal from the Circuit Court of Jefferson.
    Tried before the lion. A. A. Coleman.
    This action was brought by the appellees, James C. Duncan and Joe C. Orr, against the appellant, Louisville & Nashville Railroad Company. The complaint is set out at length in the opinion. The defendant demurred to this complaint, but the demurrer was overruled by the court, and to this ruling* the defendant duly excepted.
    On the trial of the case, the following facts were shown: Plaintiffs delivered the live stock to defendant at Birmingham, Sunday, November 5th, 1899, at noon. Before delivery one of the plaintiffs and defendant’s agent executed the contract which was attached as Exhibit “A” to the bill of exceptions. Against, defendant’s objection and exception, the court admitted evidence of a conversation between one of the plaintiffs a.nd said agent, to the effect that the agent said to plaintiff, in response; to his inquiry, that the stock ought to, arrive at Thomamlle,. Georgia, 'a station near Greenville, Florida,, on the Plant System, at nine or ten o’clock Monday night; that plaintiff objected because the written contract failed to show that the shipment was routed by the Plant System; that in, reply to this objection the agent said the shipment would go that way aud the way-bill would, show the routing, and that it was unnecessary for the written contract to show it. The testimony of plaintiffs also' tended to show that another of defendant’s agents issued free transportation to one of the plaintiffs on the contract of shipment to Montgomery, and told him that on presentation of his contract to the Plant System at Montgomery, free transportation would be issued him to Thomasville, Georgia, and that said plaintiff went from Birmingham on a passenger train to Thomasville, Georgia, on the day of the shipment, and there first iearned that the shipment had not been routed by the Plant System. The evidence showed that the shortest route from Birmingham to Greenville was by way of the Plant System from Montgomery; that the next shortest route was by way of the Georgia & Alabama Railroad from Montgomery to Cordele, Georgia, where connection was made with the Georgia Southern & Florida Railroad; thence on that railroad to Lake City, Florida, where it connected with the Florida Central & Peninsular Railroad, and thence on the latter railroad to Greenville, Florida. The evidence showed that each of said railroads formed connections with and received shipments of similar character from the other at the time plaintiffs’ stock Avas being transported, forming a through route between Montgomery and Greenville Ada Cordele and Lake City, 382 miles long. The evidence 'showed that there Avas another route by Avay of the defendant’s railroad to River Junction, Florida, and thence over the Florida Central & Peninsular Railroad to Greenville, which was 408 miles long, 26 miles longer than the previous route. The other route (Avhich plaintiffs contended the shipment iu fact took) Avas via the Georgia & Alabama Railroad from Montgomery, eastAvard by AAray of Cordele, to Savannah, thence southward over the Seaboard lAir Line to Baldwin, Florida, and thence westward over the Florida Central & Peninsular to Greenville. Taking this latter route it Avas necessary to 'transport- the stock :in order to reach Savannah, 168 miles east of and beyond Cordele, on tlie Georgia & Alabama Railroad, and westward practically the seame distance from Baldwin to Lake City, Avhich is about south of Cordele. The route via Savannah and Baldwin Avas thus about 325 miles.longer than that via Cordele and Lake City. Each of these mutes left Montgomery eastward over the Georgia & Alabama Railroad, one diverging south a.t Cordele and the other 168 miles further east at Savannah. The evidence showed that the Georgia & Alabama Railroad Company received the shipment from defendant at Montgomery unhampered by any instructions as to its routing beyond Montgomery, other than that its ultimate destination was Greenville, Florida. The evidence also showed that the connections of the Georgia & Alabama Railroad at Cordele and Lake City were such at the time of shipment that it could have routed the shipment that way.
    The evidence showed that plaintiffs’ stock reached Montgomery about six p. in. Sunday; that upon'arrival there the way-bill on which the stock ivas hilled was delivered to one Walton, who had charge of the distribution of cars arriving on defendant’s road, and destined to points beyond it'to the proper connecting- carrier; that upon receipt of the way-bill said Walton tendered said car of stock by telephone message to the office of the Alabama Midland Railroad or Plant System; that this was the proper office to which to make such tender, and that it was usual to- make such tenders of shipment over the telephone to connecting lines, including the Plant System; that the person in the office of 'the Plant System, who responded to Walton’si telephone message, declined to accept the shipment tendered it, stating that his company liad a- rale prohibiting it from handling shipments for points o® the Florida Central & Peninsular Railroad on which Greenville was located; that said Walton then explained that the shipment was of live stock and that the person at the telephone replied that this made no difference as the rule was arbitrary not to accept shipments of any character for points on that road. The evidence shows that Walton then called up defendant’s yard office and ascertained that neither plaintiffs nor their agent accompanied the car of stock, and that said Walton then called up the Georgia & Alabama Railroad Company’s local office at Montgomery and tendered the stock to it; that according to the usual course of business, shipments for Greenville when refused by the Plant System were next tendered to the Georgia & Alabama Railroad Company; that the car was accepted by that company; that said Walton, then ordered the car to be placed on the receiving track of said railroad company, and that the stock after having been unloaded and fed was reloaded in the same car and so placed; that this was the usual way of delivering shipments to the Georgia & Alabama Railroad Company; that a way-bill was delivered to said railroad company by defendant as its authority for transporting said shipment to point of destination. The evidence showed that after the arrival of the shipment at Montgomery it was delivered with shipping directions to (lie Georgia & Alabama Railroad Company in time to take the. first train on that road going east from Montgomery, and which left Montgomery about 4:00 a. m. Monday. The evidence "also’ showed that the defendant did not notify plaintiff before routing the shipment over the Georgia & Alabama Railroad, and that the only effort made to communicate with plaintiffs after the shipment was refused by the Plant System was to ascertain that no one accompanied the stock to Montgomery. The evidence showed that the car of stock left Montgomery on the first train going east on the Georgia, & Alabama Railroad after the shipment, arrived in Montgomery and was next seen, so far as disclosed by the evidence, coming into Greenville from the direction, of both Lake City and Savannah on a freight train of the Florida Central & Peninsular Railroad. The only other evidence rending to show that the shipment, had gone hv way of Savannah were certain hills purporting to be for feeding the stock en route between Savannah and Greenville, which were forwarded to the agent at Greenville by 'the connecting carriers for collection and Avhich Avere by him collected from plaintiffs. The (widence also showed that the stock on arrival at Greenville Avas damaged, and further tended to sIioaa" that the amount, of damage done. Avas the usual amount, done by a railroad journey of five days’ duration Avithout rough handling. The stock in fact was in transit from Sunday noon to Thursday afternoon, about four days. The shipment arrived in the same car it left Birmingham in and consisted of twenty horses and six mules. The evidence. shoAved that, the directions for shipping the stock meant, they Avere to go via Montgomery, and that according to the custom on all railroads shipments routed by way of a certain station on the initial earner’s line were to be; carried on its line only to such station and there delivered for further transportation to some other connecting line.
    Under the opinion on present appeal it is unnecessary to set out the several rulings of the court. From a judgment in favor of the; plaintiffs, assessing their damages at $472.50, the defendant appeals, and assigns as error the several rulings of the trial court to -which -exceptions were reserved.
    J. M. Falknjsr and W. I. Giiubb, for appellants.
    The record shows that by the contract under which the stock was shipped appellant’s liability as a carrier ceased upon arrival of the stock at Montgomery when ready for delivery to the next succeeding carrier, and that at this time the stock was in good condition, had suffered no damage, and had been transported L> this point with reasonable expedition. The damage occurred on a connecting carrier’s line, and the only contested question was whether appellant exercised reasonable care in forwarding the shipment by the carrier on whose line the delay occurred. In its relation of forwarder and in its selection of a connecting carrier, appellant was held liable for the failure to exercise ordinary care, and the burden1 was on appellees to prove such failure. — 13 Am. & Eng. Ency. Law (new ed.), pp. 1167-68-69. In selecting a common carrier to transport the shipment from Montgomery, the extent of the duty of appellant depended upon whether or not it had received instructions from the shipper to ship by a specific route. In the absence of such instruction its duty was to- deliver to the route usually employed by it, provided such route was a reasonably safe and direct one, 'but not necessarily the shortest and quickest, one.- — 6 Am. & Eng. Ency. Law (new ed.), pp. 611 and 626. If specific instructions are given by the shipper the initial carrier must follow such instructions if possible,, and if it fails is liable as a carrier. 13 Am. & Eng. Ency. Law, 1170-1171. If delivery to designated carrier becomes impossible because of its refusal to accept the shipment, then in cases of ordinary shipments the initial carrier’s duty is to hold the shipment for further advices from thei shipper, and if it forwards the shipment by another than the designated carrier and loss occurs, the initial carrier is liable for the loss. — 13 Am. & Eng. Ency. Law, pp. 1171-72. If, however, the shipment is of a perishable nature and it is apparent that loss would result from delay in forwarding, the forwarder by the exercise of clue care in the selection of a connecting carrier relieves itself of further liability, though it forwards the goods without previous notice to the consignor. — 13 Am. & Eng. Ency. Law, (new ed.), 1172; 6 Am. & Eng. Ency. Law, (new ed.), 608, 609; Regan v. Grand Trunk R. R. Go., 61 N. H. 579.
    Bowman & Harsh, contra,
    
    cited 13 Am. & Eng. Ency. Law, (2d ed.), 1170; A. G. 8. R. R. Go. v. Thomas & Son, 89 Ala. 300.
   MoCLELLAN, C. J.

The action is prosecuted by Duncan & Orr against the Louisville & Nashville Railroad Company. The complaint is as follows: “The plaintiffs claim of the defendant one thousand dollars damages for that heretofore, to-wit, on the 5th day of November, 1899, defendant was engaged in the business of a common carrier of freight from Birmingham, Alabama, with connections at various points, several of which connections reached Greenville, Florida; thaifc on said day plaintiffs delivered to defendant- at said Birmingham a large lot of horses and mules, to-wit, twenty-six head, to be carried to said Greenville, Florida; that, defendant accepted said stock, and it became and was. 'the duty of defendant to cany said stock with reasonable speed to said Greenville, or with reasonable speed to- deliver said stock to the one of its connections which cotí Id carry said stock with all reasonable speed to said Greenville, but, notwithstanding said duty, defendant delivered said stock to that one of its said connections which had a long and circuitous route to said Greenville, Florida, instead of that one of its said connections which had a shorter and more direct route to said Greeneville, or instead of carrying said stock itself to said Greenville, and by reason of said delivery as aforesaid, said stock did not reach said Greenville for a long time, to-wit, for three days longer than it should have taken for them to have been delivered at Green-ville, and as a proximate consequence ¡thereof, said stock were subjected to a great deal of jolting and jostling, and were greatly bruised and otherwise injured, and said stock were kept closely crowded together in said car, and said stock or a part thereof were made sick, and suffered a, long time for lack of food and water, and plaintiffs had to pay a large amount for feed bills, and the said stock were.1 rendered greatly less valuable to plaintiffs; -all to plaintiff’s damages, one thousand dollars, wherefore; they sue.” We have had some difficulty in making out precisely what this- complaint means, but, resolving its involvements against the pleader, we have come to the conclusion that it charges alternatively that it was either defendant’s duty itself and upon its own lines to transport the stock from Birmingham, Ala., to Greenville, Fla., or to deliver it at some unidentified point — whether at Birmingham, or Montgomery, or what not, is not stated — on its own line to some connecting carrier having a direct route of transportation from such point to the Florida town, and that the loss resulted either from defendant’s failure to perform the carriage itself or from its failure to- forward the- consignment by a carrier having such -direct route by its connections or otherwise from the; po-int, of connection to- the destination of the shipment. So- construed we are of opinion that the complaint does not state- any cause of action. Its alternative averments of the existence of one-, or, if not that one, then the other, and vice versa of two entirely distinct and different causes of action against the defendant in distinct and different capacities, is not the affirmative averment of either -of the causes of action referred to; and it cannot be said to aver any cause of action whatever. — Southern Railway Co. v. Bunt, 131 Ala. 591; Central of Georgia Railway Co. v. Freeman, 134 Ala. 354; 32 So. Rep. 778; Tinney v. Central of Georgia R’y. Co., 129 Ala. 528; Southern Railway Co. v. Shelton, 138 Ala. 191. No cause of action being averred, the judgment must be reversed. — Code, § 3333.

On the state of facts existing with reference to this consignment, after the car had reached Montgomery and the Plant System had refused to accept it for carriage to Greenville, if that company did so refuse1 — and on this issue it seems to us ¡that the evidence was all with the defendánt — it was defendant’s duty to give notice of that fact to the consignors to the end that they might give further directions as to routing the consignment, unless the property was of such perishable nature as that the time necessary to give such notice and to> receive such instructions would have caused a delay in forwarding calculated to. injure or destroy it. We do not find on the: evidence, in this record 'that any such delay would have been entailed by taking the time necessary to these ends, or, at least, we may say that with this issue properly in the case, it would be open to the jury to find that the defendant was remiss of its duty in this connection. Live stock is, of course, perishable in a general sense; but we apprehend that horses and mirléis released from the car and in a pen in Montgomery, as these were; were ini no danger of perishing while the defendant was communicating with the consignors at Birmingham 'and receiving their reply.

It seems clear to us also that parol evidence as to the consignors having given direction for the consignment to go from Montgomery by the Plant System did not tend to vary or contradict the stipulations of the bill of lading; and that the evidence received on this subject, if believed by the jurir, established the fact that the consignors directed the transportation to be over the Plant System.

Other questions aside, it was the duty of the defendant as the forwarding agent of plaintiffs from Montgomery —the Id ant System having declined the consignment— to exercise- the «ame care in selecting a carrier or a succession of carriers from Montgomery to Greenville as the owner, being a man of ordinary care and prudence, would have exercised had he been present, and as fully acquainted with all the lines acid connections as the defendaut was. And it was a question for the jury whether such a man would have delivered this carload of live stock to the Georgia & Alabama Company, whose manifest interest it was to carry it, over their whole line to Savannah and send it thence to Greenville, this route being very long and very circuitous, without directing that company to deliver1 it to, a connecting -line at Cordele, Georgia, whereby the distance and time from Montgomery to Greenville would have been reduced about one-half. If the jury should find that a man of ordinary prudence and care would have directed the carriage by the Cordele connection, they should further conclude that defendant was negligent in delivering the car to, the Georgia & Alabaima road without such direction.

We deem it unnecessary to refer to the rulings of the trial court in detail, since the judgment must be reversed on the insufficiency of the complaint, and what we have said will serve to indicate our views for the purpose of another 'trial, should there be one.

Reversed and remanded.  