SAMEORD, X
This is the second appeal in this case. Tenn. R. Nav. Co. v. Walls, 204 Ala. 285, 85 South. 711. On that appeal the Supreme Court held that the action was based on a special contract, and as such the complaint was subject to demurrer, in that there was no averment that the agents mentioned had any authority in the making of the contract alleged.
[1]
Upon a return of the cause to the court below, the complaint was amended, and issue finally joined on counts 7, 8, 9, 10, 11, 12. Counts 7, 8, and 9 claimed damages by reason of the failure of defendant to transport certain cross-ties, which, through its duly authorized agents, it had specifically contracted to do. Of course if defendant, through its duly authorized agents, acting within the scope of their authority, entered into a contract with plaintiff to “take up and load” certain ties placed by plaintiff at the usual landing places of defendant’s boat, and defendant failed within a reasonable time to so load and transport such ties according to the terms of the contract, the contract would thereby be breached, and the defendant would be liable to the plaintiff for the damage proximately caused by such breach, unless the plaintiff with due notice of the breach negligently failed to minimize the damage. The special contract declared upon in this respect is not materially different from contracts between individuals for the performance of an act or service. The complaint alleges a special contract of service, entered into on the part of defendant by “its agents and servants duly authorized by it in that behalf,” a breach of the contract by the defendant, a damage to the plaintiff .as a proximate result. This presents a good cause of action, and, as we understand it, is in line with the holdings of the Supreme Court on former appeals.
[2]
Neither was the complaint subject to the ground of demurrer to the effect that the agent making the contract was not named. 2 Corpus Juris, pp. 904, 905.
' Counts 10, 11, and 12 present a different contention, to wit, that, the defendant being a common carrier, and holding itself out as such, and having plaintiff’s cross-ties presented t.o it at the usual places for carriage, and at reasonable times, it was the duty of defendant, under the law, to have received and transported plaintiff’s cross-ties within a reasonable time, and, failing in this duty, and damage having resulted, the defendant is liable.
[3,4]
Defendant was operating a steamboat on the Tennessee river, between Chattanooga, Tenn., and Albany, Ala., and holding itself out to the people along the river as a carrier of freight and passengers. Under our statute (Code, 5520, as amended by Acts Leg. 1909 [Sp. Sess.] p. 31), defendant was a common carrier, and under section 5549 of the Code of 1907 it was the duty of defendant to receive the plaintiff’s cross-ties for transportation whenever tendered at a regular station at proper hours, and in good shipping condition, according to reasonable rules prescribed by law or < the Railroad Commission. So far as has come to our attention the Public Service Commission (successors to the Railroad Commission) has not prescribed rules governing shipments of this kind, and therefore the reasonable rules of the common law must govern.
[5-7]
Being a common carrier, defendant was bound to receive the plaintiff’s cross-ties for transportation, and to carry them for a just compensation on the route navigated by its boats, is a rule too well settled to admit of controversy now. 1 Moore on Carriers, p. 118; 4 R. C. L. p. 658. But this rule also has its reasonable limitations. The obligation to receive and transport does not extend beyond the ability of the defendant to perform with the facilities and equipment at hand. If defendant’s boat and barges could have received and transported plaintiff’s- cross-ties along with its other freight, and within a reason-' able time, they having been tendered and at a suitable time and place, it was its duty to do so, and failing to perform this duty, and damage resulting, defendant would be liable. However, it was no part of the defendant’s duty; in the absence of special contract, to increase its equipment in order to transport plaintiff’s cross-ties. The obligation of the carrier is general, and embraces every one in the community alike, which it must serve without unjust discrimination (6 Cyc. 372; 1 Moore on Carriers, p. 116); but, in case of a steamboat company, this obligation does not extend beyond the present ability of the company’s equipment. There is a marked and well-defined difference 'between a steamboat company operating boats on a river open to the free navigation of all crafts desiring to-engage in serving the public and a railroad company granted kertain powers finder its charter, and serving exclusively a certain territory. In the one case the railroad must furnish sufficient facilities for the reasonably prompt transportation of goods tendered for carriage, while a steamship is only 'required to accept shipments tendered up to its-ability to transport. 4 R. C. L. p. 672. But the law requires both ship and railroad to carry indifferently, for all who may employ them, and in the order in which the application is made. 6 Cyc. 372, B.
So in the present case the defendant, operating a steamboat on the Tennessee river, would not be required to increase its facilities for handling freight tendered to it;, but it would be required to accept for shipment such freight as was tendered, and in the order of its tender, to the capacity of its present facilities. Therefore, if defendant’s boat leaves Chattanooga on its down trips with a full cargo, it would not- be required
to overload its vessel by taking on additional freight tendered at lower landings on that trip, but, upon finding at such lower landings freight tendered for transportation, with notice that it would remain there for defendant to transport, it was defendant’s duty to take such freight in its turn, and not to so place itself with reference to subsequent consignments as to render itself unable, within a reasonable time, to accept and transport the freight thus tendered at such lower landings. Such was its duty, a breach of which, coupled with damage, rendered the defendant liable, either for a breach of implied contract, or in tort, as the ease may be.
[8]
The complaint, after alleging facts constituting defendant a common carrier, alleges plaintiff as consignor, the tender of the cross-ties for shipment, notice to defendant, failure of defendant to accept and transport, and resulting damage. This was a declaration upon a breach of the implied contract, and was not subject to any of the grounds of demurrer interposed. Any special defenses were available to defendant by plea, and not by demurrer.
[9]
The plaintiff, while being examined as a witness, was allowed to testify, over the objection and exception of defendant that there were about 700 ties at Cross’ Landing; “that he got these figures from referring to books and memoranda.” It was not shown that witness had any independent recollection of the number of ties, and hence this testimony was illegal, and the objection should have been sustained. Holmes v. Gayle, 1 Ala. 517; 12 Michie’s Dig. 1208, § 180 (10).
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SAMEORD, X
This is the second appeal in this case. Tenn. R. Nav. Co. v. Walls, 204 Ala. 285, 85 South. 711. On that appeal the Supreme Court held that the action was based on a special contract, and as such the complaint was subject to demurrer, in that there was no averment that the agents mentioned had any authority in the making of the contract alleged.
[1]
Upon a return of the cause to the court below, the complaint was amended, and issue finally joined on counts 7, 8, 9, 10, 11, 12. Counts 7, 8, and 9 claimed damages by reason of the failure of defendant to transport certain cross-ties, which, through its duly authorized agents, it had specifically contracted to do. Of course if defendant, through its duly authorized agents, acting within the scope of their authority, entered into a contract with plaintiff to “take up and load” certain ties placed by plaintiff at the usual landing places of defendant’s boat, and defendant failed within a reasonable time to so load and transport such ties according to the terms of the contract, the contract would thereby be breached, and the defendant would be liable to the plaintiff for the damage proximately caused by such breach, unless the plaintiff with due notice of the breach negligently failed to minimize the damage. The special contract declared upon in this respect is not materially different from contracts between individuals for the performance of an act or service. The complaint alleges a special contract of service, entered into on the part of defendant by “its agents and servants duly authorized by it in that behalf,” a breach of the contract by the defendant, a damage to the plaintiff .as a proximate result. This presents a good cause of action, and, as we understand it, is in line with the holdings of the Supreme Court on former appeals.
[2]
Neither was the complaint subject to the ground of demurrer to the effect that the agent making the contract was not named. 2 Corpus Juris, pp. 904, 905.
' Counts 10, 11, and 12 present a different contention, to wit, that, the defendant being a common carrier, and holding itself out as such, and having plaintiff’s cross-ties presented t.o it at the usual places for carriage, and at reasonable times, it was the duty of defendant, under the law, to have received and transported plaintiff’s cross-ties within a reasonable time, and, failing in this duty, and damage having resulted, the defendant is liable.
[3,4]
Defendant was operating a steamboat on the Tennessee river, between Chattanooga, Tenn., and Albany, Ala., and holding itself out to the people along the river as a carrier of freight and passengers. Under our statute (Code, 5520, as amended by Acts Leg. 1909 [Sp. Sess.] p. 31), defendant was a common carrier, and under section 5549 of the Code of 1907 it was the duty of defendant to receive the plaintiff’s cross-ties for transportation whenever tendered at a regular station at proper hours, and in good shipping condition, according to reasonable rules prescribed by law or < the Railroad Commission. So far as has come to our attention the Public Service Commission (successors to the Railroad Commission) has not prescribed rules governing shipments of this kind, and therefore the reasonable rules of the common law must govern.
[5-7]
Being a common carrier, defendant was bound to receive the plaintiff’s cross-ties for transportation, and to carry them for a just compensation on the route navigated by its boats, is a rule too well settled to admit of controversy now. 1 Moore on Carriers, p. 118; 4 R. C. L. p. 658. But this rule also has its reasonable limitations. The obligation to receive and transport does not extend beyond the ability of the defendant to perform with the facilities and equipment at hand. If defendant’s boat and barges could have received and transported plaintiff’s- cross-ties along with its other freight, and within a reason-' able time, they having been tendered and at a suitable time and place, it was its duty to do so, and failing to perform this duty, and damage resulting, defendant would be liable. However, it was no part of the defendant’s duty; in the absence of special contract, to increase its equipment in order to transport plaintiff’s cross-ties. The obligation of the carrier is general, and embraces every one in the community alike, which it must serve without unjust discrimination (6 Cyc. 372; 1 Moore on Carriers, p. 116); but, in case of a steamboat company, this obligation does not extend beyond the present ability of the company’s equipment. There is a marked and well-defined difference 'between a steamboat company operating boats on a river open to the free navigation of all crafts desiring to-engage in serving the public and a railroad company granted kertain powers finder its charter, and serving exclusively a certain territory. In the one case the railroad must furnish sufficient facilities for the reasonably prompt transportation of goods tendered for carriage, while a steamship is only 'required to accept shipments tendered up to its-ability to transport. 4 R. C. L. p. 672. But the law requires both ship and railroad to carry indifferently, for all who may employ them, and in the order in which the application is made. 6 Cyc. 372, B.
So in the present case the defendant, operating a steamboat on the Tennessee river, would not be required to increase its facilities for handling freight tendered to it;, but it would be required to accept for shipment such freight as was tendered, and in the order of its tender, to the capacity of its present facilities. Therefore, if defendant’s boat leaves Chattanooga on its down trips with a full cargo, it would not- be required
to overload its vessel by taking on additional freight tendered at lower landings on that trip, but, upon finding at such lower landings freight tendered for transportation, with notice that it would remain there for defendant to transport, it was defendant’s duty to take such freight in its turn, and not to so place itself with reference to subsequent consignments as to render itself unable, within a reasonable time, to accept and transport the freight thus tendered at such lower landings. Such was its duty, a breach of which, coupled with damage, rendered the defendant liable, either for a breach of implied contract, or in tort, as the ease may be.
[8]
The complaint, after alleging facts constituting defendant a common carrier, alleges plaintiff as consignor, the tender of the cross-ties for shipment, notice to defendant, failure of defendant to accept and transport, and resulting damage. This was a declaration upon a breach of the implied contract, and was not subject to any of the grounds of demurrer interposed. Any special defenses were available to defendant by plea, and not by demurrer.
[9]
The plaintiff, while being examined as a witness, was allowed to testify, over the objection and exception of defendant that there were about 700 ties at Cross’ Landing; “that he got these figures from referring to books and memoranda.” It was not shown that witness had any independent recollection of the number of ties, and hence this testimony was illegal, and the objection should have been sustained. Holmes v. Gayle, 1 Ala. 517; 12 Michie’s Dig. 1208, § 180 (10).
All of the conversation had between plaintiff and the captain of the vessel with regard to the contract of shipment was admissible as part of the res gestae.
The other assignments of error, based upon the admissibility of testimony, are without merit.
[10]
Charges 2 and 4 wore doubtless good, on the first trial of this case, on the facts there presented, but on the present appeal, and on the facts appearing in this record, the charges ignore entirely the contract made between Capt. Willey, the general manager of the company, and plaintiff. Capt. Whit- . taker was only the captain of the vessel, and only authorized to contract with reference to his ship, while the testimony here tends to show a special contract with the corporation itself.
[11]
As a part of the declaration in count 7, plaintiff alleges:
“Thereupon (defendant) agreed with plaintiff to take up and load upon said steamboat and barges the cross-ties so placed at said landings by plaintiff.”
The evidence on this particular allegation was given by plaintiff himself, who said,' “I was to load the ties on the barge,” and, “There was an agreement between me and Whittaker that the barge was to be placed at the landing and that I was to load the ties on the barge.” This testimony was without conflict and prechided plaintiff from a recovery as to count 7. The affirmative charge as requested by defendant as to this count should have been given. N., C.
&
St. L. Ry. v. Woods, 155 Ala. 263, 46 South. 561.
Eor like reasons the general charges should have been given as 'requested by defendant as to counts 8 and 9.
[12,13]
As a general rule, the captain of a vessel is not the general agent of the owner with power to make general contracts as to shipments, but, under the facts in this case, it was a question for the jury as to what was the scope of the agency of Capt. Whit-taker. Therefore those charges seeking to limit the agency of Capt. Whittaker were abstract.
For the errors pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.