Opinion
4 Div. 707.
April 19, 1917.
Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.
B. G. Farmer and T. M. Espy, both of Dothan, for appellant. Hill Thigpen, of Dothan, for appellee.
Action on the case by appellant against appellee to recover damages for the destruction of appellant's lien on certain cotton on which he held an equitable mortgage. It is not contended that the destruction of the warehouse of the defendant company by fire resulting in the loss of the cotton was produced by any negligent conduct on the part of defendant, but it is conceded that the compress was set on fire by having been struck by lightning. It is insisted, however, on the part of counsel for appellant, that the refusal of the defendant company to deliver the cotton to plaintiff upon demand was a wrong, constituting in fact an equitable conversion, giving him a right of action, and that therefore the fact that the cotton was subsequently destroyed by an act of God did not relieve defendant of liability, citing Welch v. Evans Bros. Construction Co., 189 Ala. 548, 66 So. 517, among other authorities.
The question of proximate cause of an injury has been a subject of frequent discussion by the courts. M. O. R. R. CO. v. Christian Moerlein Brewing Co., 146 Ala. 404, 41 So. 17; Tobler v. Pioneer Mining Mfg. Co., 166 Ala. 482, 52 So. 86. But we do not think it needs consideration here. In Welch v. Evans Bros. Construction Co., supra, there was evidence tending to show actionable negligence. In the instant case, it is insisted that the loss of the cotton should be referred to the wrong conduct of the defendant in refusing to deliver the cotton to plaintiff on demand. It is without dispute that the cotton was shipped to defendant company by another, and held by it merely as bailee; that, upon being notified by plaintiff of his claim thereto, the defendant so placed or segregated the cotton at its compress that it might be identified, and held the same; that this notice was given by plaintiff in October, 1914; that the cotton so remained in the compress until its destruction by fire in May or June, 1915; and that in the interim no action was taken by plaintiff to enforce his lien thereon.
Clearly, to give rise to the principle insisted upon by counsel for appellant, the wrong complained of must have been an actionable wrong. The plaintiff held only an equitable lien on the cotton which is shown from the uhdisputed evidence to remain segregated at the compress during all the time above referred to, subject to be proceeded against in the enforcement of his equitable lien. The authorities collated in Clark v. Johnson Lattimer, 7 Ala. App. 507, 61 So. 34, disclose that no right of action for recovery of damages arose in favor of the plaintiff against the defendant for the mere refusal on the part of defendant to deliver the cotton upon demand under the circumstances as here outlined.
No actionable wrongful conduct on the part of defendant having been shown, the plaintiff was not entitled to recovery, and very clearly, therefore, there is nothing in the record of which he can complain. The judgment appealed from will therefore be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.