159 F. 960 | U.S. Circuit Court for the Southern District of Georgia | 1908
Inman & Company, a firm of Augusta, have brought separate actions for damages for alleged breaches of contracts against the Seaboard Air Line Railway Company and the Atlantic Coast Line Railroad Company. As the terms of the contracts, and the issues raised by general and special demurrers by each of the defendants, are essentially the same, the causes are here considered as one. The amounts of the damages are gathered from alleged injuries to cotton, shipped from Augusta to “ship’s side at Savannah, Ga., and thence to Bremen, Germany.” Against the Coast Line, $33,-251.49 is claimed, and against the Seaboard $4,629.23. The declarations are made up of numerous counts or causes of action, each based upon special contracts with the defendants in the winter of 1902 and the subsequent spring, in connection with the Charleston & Western Carolina Railway Company, the initial carrier. The plaintiffs allege that the cotton was delivered to that company at Augusta, in lots of several bales, and “in good order and free from damage,” and was so received by the defendant carriers at connecting points in Yemassee
“That said bales of cotton, while in the possession of said common carrier -in Chatham county and before its contract of carriage had been completed, were damaged by exposure of said cotton to water and mud, to the loss of your petitioners in the sum of-dollars.”
The items making the loss are then stated:
“Damaged cotton picked off at-cents; loss of interest while cotton was being picked-; loss account of appearance of package and quality after picking; and the cost of picking off damage.”
From this is then subtracted “value of pickings,” and the added results in all the counts constitute the totals. The contracts, which are substantially identical for the several consignments of bales, are in the form of bills of lading. General and special demurrers to the declarations are filed, the former on the usual ground that no cause of action is stated, and that the carriers named are not the proper parties defendant. The special demurrers present objections in such detail, and so affecting the vital component parts of the counts in the two petitions, that to sustain a material number will in effect sustain the general demurrers also. The petitions charg-e:
“That said contract of shipment is set forth in a certain bill of lading, No. - (the number in each case being inserted), which, with the proper changes in the contract number, quantity, marks, and weights of bales, is substantially the same as the original bill of lading, of which the Exhibit A hereto annexed is a copy.”
On the hearing of the causes, the plaintiffs offered to amend as follows :
“The said contract of shipment is contained in that language of said bill of lading designating the goods shipped, the rate, the receipt of the goods in their then condition, and the route. The alleged ‘conditions’ set forth in said bill of lading constitute no part of said contract because they were not agreed to by your petitioners, but were inserted merely as an effort to limit the legal liability of the carrier. Such conditions are void, even if they had been agreed to, for the reason that there was no legal consideration to support them. Such conditions, and especially the following, are void because unreasonable. * * * ”
Then follow the conditions which are sought to be avoided. To the allowance of this amendment, the defendants again object, on several grounds: (1) That they introduce a new, additional, and independent cause of action. (2) That their effect, if allowed, will be to convert a suit upon contract into a suit in tort. (3) That the plaintiffs, having declared upon a special contract, now seek by the proposed amendment to claim they are not bound by the terms of that special contract; and for these reasons they ask that the amendments be disallowed and stricken. The plaintiffs, it will be seen, while conceding that there was a special contract with the defendants, contend that it was contained in only a part of the bill of lading, and that the conditions were neither part of the contract nor agreed to by them. Can the shippers, then, after not only declaring upon a special contract, and alleging that it was in writing, and at the same time attaching a copy and expressly making it a part of their petitions, be now
“A plaintiff cannot declare upon a special contract with a carrier, and then by amendment claim that he is not bound by the terms of such special contract, and add a new and distinct cause of action.”
And the court further held that the effect of the amendment “would be to repudiate the contract upon which in the original petition (the plaintiff) based his cause of action.” Besides, it is true that to allow the amendments would be to annul that salutary parol evidence rule, which forbids the admissibility of extraneous testimony to vary or contradict the terms of a written instrument. The doctrine is held applicable to cases of this character by the Supreme Court of Georgia, in Western & Atlantic R. Co. v. Trust Co., 107 Ga. 512, 517, 33 S. E. 823, where it was said:
“The general rule is that a bill of lading, as a contract expressing the terms and conditions upon which the property is to be transported, is to be regarded as the sole evidence of the final agreement, in which are merged all prior and contemporaneous agreements of the parties, and, in the absence of fraud or mistake, its terms or legal effect cannot be added to, explained, nor contradicted by parol.”
Again, in Wetzell v. Dinsmore, 4 Daly (N. Y.) 195, we find the following: :
“If the plaintiff relies upon the bill of lading as evidence of the contract to carry, lie cannot adopt one part of it and reject the rest. If it is to be used at all as an Instrument of evidence on his part, it must be taken altogether, and the contract collected from all that is contained in it.”
What a plaintiff cannot introduce as evidence he cannot set up in his pleadings as the basis of his action. Near the outset of the bill of lading, and immediately following the written language, which the plaintiffs admit was part of the contract, appears the following:
“In consideration of the rate of freight herein named, it is hereby stipulated that the service to be performed hereunder shall be subject to the conditions, whether printed or written herein contained, and said conditions are hereby agreed to by the shipper and by him accepted for himself and his assigns as just and reasonable.”
Immediately below this are the “conditions” which the plaintiffs would avoid. That they are part of the contractual language is evident from the fact that they are followed by the subscribing clause of
At this stage of the case, it must be presumed that the bill of lading expressed the contract between the parties. It is true that the common-law liability of a carrier cannot be limited by conditions expressed in a mere notice to the particular shipper, or to the general public, nor can this be effected in a mere receipt for the goods, or, generally, where the conditions are printed on the back of the bill of lading or stamped across its face. The Majestic, 166 U. S. 375, 17 Sup. Ct. 597, 41 L. Ed. 1039; Michigan Central R. Co. v. Mineral Springs Co., 16 Wall. 318, 21 L. Ed. 297; Doyle v. Baltimore & Ohio R. Co. (C. C.) 126 Fed. 841. That principle of law is embodied in section 2276 of the Civil Code of Georgia of 1895, which provides:
“A' common carrier cannot limit his legal liability by any notice given, either by publication or by entry on receipts given, or tickets sold. He may ■make an express contract, and will then be governed thereby.”
Construing this statute, it was held in early decisions by the state Supreme Court that the onus of proving an express contract is on the carrier, and that no presumption of law arises merely from the shipper’s receipt of a bill of lading. Southern Express Co. v. Barnes, 36 Ga. 532; Southern Express Co. v. Newby, 36 Ga. 635, 91 Am. Dec. 783; Southern Express Co. v. Purcell, 37 Ga. 103, 92 Am. Dec. 53. But later decisions, and the great weight of authority, are to the contrary. Central R. Co. v. Hasselkus, 91 Ga. 385, 17 S. E. 838, 44 Am. St. Rep. 37; Western & Atlantic R. Co. v. Ohio, etc., Trust Co., 107 Ga. 512, 33 S. E. 821; McElveen v. Southern R. Co., 109 Ga. 249, 34 S. E. 281, 77 Am. St. Rep. 371. It is well settled that if conditions are printed or written on the face and in the body of the bill of lading, where the consignor receives the bill, and ships his goods without complaint, he is presumed to have consented to those provisions, and they become, if not inimical to law, a valid and enforceable contract. Unless the statute of the state so requires, the shipper’s signature is unessential, and a unilateral bill of lading or receipt may express the contract. Moore on Carriers, 299 ; Hutchinson on Carriers, §§ , 126, 238-242; Wheeler on Carriers, 273; York Co. v. Central Railroad, 3 Wall. 107, 18 L. Ed. 170; Wertheimer v. Pa. R. Co. (C. C.) 1 Fed. 232; Germania Fire Ins. Co. v. Memphis R. Co., 72 N. Y. 90, 28 Am. Rep. 113; Belger v. Dinsmore, 51 N. Y. 166, 10 Am. Rep. 575; Merchants’ Dispatch Co. v. Leysor, 89 Ill. 43; Illinois Cent. R. Co. v. Frankenburg, 54 Ill. 88, 5 Am. Rep. 92; Smith v. American Express Co., 108 Mich. 572, 66 N. W. 479; Piedmont Mfg. Co. v. Columbia, etc., R. Co., 19 S. C. 353; Grace v. Adams, 100 Mass. 505, 97 Am. Dec. 117, 1 Am. Rep. 131; Cox, Brainard & Co. v. Peterson, 30 Ala. 608, 68 Am. Dec. 145 ; 4 Am. & Eng. Enc. Law, 521. The principle has moreover been authoritatively determined by the Supreme Court in Cau v. Texas Pacific R. Co., 194 U. S. 427, 24 Sup. Ct. 663, 48 L. Ed. 1053, where it was held:
“ * * * Tbe carrier may modify his responsibility by special contract with a shipper. A bill of lading limiting liability constitutes such a contract, ■and knowledge of the contents by the shipper will be presumed.”
“Shippers have been held bound by the Are clause in a bill of lading, even when they claim that they did not know that the clause was in the hill oí lading. Failure to read the bill of lading has been held under such circumstances not to avail the shipper.”
This opinion, as stated, was affirmed by the Supreme Court. See, also, Charnock v. Texas Pacific R. Co., 113 Fed. 92, 51 C. C. A. 78. I ‘retermitting, however, the presumption of law arising from the language of the bill of lading, and its acceptance by the plaintiffs, they must be held concluded by their pleadings, where they have expressly alleged that the bill of lading contains their contract, and have made it part of their petition.
For the purposes of this demurrer, the bill of lading then must be regarded as embodying the contract of the parties. It remains to be determined whether there be any rule of law or of public policy which renders that contract void or unenforceable. Independently of special contract, it is the law both in this country and in England that a common carrier owes a duty to the public to carry for a consideration the goods intrusted to it, free from negligence. Under the common law, the carrier was liable not only for the acts of negligence of its servants, but as ail insurer of the absolute safety of the goods from loss or injury. This former rule of liability is expressed by Justice Field, in York Co. v. Central Railroad, 3 Wall. 107, 18 L. Ed. 170, as follows:
The füiimion carrier “is chargeable i'or all losses except such as may bo occasioned by the act of God or the public enemy. He insures against all accidents which result from human agency, although occurring without any fault or neglect upon his pari, and he cannot by any mere act of his own avoid the responsibility which the law thus imposes.”
Hannibal R. Co. v. Swift, 12 Wall. 262, 20 L. Ed. 423; Johnson v. East Tenn. R. Co., 90 Ga. 810, 17 S. E. 121. The rigor of that doctrine upon the carrier has, however, been largely modified by statute in probably every state of the Union, so that it is now well settled that a common carrier may by just and reasonable contracts limit the extent of its common-law liability. But the rule is equally well settled, and obtains as universally, that a carrier cannot contract to relieve itself from damages resulting from its own negligence or that of its servants. Moore on Carriers, 287. From the quasi public character of their business, and the duties they owe to the public, contracts between carriers and shippers have always been subject to the closest scrutiny of the courts, with a jealous endeavor to guard the rights of the weak, ignorant, or inexperienced. For this reason, they are not to be construed by the ordinary legal rules which govern private contracts, but with due regard for the relative positions of shipper and carrier, and the common-law- and statutory dudes of the latter. We find, therefore, in the earlier cases and texts the principle laid down that a condition limiting common-law liability must not only be. reasonable, and impose no unnecessary harshness on the shipper, but there must be a special consideration, such as a lower cost of transportation, additional to the
“A special contract between a shipper and a common carrier, or a stipulation in a bill of lading, qualifying or limiting the common-law liability of the carrier, must be supported by a valuable consideration apart from their mere acceptance of the property for carriage and agreement to transport it, such, for example, as an actual reduction from the usual freight rate, or additional facilities for transportation. Both rates of transportation offered the shipper must be reasonable, and he must be given the option to mate his selection in order to render the consideration of a reduced rate valid and sufficient.”
In the case of Georgia R. Co. v. Reid; 91 Ga. 377, 17 S. E. 934, it was held that a stipulation limiting liability was not valid unless made for reduced rates of shipment. See, also, Hutchinson on Carriers, §§ 404, 475; Elliott on Carriers, § 1504; Lake Erie & W. R. Co. v. Holland, 162 Ind. 406, 69 N. E. 138, 63 L. R. A. 948; Mears v. New York R. Co., 75 Conn. 171, 52 Atl. 610, 56 L. R. A. 884. But the construction by the Supreme Court of that theretofore essential element of validity seems to have considerably modified or annulled the former doctrine. Said Mr. Justice McKenna, expressing the unanimous decision of the Court in Can v. Texas Pacific R. Co., 194 U. S. 427, 24 Sup. Ct. 663, 48 L. Ed. 1053:
“It is urged that the contract must be upon a consideration other than the mere transportation of property, and an option and opportunity must be given to the shipper to select under which, the common law, or limited liability, he ships the goods. • If this means that a carrier must take no advantage of the shipper, or practice no deceit upon him, we agree. If it means that the alternative must be actually presented to the shipper by the carrier, we cannot agree. * * * Primarily, the carrier’s responsibility is that expressed in the common law, and the shipper may insist upon the responsibility. But he may consent to a limitation of it, and this is the ‘option and opportunity’ which is offered to him. What other can be necessary? There can be no limitation of liability without the assent of the shipper, * * * and there can be no stipulation for any exemption by a carrier, which is not just and reasonable in the eye of the law. * * * The consideration expressed in the bill of lading was sufficient to support its stipulations. This effect is not averted by showing that the defendant had only one rate. It was the rate also of all other roads, and presumably it was adopted and offered to the shippers in view of the limitation of the common-law liability of the roads.”
The plaintiffs contend here that the conditions in the bill of lading are invalid because without any consideration to support them. But the bill of lading given to Inman & Co. shows that the inland charges from Augusta to Savannah were paid, and that a specific rate of 23 cents a 100 pounds ocean freight was guaranteed from Savannah to Bremen. The language of the contract itself leaves no doubt. It provides :
“In consideration of the rate of freight herein named, it is hereby stipulated that the service to be performed hereunder shall be subject to the conditions- * * * herein contained. * * * ”
The plaintiffs make no assertion of duress or hardship in their ac- ' ceptance of these termé. Had they insisted, they might have demanded
“A common carrier, holding liimsolf out to the public as such, is bound io receive all goods and passengers offered, that he is able and a ecus comed to carry, upon compliance with such reasonable regulation as he may adopt for his own safety and the benefit, of the public.”
Nor could the defendants have limited their liability as insurers save by contract. Section 2276, Code Ga. 1895. Besides, it appears from the declarations that the Coast Tine and the Seaboard received _ these bales of cotton, not as initial, but as connecting, carriers. Their duty to the plaintiffs was the more plain. The statutes of the slate required them to receive from the Western & Carolina “all cars containing freight consigned to any point on the road to which the same is offered.” Had they refused, the precise damages recoverable were readily ascertainable. The law of Georgia expressly gives a right of action to tlie consignee, shipper, or owner for any refusal to receive goods from connecting carriers, and affixes a penalty of “not less than ten per cent, nor more than twenty-five per cent, of the value of the goods so refused to he received.” In view of these considerations, and the ruling of the Supreme Court, the contention that the conditions were unsupported by a consideration cannot be held maintainable.
It is, however, insisted that certain of the conditions in the bill o f lading were unreasonable, and therefore must be regarded as void. As we have seen, stipulations for exemption must be “just and reasonable in the eye of the law,” and “a carrier must take no advantage of a shipper, and practice no deceit upon him.” Can v. Texas Sr Pacific 'R. Co., supra. The established rules against fraud, misrepresentation, or duress are applicable to the fullest extent. The contract must he fairly made by the carrier, and freely entered into by the shipper. Moore on Carriers, 302. The question of reasonableness is for the court, and the burden of proof is on the carrier. South., etc., Ala. R. Co. v. Henlein, 52 Ala. 606, 23 Am. Rep. 578.
The second condition in the hill of lading is as follows:
“No carrier or party in possession of all or any of the property herein described, símil be liable for any loss thereof or damage thereto, by causes beyond its control or by Hoods or by fire; jettison, ice, collision, stranding or other accidents of navigation : or by delay, quarantine, or by riots, strikes, stoppages of labor, or by leakage, breakage, chafing, loss in weight, decay, vermin, changes in weather, heat, frost, wet or country damage on cotton! or for shrinkage of grain or seed carried in bulk; or from any cause, if it be necessary or is usual to carry such property upon open cars or upon deck.”
The reasonableness of many of the causes inserted in this paragraph may at least be doubted, particularly the “omnibus” clause which is aimed to protect the carrier from liability “from any cause, if it he necessary or is usual to carry such property upon open cars or upon deck.” It is also obvious that the carriers cannot exempt themselves by stipulations against floods, fire, jettison, ice, delay, riots, strikes, leakage,,
“Although the injury may have been occasioned by one of the exempted causes in the bill of lading, yet still the owners of the vessel are responsible,*971 if the injury might have been avoided by the exercise of reasonable skil; and attention on the part of tile persons employed in the conveyance of the goods. But the onus probandi then becomes shifted on the shipper to show the negligence.”
Since Inman & Co. declare upon special contracts, an essential part of which are conditions exempting the defendants from liability, if, as appears, “water and mud” and “wet and country damage” were synonymous, besides a general allegation of injuries, they must allege some specific acts of negligence in connection with the damages through “water and mud.” This they have failed to do.
Another very material condition in the bill of lading is that which requires notice to the carriers of any injury suffered. It is as follows:
•■Claims for loss or damage must bo made in writing to tlio agent at point of delivery promptly after arrival of the property, and if delayed more than 30 days after the delivery of the property, or after due time for the delivery thereof, no carrier hereunder shall be liable in any event.”
The plaintiffs contend that this condition is unreasonable, and imposes an unnecessary hardship upon them, and that, therefore, it is ineffective to relieve the defendant railroad companies of liability. The pleadings of the plaintiffs charge no notice, and it appears that: none was given. If, then, the requirement that notice shall be given is reasonable, and controverts no principle of law, as it is an essential part of the contract (as we have seen), it must defeat the plaintiffs’ right to recover. In determining the reasonableness of conditions, no universal rule has been announced, but the court must determine from the face of the pleadings, and if this is insufficient, after full proof, whether the condition is reasonable under the particular facts of each case. Where proof is submitted, the burden is upon the defendants to show that the rule imposed on the shipper is reasonable. Hutchinson on Carriers, §§ 443, 447; Elliott on Carriers, 1512, 1514. Where no hardship to the shipper appears, requirements of notice have been uniformly sustained by the courts. Such a stipulation is not an attempt to limit the common-law liability of the carrier. 4 Am. & Eng. Enc. of Law,. 516. Notice may be waived by the carrier, but it is incumbent upon the shipper to show such waiver. Elliott on Carriers, 1514. The-reason and justice of conditions of this character is stated in Hutchinson on Carriers (2d Ed.) § 259, as follows:
‘•The object of such a stipulation is to enable the carrier, while the occurrence is recent to ascertain what the facts are, and having made his claim,, the ovner may delay his suit to any time limited by the law. ‘There Is no»' hardship * * * in requiring the bailor to give notice of the loss, if any, or make a claim for compensation within a reasonable time after he has delivered the parcel to the carrier. There is a great hardship in requiring the (nrrier to account for a parcel after a long time, when he has had no notice* of any failure of duty on his part, when the lapse of time has made it difficult, if not impossible, to learn the actual facts.”
See, also, Moore on Carriers, 333.
Under the particular facts in the cases involved, various courts have upheld conditions requiring notice by the shipper or consignee to the carrier, for times varying from 30 to as low as 3 clays after the arrival of the goods. The condition in the case at bar has been often upheld
“The carrier may lawfully stipulate that any claim for damages growing out of the carrier’s negligence shall be made within a reasonable time, and ten days has been held to be a reasonable time.”
The Court of Appeals of the state of Illinois has repeatedly held that a stipulation requiring notice within five days after the damage is reasonable and valid. Chicago & A. R. Co. v. Simms, 18 Ill. App. 68; Wabash, St. Louis, etc., R. Co. v. Black, 11 Ill. App. 465. In Sprague v. Railway Company, 34 Kan. 347, 8 Pac. 465, a similar question arose under a stipulation which provided “that as a condition precedent to the right (of the shipper) to recover damages for any loss or injury to horses while in transit, the shipper would give notice of his claim therefor to some officer of said railway company, or its nearest station agent, before the horses were removed from the place of destination, or from the place of delivery, to the shipper, and before such horses were mingled with other stock.” It was held that this was reasonable, and binding upon the parties. A case involving the validity of a stipulation almost identical with this Kansas case recently came before the Supreme Court of Georgia, in Southern Ry. Co. v. Adams, 115 Ga. 705, 709, 42 S. E. 35, 36, and the court observed:
“ * * * Such a stipulation prejudices no right of the owner or consignor, and, at the same time, protects the transportation company; and, following the authorities above cited, we must not only rule that the carrier could lawfully make a contract containing a stipulation of this character, but that such a stipulation is a reasonable one.”
In Express Company v. Caldwell, 21 Wall. 264, 22 L. Ed. 556, the Supreme Court of the United States upheld a stipulation by an express company that a claim for loss should be made within 90 days after the delivery of the goods for consignment. There, Mr. Justice Strong-observed for the court:
“A common carrier is always responsible for his negligence, no matter what his stipulations may be. But an agreement that in case of failure by the carrier to deliver the goods, a claim shall be made by the bailor or by the consignee within the specified period, if that period be a reasonable one, is altogether of a different character. It contravenes no public policy, it excuses no negligence. It is perfectly consistent with holding the carrier'to the fullest ■measure of good faith, of diligence, and of capacity, which the strictest rules of the common law ever require.”
The rule which was placed in the bill of lading now before the court was entirely reasonable. The plaintiffs had ample time and opportunity to notify the Seaboard and the Coast Rine of their alleged injuries. The transit of the cotton from Savannah to Bremen would have required no more than 2 weeks, and the bills of lading only required notice within 30 days after the delivery of the property at Bremen. The alleged damages on account of mud and rain occurred in Savannah before the bales were loaded on the vessels. Inman & Co. in the exercise of proper diligence could have readily ascertained the damages, and notified the carriers before 30 days had elapsed from the time the
Voluminous objections were also raised by special demurrers, to sustain any material number of which must, as stated, in effect sustain the general demurrers. A material ground is that the plaintiffs have alleged no title or interest in the cotton giving them a right of action. Had Inman & Co. alleged such title, the defendants would he estopped to deny it. Code Ga. 1895, § 2286. Actions upon contracts “must be brought in the name of the party in whom the legal interest * * * is vested.” Code Ga. 1895, § 4939. That interest may be one of either a general or special owner. In the case of Minturn v. Alexandre (D. C.) 5 Fed. 117, libel was brought for the recovery of damages to a cargo, and it was held by Judge Choate that the libel “should contain averments, showing unequivocally, and with reasonable certainty, that the libel-ants had such a special or general right of property in the cargo, that by its loss or injury they had suffered damage.” See, also, New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 How. 344, 12 L. Ed. 465. To establish a good cause of action, it was essential for Inman & Co. to allege some ownership or interest. It is nowhere alleged that they had any connection with these bales of cotton other than contracting for their transportation. In justice to their right of protection against claims for the same injuries by other parties at interest, the defendants should know the connection of the plaintiffs. The bills of lading and the cotton may have been assigned or sold by the shippers after or even prior to the time the bales reached Bremen, or Savannah, and prior to these actions. While full detail was unnecessary, Inman & Co. should have put the railroad companies on notice of what interest they claimed, for it is vital in determining not only the right, but the amount of damages recoverable.
The petitions have been attacked upon the additional ground that they fail to properly allege a breach of contract, and that the charge that the cotton was damaged “while in the possession of said common carrier in Chatham county * * * and before its contract of carriage had been completed,” is insufficient, as a mere conclusion of the pleader. The time, place, and manner of the injuries, as well as the specific acts of negligence, it is said must be stated. While the objection to the allegation of breach may be regarded as hypercritical, and, as we have seen, the rule in this state does not require the plaintiff ordinarily to allege specific acts of negligence, it is none the less true that the injuries or losses complained of must be definitely and fully stated. This is not done in these petitions. There is no statement where the injury occurred other than in “Chatham County,” whether during its transportation to the defendants’ depots by reason of improper protection, or by exposure after arrival there, or while being loaded aboard ships. A defendant is entitled, when he presents a special demurrer, to be fully informed of the facts upon which the plaintiff would hold him liable. Fontaine v. Baxley, 90 Ga. 428, 17 S. E. 1015; Railroad Co. v. Mitchell, 95 Ga. 85, 22 S. E. 124; Kemp v. Central of Ga. R. Co., 122 Ga. 562, 50 S. E. 465. Besides these defects, the petitions are open to further objections that the items of damage are
That said loss was made up as follows:
-lbs. damaged cotton picked off, at-cents...............
Loss of interest while cotton was being picked.....................
Loss account of appearance of package and quality after picking....
Cost of picking off damage.......................................:
Total ....'..................................................§--
Less value of pickings.............................................$-
It is not stated when, where, how, by whom, or by whose authority the damaged cotton was picked off, nor, if the cotton was in fact injured, the necessity for its picking. Nor is the item stated as “loss of interest while cotton was being picked” sufficient. To recover such damages, the necessity of picking must be shown, the time required, and that it was as expeditious as possible. Besides the method of computation, the principal, time, and rate of interest are undisclosed. The following item presents equally grave difficulties. It does not show how the appearance of the package was altered, nor the method of arriving at the damages. These must be exact and definite, remote and speculative damages are not recoverable. Tompkins Co. v. Monticello Cotton Oil Co. (C. C.) 153 Fed. 817. If the plaintiffs had to sell the cotton at reduced prices, under special contracts or subsequent sales, such contracts must have been in existence, or their contemplation made known to the defendants prior to the execution of these bills of lading. If the plaintiffs do not seek to recover under this measure of dámages, they must show, in order to be entitled to these items, that the cotton was sold for the highest price obtainable by due diligence to sell, and that the difference in price was not due to their laches, but was directly connected with the injuries to the cotton. The other averments do not show either the necessity of picking, or that the pickings of cotton were sold as advantageously as possible. There is, moreover, a clause in the bills of lading which provides that the value of the goods lost or injured shall be “computed at the value of the property at the place and time of shipment.” Such a clause has been held reasonable, and has been uniformly sustained. Central of Ga. R. Co. v. Murphey, 113 Ga. 514, 38 S. E. 970, 53 L. R. A. 720; Louisville & N. R Co. v. Oden, 80 Ala. 38; Chicago, R. I., etc., R. Co. v. Harmon, 17 Ill. App. 640; 5 Am. & Eng. Enc. of Law, 335.
Tire plaintiffs have not stated the quality or grade of the damaged cotton picked off. Certain values per pound, varying in different fractional amounts above 10 cents, are given, but the time of valuation, or the place where the market value was estimated, whether in Augusta, Savannah, or Bremen, does not appear. As the condition in the bill of lading required, the pleadings must show that the damaged cotton was estimated from market prices in Augusta, for each lot of bales.
These are material insufficiencies vital to the plaintiffs’ right of recovery. There are in addition other serious defects, which in view of those hereinbefore stated, it is not essential to discuss. The dedemurrer of the defendants to the amendments offered by the plaintiffs will be sustained, and the amendments disallowed. The general and the special demurrers must, for the reasons stated-, also be sustained.