Loyd v. Kansas City, Memphis & Birmingham Railroad

40 So. 1005 | Miss. | 1906

Whitfield, O. J.,

delivered the opinion of the court.

Appellant sued appellee for $835 damages for failure to deliver to him, at Chapel Hill, North Carolina, 24,520 pounds of cotton, for the transportation and delivery of which, from Nettleton, Mississippi, to Chapel Hill, North Carolina, appellee had issued its bill of lading, acknowledging receipt of said number of pounds. This case was tried on an agreed state of facts by the court without a jury. The only facts which we deem it necessary to notice are as follows: The appellant prepaid the whole amount of the freight as on a through rate from Nettleton, Mississippi, to Chapel Hill, North Carolina, and the appellee received the amount of freight based upon the number of pounds (24,520) set out in its bill of lading as having been received by it. In other words, it was paid in full, in advance, for the transportation and delivery of 24,520 pounds of cotton. The railroad did not weigh the cotton, as it might very easily have done, when it received it at Nettleton. The bill of lading was indorsed by Smith & Goughian in blank. Smith & Goughian sold the bill. of lading while the cotton was in transit to the appellant, Loyd, and drew a draft on Loyd for the sum of $2,257.77, which was the purchase price of the said bill of lading for fifty bales of cotton, weighing 24,520 pounds. Smith & Goughian attached the said draft to said bill of lading, and forwarded the same to the Bank of Chapel Hill for collection; and upon presentation of the same by said bank to Loyd, he, at sight, paid said bank the said amount, $2,257.77, and received into his possession the bill of lading. When the fifty bales of cotton arrived at Chapel Hill, North Carolina, they were weighed and found to weigh 16,752 pounds, leaving the large shortage in weight of 7,768 pounds. From this fact it is perfectly obvious that the shortage could not possibly be due to shrinkage, or to any of the usual causes. The railroad company, in other words, manifestly never received, as a fact, 24,520 pounds of cotton; but it expressly took upon itself the liability of accounting for that amount, since this bill of lading was executed with full knowledge of the existence of sec. 4299 of the code of 1892, which is as follows: “Every bill of lading, or other instrument ’in the nature or stead thereof acknowledging the receipt of property for transportation, shall be conclusive evidence, in the hands of a bona -fide holder, for value, whether by assignment, pledge, or otherwise, as against the person or corporation issuing the same, that the property had been so received.”

The case of Illinois R. R. Co. v. Lancashire Ins. Co., 79 Miss., 114 (s.c., 30 South. Rep., 43), is conclusive against appellee, that it must respond for the number of pounds, which, by its bill of lading, it acknowledged it had received, since the deficiency is clearly not one due to any shrinkage, or ordinary loss of weight, but to the fact that the company never received it at all. Mere loss from shrinkage would not be affected by the statute named, but a substantial large loss, like the one in the case at bar, the carrier must respond for under this section, as held in this case, and as foreshadowed in the case of Hazard v. Illinois Cent. R. Co., 67 Miss., 32 (s.c., 7 South. Rep., 280). It was very distinctly announced by the court in this last case that this section is not “a mere rule of evidence, but has the design to change the character and legal effect of the contract evidenced by a bill of lading.” Learned counsel for appellee refers to a case from the supreme court of Alabama as his chief reliance, but an examination of sec. 4223 of the code of Alabama of 1896 shows that that section has no provision making a bill of lading “conclusive evidence” of the receipt by the carrier of whatever the bill of lading recites to have been reveived. That case is therefore not in point here under our statute.

Very much is said in argument about the alleged invalidity of the provisions in the bill of lading, as that the initial carrier shall not be liable beyond its own line for any loss or damage occurring, etc., and that the shipper shall be bound by all the conditions, limitations, etc., in the bill of lading, stamped or written, etc. Since it is a part of the agreed case that the identical fifty bales of cotton delivered to the carrier at Nettleton, Mississippi, were also safely delivered to Loyd at Chapel Hill, North Carolina, all this discussion is quite beside the mark. There was no loss or damage between the point of shipment and the point of destination. The only question in the case is whether the carrier is bound conclusively by the statement in the bill of lading that it received, and was to transport and deliver, 24,520 pounds of cotton as in the bill of lading stipulated. We have already decided that the liability is absolute, and now reaffirm that doctrine, under Code 1892, § 4299.

It follows that the judgment rendered by the court below must be, and is,-hereby reversed, and a judgment will be entered here in favor of the appellant for the sum of $195.22, with interest at the rate of six per cent per annum from the 9th day of February, 1903, to this date, and all costs. So ordered.

Reversed.