Oakey v. Executors of Gordon

7 La. Ann. 235 | La. | 1852

By the court:

Rost, J.

This is a suit to recover from the Succession of Alexander Gordon, the value of certain cotton, destroyed by fire on the cars of the Mexican Gulf Railway, which is the property of said succession. It seems that Gordon and others were the owners of the steamer M. A. Moore, habitually running from West Pearl river to Proctorville, at the lake end of the railroad. The cotton in controversy was shipped on the steamer at the former port, and the captain gave bills of lading, binding himself to deliver it at the port of New Orleans. It was landed at the lake end of the railroad, placed on the cars, and, in the transit from that place to New Orleans, destroyed by fire, communicated by sparks issuing from the chimney of the locomotive.

The defence as to all the cotton destroyed but one bale, is, that it was included in a bill of lading which excepted the dangers of fire.

It is urged by the plaintiffs and appellants, that this exception in the bill of lading should be limited to the dangers of fire on board of the steamer; that the perils of the sea and the dangers of fire ai'e found in the same clause of the bill of lading, and should both be considered as having exclusive reference to the sea voyage.

We think there is nothing in the bill of lading to authorize such a limitation to the exception. As was observed by the distract judge, the contract to cai'i'y the cotton from West Pearl river to the port of New Orleans, for fifty cents a bale, is entire; and, as nothing shows any intention to divide the risk, the clauses and exceptions in the bill of lading must be considered as entire. The transportation, partly by steamei-, and partly by railway, was within the usage of trade. It is reasonable to believe that it was in contemplation of the parties, and it might be inferred fx’om the evidence, that the gx’eater risk of fire on the railway was the cause of the exception in the bill of lading. The defendants have the same right to avail themselves of this exception, that the captain of the steamer would have.

One of the bales of cotton destroyed, was included in the bill of lading which did not except the dangers of fire; and, if the fact had been brought to the notice of the district judge on the trial, it is manifest, from his opinion, that he would have given judgment'in favor of the plaintiffs for its value; or, if the plaintiffs had made this erx’or in the judgment the gxuund of an application for a new trial, it is equally clear that the application would have prevailed. But, as neither was done, we think the matter in controversy is not of sufficient amount so authorize a reversal of the judgment. See Hann v. Graihle, 2 Ann.

Judgment affinned.