Prescott & Northwestern Railway Co. v. Davis, 126 Ark. 366

Prescott & Northwestern Railway Co. v. Davis

126 Ark. 366 | Ark. | 1916

Lead Opinion

Kirby, J.,

(after statifig the facts). The facts of this case are virtually undisputed. The cars of berries were started from Prescott on the night of the 8th of May, no bills of lading being issued therefor until the afternoon of the 9th, when it was known to appellant and the shipper that the cars had already passed Little Rock, the diversion point, and the shipper signed the bills of lading as written.

Appellee knew the cars had been billed from Prescott to Kansas City on the 8th; did not see the bill of lading until the 10th when he paid for the berries, and when he received the bills and inquired of the shipper as to the location of the cars he was advised they had gone straight on through Little Rock.

(1) The bills of lading were negotiable and were transferred and delivered to appellee upon his payment of value therefor and he thereby became the owner of the shipment. Martin v. Railway Company, 55 Ark. 525.

(2) Such bills insofar as they are receipts may be explained or contradicted but as contracts for carriage of property, they are to be construed according to their terms. Western A. & R. Co. v. Ohio Valley Bkg. & Tr. Co. (Ga.), 33 S. E. 821; Little Rock & etc. Rd. Co. v. Hall, 32 Ark. 669; Cleveland, C. C. & St. Louis L. R. Ry. v. Moline Plow Co., 41 N. E. 480; Merchants Dispatch Transp. Co. v. Furthmann, 36 N. E. 624.

(3) The carrier knew when the bills of lading were issued that they were negotiable and could be used to obtain advances on the shipment by attaching drafts thereto and discounting them with some bank, which would forward for delivery upon payment of such draft. These bills contain,no thing that would put the purchaser on notice that the shipment would not take the usual route as designated therein, the notation' made thereon by the carrier’s agent indicating that notwithstanding the shipment had been originally made to Kansas City, it had been diverted therefrom, and the purchaser understood that such was the case and had the right to rely upon the terms of the written contract of carriage or bill of lading, in making his purchase. Western & A. R. Co. v. Ohio Valley Bkg. & Tr. Co., supra.

(4) It w‘ll be presumed that any oral negotiations respecting the terms or conditions upon which the goods are to be received, the route and rate at which they are to be forwarded, are merged in the. bill of lading. 4 Elliott on Railroads, § 1423; St. L., I. M. & S. Ry. Co. v. Jones, 93 Ark. 545.

The evidence is undisputed as to the damage and no clause of the bill of lading providing for a different rule of computation was set up at the trial, nor urged as an objection to the measure of damages as assessed. There was no testimony showing the rate charged for the transportation of the shipment nor that the shipper had any other option than to ship under the terms of the contract as made, and at the rate charged.

We do not therefore see that any question can now be made that the damages were erroneously assessed upon a different basis than provided for in the contract of carriage of an interstate shipment. St. L., I. M. & Sou. Ry. Co. v. Cumbie, 101 Ark. 179; K. C. P. & G. Rd. Co. v. Pace, 69 Ark. 256.

The judgment is accordingly affirmed.

Rehearing

Hart, J.

(On rehearing.) Counsel for appellant ask for a rehearing upon the authority of Atchison, Topeka & Santa Fe Ry. Co. v. Harold, 241 U. S. 371.

(5) In that case the Supreme Court of Kansas held that the bill of lading v^as an intrastate bill, and that under the State laws an innocent holder of a bill of lading was invested with certain rights not available to the shipper. The court- there held that the bill of lading in question was an intrastate bill of lading, and its decision was therefore based wholly on the State statute in regard to innocent purchasers of bills of lading, and entirely ignored the general commercial law on the subject as laid down by the Supreme Court of the United States. The latter court held that the shipment was an interstate one, and therefore governed by decisions of the Supreme Court of the United States. This .court, in the case of Kansas City & Memphis Railway Company v. Oakley, 115 Ark. 20, and other decisions recognized that we are controlled by decisions of the Supreme Court of the United States in regard to interstate commerce bills of lading. The negotiable character of an interstate bill of lading is discussed in Pollard v. Vinton, 105 U. S. page 7, and the rule there stated has since been followed by the Supreme Court of the United States. In that ease the court said:

“A bill of lading is an instrument well known in commercial transactions, and its character and effect have been defined by judicial decisions. In the hands of the holder it is evidence of ownership, special or general, of the property mentioned in it, and of the right to receive said property at the place of delivery. Notwithstanding it is designed to pass from hand to hand, with or without indorsement, and it is efficacious for its ordinary purposes in the hands of the holder, it is not a negotiable instrument or obligation in the sense that a bill of exchange or a promissory note is. Its transfer does not preclude, as in those cases, all inquiry into the transaction in which it originated, because it has come into hands of persons who have innocently paid value for it. The doctrine of bona fide purchasers only applies to it in a limited sense. It is an instrument of a two-fold character. It is at once a receipt and a contract. In the former character it is an acknowledgment of the receipt of property on board his vessel by the owner of the vessel. In the latter it is a contract to carry safely and deliver. The receipt of the goods lies at the foundation of the contract to carry and deliver. If no goods are actually received, there can be no valid contract to carry or to deliver.”

This court also recognized this rule in the case of Martin v. Railway Company, 55 Ark. 510, and other cases. In that case following the decisions of the Supreme Court of the United States, the court, in effect, held that where a transportation company shows that merchandise was not actually received by it and that a bill of lading has been issued by its agent, either through fraud or mistake that, as the receipt of the goods lies at the foundation of the contract to carry and deliver, there can be no such contract unless the goods have actually been received; and that an agent of the carrier has no authority to issue a bill of lading without actual receipt of the goods, and can not bind the carrier, even as to an innocent holder of the bill of lading. A careful reading of the decision in the case of Railway Company v. Harold, supra, will show that the Supreme Court of the United States has not in any way departed from the rule announced in its earlier cases. We have not set out the facts in that case because they have no application whatever to the facts of the case at bar. In the instant ease the undisputed evidence shows that the strawberries were received by the carrier from the shipper, and that they were in good condition when delivered to the carrier. The uncontradicted evidence shows that the station agent had the authority to issue the bill of lading changing the destination of the strawberries. The berries were originally consigned to the shipper at Kansas City, but he had the right to have them diverted. The agent of the railroad company issued a bill of lading consigning them to Buffalo, New York, by the direct route through East St. Louis. The agent had authority to issue this bill of lading changing the route and destination of the berries, and it is not even claimed by the railroad company that he did not have such authority. Therefore, the railroad company is bound by the terms of the bill of lading issued by it. Because the undisputed evidence shows that the agent had authority to issue the bill of lading in question the court did not err in directing a verdict against the railroad company. It is true that railroad companies are not dealers in bills of lading and are carriers only; but they are held to rigid responsibility as carriers. As we have just stated, the agent had authority to issue the bill of lading in question, and the railroad company is bound' by its terms.

It follows that the motion for a rehearing must be denied.