Tate & Co. v. Yazoo & Mississippi Valley Railroad

78 Miss. 842 | Miss. | 1901

Terral, J.,

delivered the opinion of the court.

The appellee in this case recovered judgment by a peremptory instruction, and the appellants insist that a peremptory instruction should have been given in their behalf. On the twenty-eighth of September, 1897, the appellants loaded upon a car of the defendant company, at Clack’s station, twenty-four bales of cotton. The loading of the car was finished after sundown, and after the local freight train of that day, which was accustomed to take loaded cars from Clack’s, had passed on its return trip to Memphis, and no other local freight train, by which alone cotton was shipped from Clack’s, would arrive at said station until the evening of the next succeeding day. Early on the morning of the twenty-ninth of September the carload of cotton was wholly consumed by fire, and this suit, being a consolidation of five suits, is to recover its value. Tate & Co. operated a public gin at Clack’s, where the defendant company had a siding, but it had no station house or agent at that point. Japson and Keesee, who were in charge of Tate & Co.’s gin and plantation at Clack’s, testified that when it was desired to ship cotton, one of them would inform the conductor of the local freight train, and the conductor would set out there an empty car for loading, and that when the car was loaded and ready for transportation, the local freight train desired to take the loaded car would be flagged, and the conductor of it informed that the car was ready for transportation, when the conductor would sign the shipper’s loading account, if found correct, and attach the car to his train, and transport it to its destination. The contention of the appellants is that they had delivered the twenty-four bales of cotton to the defendant company, and that the cotton was burned while in its custody; that the cotton was actually or constructively delivered to the railway company, and that it is chargeable for the loss. We think, however, that it is quite clear that the railway company had never come into the possession of the cotton for transportation. The car, it was true, was the car of the company, and it was placed upon the company’s siding at Clack’s for being-loaded, and the cotton was loaded into the car, but no servant of the company had any notice of the car being loaded and ready for shipment. Keesee testifies that his recollection was (the trial being bad some time after the loss) that, when the car was loaded, a man was left there with it, with the shipping account filled out, in order to stop the train and get the conductor’s receipt for it. And it appears that the flagging of the-local freight train and delivery of the shipper’s loading account to the conductor was an essential feature of the shipping of cotton at Clack’s. But Japson and others conclusively show that the local freight train for that day had already passed before the car was loaded, and no other train that could have been expected to take the car would come by there until after the car was burned. There was no constructive delivery of the cotton to the railroad company. Its proper servant, the conductor of the local freight train, by which it was desired to have this cotton transported, knew nothing of its being loaded into the-car for shipment, and there could be no acceptance of the cotton for shipment without such knowledge, unless, indeed, there had been an agreement between the parties making the mere loading of the car an acceptance of the freight for transportation. But no such agreement was shown. On the contrary, the clear course of dealing between the parties at Clack’s showed, that the shipper was to flag the proper local freight train and. deliver to the conductor of the train the car to be transported, with the shipper’s loading account thereof. A bill of lading-is not essential to charge the carrier with the duty of safely transporting the property delivered for carriage, but the doing of the several acts entitling the shipper to a bill of lading is necessary to charge the carrier with the safety of the articles-intrusted to him. In this case, according to the course of dealing between the parties, there could have been no delivery of the cotton to the railroad company until it was loaded and the local freight train conductor had notice of the items of freight, its destination and of its readiness for transportation. Parties-desiring to hold common carriers to a stricter responsibility than that imposed by the common law, should provide therefor by contract, for, unless bound by contract, otherwise a carrier is not responsible for the safety of articles intended for shipment until a delivery of them to him and an acceptance thereof,, and there can be no acceptance until he has knowledge of their readiness for transportation and the shipper’s desire therefor. Hutch, on Carriers, ch. 4; Schouler on Bailment, ch. 3; Ang. on Carriers, ch. 140; 2 Kent’s Comm., *608; Railroad Co. v. Smyser, 38 Ill., 354, s.c. 87 Am. Dec., 301, 303.

Affirmed.