No. 25135. | Miss. | Dec 14, 1925
Appellees, M. Levy Sons, brought this action in the circuit court of Leflore county against appellant, Y. M.V.R.R. Co., to recover the sum of twelve thousand seven hundred ninety-three dollars and seventy-five cents, with interest, as damages by fire to forty-four bales of cotton belonging to appellees, alleged to have been suffered by him at the hands of appellant while said cotton was being transported by the latter from Tchula, in this state, to New Orleans, in the state of Louisiana. There was a verdict and judgment in favor of appellees for seven thousand one hundred ninety-six dollars and ten cents, from which judgment appellant prosecutes an appeal and appellees prosecute a cross-appeal.
Appellees shipped from their plantation in Holmes county, in this state, known as Horseshoe Plantation, to New Orleans, consigned to themselves, two separate lots of cotton, which were destroyed in part by fire while in transit. Appellees were domiciled in New Orleans; they operated the Horseshoe Plantation near Tchula, in Holmes county. Tchula is a station on appellant's line of railroad. On September 21, 1920, appellees, through their manager, delivered to appellant at Tchula thirty-five bales of cotton consigned to themselves at New Orleans, and obtained therefor the usual bill of lading. Twenty bales of this shipment were damaged by fire after having been loaded on appellant's cars at Tchula for shipment. On October 18, 1920, appellees delivered to appellant forty-six bales of cotton at Tchula *208 from their plantation for shipment to New Orleans, consigned to themselves, and received therefor two bills of lading, one for thirty bales of cotton and the other for sixteen bales. After being loaded on appellant's cars at Tchula, twenty-four bales of this cotton were damaged by fire. Forty-three bales were carried to New Orleans by appellant, and, after having been reconditioned in Kahn's Pickery, were tendered to appellees, which they declined to accept. Appellees claimed that the twenty bales of the September shipment were worth sixty-five cents per pound, and that the twenty-four bales of the October shipment were worth fifty cents per pound.
It will be observed that the shipments involved were interstate shipments — therefore the principles of law governing the measure of damages as declared by the United States supreme court govern. Where there is failure on the part of a carrier to deliver the goods intrusted to it for shipment, and such failure is either caused by the loss of the goods by the carrier or their damage or destruction, the owner's basis of recovery is the value of the goods at the time and place delivery is made, or, if delivery is not made, the time and place delivery should have been made, less freight charges. Chicago Railway Co. v. McCaull-Dinsmore Co.,
The cotton involved in this case was not delivered to appellees; they declined to accept tender by appellant of the forty-three bales of cotton.
It devolved upon appellees, in making out their case, to show by a preponderance of the evidence the market value of the forty-four bales of cotton at its destination (New Orleans) at the time it should have reached New Orleans in due course of transportation over appellant's line of railroad. One of appellant's contentions is that *209 appellees failed to meet that burden. Appellees' testimony tended to show the market value of the cotton on the days it was damaged by fire, September 21, 1920, and October 18, 1920. But, as we understand the record in this case, there is an entire absence of any evidence tending to show the market value of the cotton at New Orleans, its place of destination, at the time it was due to be delivered there. It is a matter of common knowledge that the fluctuations of the cotton market even over a period of only a few days are often very great; that in fact at times fluctuations in the market even for a day show rises and declines of as much as twenty-five dollars or thirty dollars a bale — probably more. Appellees doubtless could have shown and should have shown by their testimony when the cotton should have been delivered at New Orleans by showing the usual time it took appellant to carry cotton from Tchula to New Orleans. The market value of the cotton at the dates it was damaged by fire may have been materially higher or lower than its market value at the dates it was due at New Orleans.
Appellant contends, further, that the testimony failed to show, not only the market value of the cotton at the time it should have been delivered at New Orleans, but any value whatever, because there was no evidence as to the staple and grade of the cotton, and therefore no competent evidence as to the value of the cotton at any time; and that all the testimony on the subject was that of Charles E. Levy, of appellees' firm, which was entirely hearsay. Mr. Levy testified that in 1920 appellees produced on their Horseshoe Plantation only the Webber variety of cotton; that although he had not seen the particular cotton involved in this case, still he often visited the Horseshoe Plantation, and had seen other cotton raised on the plantation during 1920, and the staple of all of the crop of that year was from one and three-sixteenths of an inch to one and one-fourth of an inch. His testimony tended to show, further, that all *210 cotton produced by appellees on the Horseshoe Plantation in 1920 was substantially the same staple and grade. The particular cotton involved in this case the witness had not seen. We are of opinion that the evidence of the witness Levy was sufficient to go to the jury on the question of the staple and grade of the cotton; it appears to have been the best evidence obtainable. Appellees will not be denied a recovery for the injury they have suffered because, through the fault of appellant, appellees were unable to prove the exact staple and grade of the damaged cotton. They were only required to adduce the best evidence, which they did.
The testimony of the witness Levy as to the value of the cotton was confined to the dates it was damaged by fire. In addition, all of it was hearsay and therefore incompetent, except that part consisting of the New Orleans Cotton Exchange reports. Appellant argues that these reports were not admissible as evidence because they were not the best evidence, and because they related to the dates the cotton was damaged by fire and not the dates it was due to be delivered in New Orleans. The latter contention, as we have held above, is well founded; the former, we think, is not.
Cotton has a fixed market value from day to day, which is published by practically all, if not all, of the daily papers in the cotton belt. In addition to being published in the newspapers, the various cotton exchanges publish reports giving the market value of the different staples and grades of cotton, and also send them out through the mails to their members and customers. These market quotations are relied on by the cotton trade; they are accepted without question as containing the true market value of the different grades and staples of cotton in the cotton markets of the country. The cotton trade without questioning act on them, often investing enormous sums of money in cotton on the faith of their correctness. All of this is a matter of common knowledge, known to the court as well as to the cotton trade and *211 the public generally. The best evidence touching any given question of fact is that evidence which those concerned rely and act on. We are of opinion, therefore, that the daily market quotations, as published in the newspapers and sent out by the cotton exchanges of the country, are the best evidence of the market value of cotton for the period they cover; that a witness having knowledge of such matters will be permitted to identify and introduce in evidence without further verification such current market reports as evidence of such value. The only reason why the New Orleans Cotton Exchange reports offered in evidence by the witness Levy should have been ruled out was because they did not cover the time the cotton should have been delivered at New Orleans.
Appellant's special plea No. 1 set up the defense that the cotton in question was insured by appellees, who had collected the insurance, and that appellant was therefore entitled to set off or recoup the insurance so collected by appellant against the amount of its liability to appellees. There was attached to this special plea as a part of it the bills of lading for the cotton which contained, among other provisions, the following:
"Any carrier or party liable on account of loss or damage to any of said property shall have the full benefit of any insurance that may have been effected upon or on account of said property so far as this shall not avoid the policies or contracts of insurance."
That provision in the bill of lading was the basis of this special plea. Appellees made a motion for an order to require appellant to make the special plea more definite. This motion was overruled by the court. Thereupon appellees were allowed to file, and did file, a replication to the special plea, with which they filed as an exhibit thereto the original insurance policy covering the cotton involved. Appellant moved to strike out the replication, which motion was overruled. Thereupon appellant took issue on the replication. It will be observed, *212 therefore, that the question raised by the special plea and replication was whether the provisions of the insurance policy avoided that stipulation in the bill of lading above quoted. Neither appellant nor appellee offered any evidence on this question. Appellant urges that the burden of showing that the provisions of the insurance policy avoided the said stipulation in the bill of lading was on appellees; while appellees contend that it was on appellant.
By its special plea appellant averred that it was entitled to set off the amount of insurance collected by appellees on the cotton because of the provision in the bill of lading so providing. The plea set up an affirmative defense, a defense which appellant was required to prove, having pleaded it. And what was that defense? It was that the bill of lading gave appellant the benefit of the insurance provided to do so would not avoid the insurance policy. Appellees, instead of responding by replication to the plea, should have simply taken issue thereon. It was not necessary for the appellees to reiterate in their replication a material averment in appellant's plea. But appellees' replication, because of its form, did not change the burden of proof. The burden of proof will not be changed by mispleading unless the adverse party is misled by such mispleading. We hold that the burden was on appellant in establishing its plea to bring itself within the last clause of the provision in the bill of lading relied on by showing that to give appellant the benefit of the insurance would not avoid the insurance policy. We do not deem the other questions argued on behalf of appellant of sufficient seriousness to call for a discussion by the court; it is sufficient to say that we do not think they have any merit.
Neither do we think there is any merit in appellees' cross-appeal. There was sufficient evidence to go to the jury on the issue of whether the cotton was gin-fired or the fire originated after it had been delivered to appellant. It follows from these views that the case is affirmed *213 on both direct and cross-appeal as to the question of liability, and reversed on direct appeal for another trial on the question as to the amount of damages suffered by appellees on account of the October shipment.
Affirmed on direct and cross-appeal as to liability, and reversed on direct appeal as to the question of damages alone.
Affirmed and reversed.