47 So. 805 | Miss. | 1909
Lead Opinion
delivered the opinion- of the court.
The controversy in this case arises under Code 1892, § 4299,. Code 1906, § 4851. That section 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.”
On the 10th day of June, 3905, the .railroad company issued to the Buckeye Cotton Oil Company, at Greenwood, Miss., ten bills of lading, covering two hundred and fifty bales of cotton linters, delivered to the railroad company for shipment to Bent & Co., at Boston, Mass., on the order of Hood & Co., of Jackson,, Miss., the cotton to be delivered to Bent & Co., Boston, on presentation of the bill of lading. The railroad company duly issued its bills of lading for the cotton and it is agreed that the bills of lading stated on their face that the aggregate was one hundred eighteen thousand, four hundred twenty-five pounds. . These bills of lading have, above the column where the weights are to be' inserted, the following: “Weights subject to correction.” The oil company attached the bills of lading to a sight draft on Hood & Co., of Jackson, Miss., predicating the amount drawn for of the value per pound of the cotton linters as shown by the-weights in the face of the bill of lading issued by the railroad company. Hood & Co., received the bills of lading and paid the drafts .attached thereto, and forwarded same to Bent & Co., of Boston, Mass., attaching the bill of lading to drafts on Bent & Co., adopting as the basis of the drafts the weights stated in the bills of lading issued by the railroad company. The cotton linters was transported by the Yazoo & Mississippi Valley Railroad Company and connecting carriers, in unbroken packages, from Greenwood, Miss., to Boston, Mass., and delivered to Bent & Co. The same two hundred and fifty bales of cotton linters received by the defendant, company at Greenwood were delivered to Bent & Co., in Boston.
The bills of lading, with the drafts attached, drawn by Ilood & Co. on Bent & Co., of Boston, Avere forwarded and paid by Bent & Co., and after payment of same and reweighing the-cotton it was ascertained by Bent & Co., the weights were twenty thousand, nine hundred and eighty-four'pounds short, aggregating in value $780.90, which amount of shortage was paid in full by Bent & Co. to Hood & Co.; that is to say,,
On these agreed facts a judgment was rendered by the trial •court in favor of the plaintiff for the sum of $893.37, being principal and interest on the alleged value of the shortage, and from this judgment the defendant appeals.
While the facts show that the oil company placed the weights in the bills of lading for the railroad company; there is no issue •of fraud made by the pleadings or the proof; nor is there any contention that the nature of the goods in this case is such that a loss in weight is natural, either from the operation of the elements on the character of goods, or as a natural result of being housed up for a period of time; nor is there any error apparent on the face of the bill of lading of any kind. We merely state these things to show what the real facts of this case are. The facts of this case bring it literally within the rule declared in
It is first contended in this case that Code 1906, § 4851, has no application, for the reason that the bills of lading here provide that the weights are “subject to correction.” Counsel for appellant therefore contend that, since the court has held in the-case of Hazard v. Illinois, etc., R. Co., 67 Miss. 32, 7 South. 280, that the statute in question is not a mere rule of evidence, but designed to change the character and legal effect of the contract evidenced by the bill of lading, therefore, say counsel for appellant, the party who takes under the bill of lading mpst take in accordance with the whole contract as formed by -the statute and the bill of lading, and, since the bill of lading provides that the weights are subject to correction, this provision cannot be repudiated by a party claiming to be a bona fide holder of the bill of lading, since by its very terms the bill of lading puts the party on notice of its right to correct discrepancies in weights. If this contention be sound, the statute in question would be of little use, since, by stamping on the face of every bill of lading that the weights were-subject to correction, it would have the effect of writing out of the law this statute. These bills of lading cannot be considered as contracts in the ordinary sense in which the word “contract” is used. A common carrier owes a duty to the public not imposed upon an individual. Such contracts are subject to regulation under the law, and when a lawful regulation has been imposed it is not within the power of the carrier to destroy the regulation by any printed form of contract required to be signed by shippers. As was said in the case of Laskey v. Southern Express Company, 92 Miss. 268, 45 South. 869: “Stipulations in shipping contacts of the character under discussion are made entirely for the benefit of the carrier, and will receive strict construction, to the end that through it just claims of shippers may not be defeated by dilatory methods in
The next contention of counsel for appellant is that the stat- ' ute itself is void, because it violates section 14 of the Constitution of the state, and the fourteenth amendment to the Constitution of the United States, in that it undertakes to prescribe a conclusive rule of evidence, thereby taking away from the courts their constitutional powers to investigate and pass upon facts, resulting in a deprivation of property without due process of law. In support of this contention one case is cited. That case is Missouri, etc., Ry. Co. v. Simonson, 64 Kan. 802, 68 Pac. 653, 57 L. R. A. 765, 91 Am. St. Rep. 248, decided by the Kansas supreme court on a statute nbt identical with, but similar to, the statute under discussion. We shall notice this decision later. Suffice it to say here that this decision was rendered by a court consisting of seven judges, three of whom dissented, and this case stands alone in its holding, so far as any other case has been cited by counsel, and in so far as a most painstaking search has revealed to us. The cases cited in the opinion of the majority do not sustain the decision, and are
In the case of Orient Ins. Co. v. Daggs, 172 U. S. 557, 19
In the case of Missouri Ry. v. Simonson, 64 Kan. 802, 68 Pac. 653, 57 L. R. A. 765, 91 Am. St. Rep. 248, the statute was , different from the statute here. The Kansas statute made the bills of lading conclusive proof as to the weight stated therein, not in the hands of a bona fide holder for value, as is the case with our statute, but in the hands of all parties. The dissenting opinion in the above case clearly shows that the opinion of
And again: “It is true the courts have not elevated a mere receipt to the grade of an estoppel; but they have often held
The third contention of counsel is that the statute is unconstitutional because it is an attempt to regulate interstate commerce, and in support of this proposition cites the cases of Central R. Co. v. Murphey, 196 U. S. 194, 25 Sup. Ct. 218, 49 L. Ed. 444, and Houston, etc., R. R. Co. v. Mayes, 201 U. S. 321, 26 Sup. Ct. 491, 50 L. Ed. 772. We do not think the cases cited have any bearing on this case. The statute in question attempts no sort of regulation of interstate commerce; neither does it impose any burden on same. All that the statute requires is that, when a bill of lading is issued, it speak the facts correctly. The railroad company owes it as a duty to the purchasers of goods bought on the faith of their statements as to weight that the bills of lading be accurate. The railroad has the power to make its bills of lading accurate. When it does not do so, it is its own neglect, and it should be the sufferer, and not an innocent party suffering by that neglect.
In the case of Central R. Co. v. Murphey, 196 U. S. 194, 25 Sup. Ct. 218, 49 L. Ed. 444, there was a Georgia statute which undertook to impose on the initial carrier, as a condition of availing itself of a provision in its contract of transportation that it would assume no liability beyond its own line, the duty of informing the shipper, in writing, ivhen, where, and how, and by which carrier, the freight was lost, damaged, or destroyed, and of giving the names of the parties and their official position, if any, by whom the truth of the facts set out in the information could be established, within thirty days after application to trace same, the initial carrier should be liable just as if the damage had occurred on its own line. The court held the statute of Georgia void as imposing a burden on interstate commerce, and very pointedly said: “The railroad company receiving the freight from the shipper has no means of
The case of Houston Ry. Co. v. Mayes, 201 U. S. 321, 26 Sup. Ct. 491, 50 L. Ed. 772, has no application to this case. That was a case where the Texas statute provided that, if a railroad company failed to furnish ears to a shipper within a certain number of days after requisition in writing had been made by the shipper, the railroad company should be penalized in the sum of $25 per day, excepting only where the failure occurred by reason of strikes or other public calamity. The Supreme Court of the United States declared this statute uncon
In the case of St. Louis & San Francisco Ry. Co. v. Matthews, 165 U. S. 1, 17 Sup. Ct. 243, 41 L. Ed. 611, the supreme court of the United States upheld a Missouri statute making the railway company liable for all property destroyed by fire from its locomotives, whether the fire was occasioned by negligence or not. It was not thought in that case that the Missouri statute violated any clause or section of the Constitution of the United States. In the case of Missouri Ry. Co. v. Simonson, 64 Kan. 802, 68 Pac. 653, 57 L. R. A. 768, 91 Am. St. Rep. 248, above referred to, the court holds that the Kansas statute referred to is not a violation of the'interstate commerce clause of the Constitution of the United States, the court observing that: “It does not regulate rates, nor levy taxes, nor impose restrictions of any kind on commerce between the states. It is a police regulation, designed to promote accuracy in dealings between shippers and carriers.” Affirmed.
Concurrence Opinion
delivered the following specially concurring opinion.
Treating the statute involved, and which is assailed as unconstitutional, as impairing the obligation of the contract and depriving of property without due process of law, as one which enlarged the rules of contract, by creating an estoppel, it seems to me clear that such statute is not unconstitutional. Mr. Wig-
It is earnestly insisted for the appellant that the clause, “Weights subject to correction,” is a term of this contract, and that, even treating the contract as composed of the bill of lading and also this statute written into the bill of lading, this statute is unconstitutional, because it deprives the railroad company of its property without due process of law, and also impairs the obligation of this term of the contract—“Weights subject to correction.” I think this argument as to the uneonstitutionality of this clause of this statute is fully answered by giving to this clause its manifest meaning. What is that meaning? Just this: That all such variations in weight as may be due to natural causes, atmospheric conditions, mistakes in addition, appearing on the face of the bill of lading, and other such incidental variations in weight, may be corrected; and this correction of these incidental and nonessential variations in weight