Wilkinson & Carroll Cotton Co. v. CHICAGO, M. & GR CO.

• Citation: 32 F.2d 553
• Decision Date: 10 May 1929
• Docket Number: No. 5146.,5146.
• Parties: WILKINSON & CARROLL COTTON CO. v. CHICAGO, M. & G. R. CO. et al.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

32 F.2d 553 (1929)

WILKINSON & CARROLL COTTON CO. v. CHICAGO, M. & G. R. CO. et al.

No. 5146.

Circuit Court of Appeals, Sixth Circuit.

May 10, 1929.

Geo. J. Leftwich, Jr., of Memphis, Tenn. (Wilson, Gates & Armstrong and Julian C. Wilson, all of Memphis, Tenn., on the brief), for appellant.

Clinton H. McKay, of Memphis, Tenn. (Chas. N. Burch and H. D. Minor, both of Memphis, Tenn., on the brief), for appellees.

Before DENISON, MOORMAN, and HICKS, Circuit Judges.

HICKS, Circuit Judge.

Appellant, herein called plaintiff, sued appellees, herein called defendants, for damages for the destruction of 122 bales of cotton by fire in the compress and warehouse of Churchill Compress Company at Dyersburg, Tenn., October 11, 1922. The case was tried upon an agreed statement of facts. Each party moved for a directed verdict. Defendants' motion was sustained and a verdict directed accordingly. It followed, of course, that plaintiff's motion was denied. The action of the court in these particulars is the matter presented for review.

Plaintiff was a cotton factor in business at Memphis. Defendants were common carriers by rail. In the cotton season of 1922-23 customers of plaintiff at Hickman, Ky., shipped cotton to it at Dyersburg, Tenn., care of Churchill Compress Company on straight bills of lading or on shipper's order notify bills of lading. Prior to October, 1922, defendants at the direction of plaintiff had delivered all such cotton to the Churchill Compress Company. With reference to such deliveries it is stipulated: "That by long established custom and course of business, of which plaintiff was aware, when cars loaded with cotton arrived at Dyersburg consigned to the Churchill Compress Company or to others in its care, or to parties who had directed that all their shipments of cotton be delivered to said Churchill Compress Company (whether moving under straight bills of lading or order notify bills of lading), such cars were immediately placed by defendants on the tracks above described serving the Churchill Compress at a point convenient for unloading, without other notice to said compress or to the consignees or owners of such cotton of the fact of such arrival and placement. And that defendants had no further service to perform to complete the delivery thereof to such compress."

While the parties were operating under such prevailing and mutually accepted arrangement and practice, the cotton in question along with other cotton was loaded into cars at Hickman, Ky., by the defendant Chicago, Memphis & Gulf Railroad Company. Some of it was shipped by one Bondurant and some by one Hale. Some of it was consigned to plaintiff on straight bills of lading and some on shipper's order notify bills of lading, but all of it was destined for Dyersburg care of Churchill Compress Company. The cotton was transported by the Chicago, Memphis & Gulf Railroad Company from Hickman to Dyersburg on October 2, 1922, in three cars and arrived at Dyersburg at 4:30 p. m. The cars were immediately delivered to defendant Illinois Central Railroad Company, and by the latter company, in accordance with the directions contained in the bills of lading and in previous instructions of plaintiff, were shortly after 4:30 p. m. placed on the private industry tracks of the Churchill Company adjacent to its unloading platform and at a convenient point for unloading. As reflected by that portion of the stipulation above quoted, this was a complete delivery of the cotton, unless the situation was changed by the following circumstances:

On the afternoon of October 2d (exact hour unknown) a representative of plaintiff telephoned Hattendorf, general freight agent, and Ryan, assistant general freight agent, of defendants, that plaintiff desired to divert future shipments of cotton consigned to it at Dyersburg from the compress of the Churchill Company to the compress of the Dyersburg Company, and was told that its desire would be complied with upon plaintiff giving written instructions to defendants' agent at Dyersburg changing shipping instructions; the new instructions to be confirmed in writing by the shipper to defendants' agent at Hickman. Plaintiff thereupon telephoned...