Alabama & V.R. Co. v. Pounder

• Decision Date: 19 October 1903
• Parties: ALABAMA & VICKSBURG RAILWAY COMPANY v. JAPHET M. POUNDER ET AL
• Court: Mississippi Supreme Court

35 So. 155

82 Miss. 568

ALABAMA & VICKSBURG RAILWAY COMPANY v. JAPHET M. POUNDER ET AL

Supreme Court of Mississippi

October 19, 1903

FROM the circuit court of, first district, Hinds county. HON ROBERT POWELL, Judge.

Pounder and others, appellants, partners doing business under the name "J. M. & C. B. Pounder," were plaintiffs in the court below; the railway company, appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court. The opinion of the court states the facts of the case.

Judgment affirmed.

McWillie & Thompson, for appellant.

The court below manifestly could not have rendered judgment against appellant on the idea that the proof showed a delay in the shipment, and it must have proceeded, in rendering the judgment, upon the idea that there was an unreasonable delay in delivering the goods after they reached Jackson. Even if appellant was in any way derelict in its duty about delivering the goods after they reached Jackson, such dereliction is not sued for and is outside of the declaration.

The court below erred in overruling appellants' demurrer to the declaration. It does not show when the Alabama &amp Vicksburg Railway Company received the freight or the car containing it. It is true that the declaration avers that by the joint negligence of the Mobile & Ohio Railroad Company and the Alabama & Vicksburg Railway Company, the car was dealyed, but there is no averment or charge that the two railroad companies were partners, or had any connection whatever with each other. A mere charge of negligence against two parties, without showing that they were under joint obligation, were partners, or in some way responsible each for the obligation of the other, is not a sufficient averment in the declaration to make it a cause of action against either. Facts must be pleaded. In this case, so far as the negligence is concerned, no facts are stated, and the demurrer should have been sustained.

When we come to look at the facts, we find that Mitchell & Company claim to have been the sales agents at Jackson of Pounder &amp Company, the plaintiffs. It will be noticed that it is quite difficult to determine from the record whether Mitchell is to be treated as a purchaser of the ties or as the agent of Pounder to sell them to other persons. One thing is certain, Mitchell & Company were not both the selling agents of the plaintiffs so far as concerns these ties, and at the same time the purchasers of the ties from the plaintiffs. The judgment in this case is predicated of the idea that Mitchell was the purchaser of the ties, but at the same time, the learned court below seems to have treated him as the agent of the plaintiffs, to whom notice should have been given of the reception of the ties at Jackson, in order to hold the railway company negligent in not delivering the ties earlier than upon the date upon which they were delivered. We insist that Mitchell & Company must stand in the one position or the other. If Mitchell was the purchaser of the ties, then the railway company was not negligent in failing to notify him or his company that the car of ties consigned to appellees had been received. If, on the other hand, Mitchell & Company were the selling agents of the plaintiffs, then the case must fail as against the railway company, because there was no sale of the ties by the plaintiffs, and consequently no loss sustained which they would not have sustained had the ties been delivered ten days before they were, since a man's loss who holds property unsold during a depreciating market must fall upon himself. It will be observed that the declaration avers that plaintiffs had sold the car of ties to Mitchell & Company of Jackson, and a judgment could not rightfully be rendered against the railway company which had for its basis a fact negatived by the declaration. When the court below, therefore, went off on the idea that Mitchell & Company ought to have been given notice as Pounder's agents that a car load of ties had reached the station, it went in the face of the declaration itself, because by the terms of the declaration Mitchell & Company were not the agents of the plaintiffs, but the purchasers of the ties from them.

The court below held that the company was derelict in not informing Mitchell that car 16,071 had reached Jackson, and that, too, when Mitchell had made no inquiry for such car, but had specifically, as he himself testified more than once, inquired for a car of a different number. This is where the court below went outside of the declaration, and gave the erroneous judgment which it rendered upon the misconception that Mitchell was the agent of the plaintiffs, that the railway company knew through its officials that Mitchell was the plaintiff's agent, and that it was guilty of negligence in not informing Mitchell of the arrival of car No. 16,071. To treat Mitchell as the agent of the plaintiffs is to ignore the charges on the subject in the declaration, and to give plaintiffs a recovery against the facts averred by them as the basis of their suit.

The judge below allowed himself to be confused, and, in order to reach the conclusion culminating in the judgment appealed from, treated Mitchell & Company as agents to whom notice should have been given, under all of the facts and circumstances of the case, when they were not agents in any sense. And further on the learned judge inconsistently adopted the idea that Mitchell & Company were purchasers of the ties in question, the judgment appealed from being predicated of both ideas. That Mitchell & Company were the purchasers was assumed to show a loss, and that Mitchell & Company were the agents of the plaintiffs was assumed in order to adjudge that notice should have been given them of the reception of a different car from the one for which they inquired.

Watkins & Easterling, for appellees.

We claim that this case is simply one of disputed facts, and these facts having been determined in our favor by the judgment of the court, they will not be reviewed in this tribunal. Dickson v. Vook, 47 Miss. 220; Walker v. Walker, 67 Miss. 533.

These facts are established:

1. That it was the custom of the A. & V. R'y Co. to notify consignee if they knew him, and if not, to notify his agent or person who was in the habit of receiving freight.

2. That Mitchell & Company were either the sales agents of Pounder & Company or they were the persons in the habit of receiving the freight.

3. That the A. & V. R'y Co. had been in the habit of notifying Mitchell & Company that J. M. & C. B. Pounder's freight was on the track.

4. That Mitchell called and inquired at various and sundry times, between August 31 and September 8, to ascertain if the appellant had any ties on its tracks for Pounder & Company.

Considerable doubt arises in the authorities as to whether or not it is the duty of the common carrier to notify a consignee of the arrival of goods. Some authorities contend one way and some another. However, it is not necessary for the court to pass upon this question, since all authorities agree and our court holds that where there is an established custom, that either the consignee or his agent shall be given notice, and the liability as carrier is not ended until notice is given. Railroad Co. v. Tyson, 46 Miss. 729; Railroad Co. v. White, 88 Ga. 814; Frank v. Grabd, 57 Mo. App., 181; Railroad Co. v. Cotton, 29 Ind. 498; notes to McKinney et al. v. Receiver, 90 N. Y., p. 267.

"Where it appears that the consignee of goods demanded their delivery several times and the carrier, without sufficient excuse, failed to deliver them, and the goods were afterwards destroyed by fire, the carrier was liable for the goods destroyed." Railroad Co. v. Arms, 15 Neb. 69; Railroad Co. v. McGuire, 79 Ala. 395; Central Trust Co. v. Railroad Co., 70 F. 764; Railroad Co. v. Morrison, 55 Am. Rep. 252.

Courts will not set aside verdicts on grounds of variance, unless parties have been misled in making their defense, and appellant was not misled, but had witnesses on hand, in order to meet the very case that we made, and there is not one intimation in the record that appellant was surprised at or misled by the testimony of the plaintiffs in the court below in reference to their contractual relations with Mitchell & Company. Upon the other hand, it is testified by Mitchell, and absolutely undisputed, that appellant knew exactly the kind of business he was carrying on with Pounder & Co. Code 1892, § 1718.

And certainly the appellant was not misled in making defense. That being true, the variance, if any variance there was, was immaterial and harmless as to the defendant, and being harmless to the defendant, and its liability having been the same, it certainly affords no justification for reversal of the judgment of the court below.

The appellant's attorneys, in their brief, spend much time upon this point: They say that the declaration charges an unreasonable delay in the shipment of the...