Jordan v. Mississippi Cent. R. R. Co.

• Decision Date: 08 June 1914
• Docket Number: 16387
• Citation: 65 So. 276,107 Miss. 323
• Court: Mississippi Supreme Court
• Parties: Z. W. JORDAN v. MISSISSIPPI CENT. R. R. CO

65 So. 276

107 Miss. 323

Z. W. JORDAN v. MISSISSIPPI CENT. R. R. CO

No. 16387

Supreme Court of Mississippi

June 8, 1914

APPEAL from the circuit court of Lamar county. HON. A. E WEATHERSBY, Judge.

Suit by Z. W. Jordan against the Mississippi Central Railroad Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

J. T Garraway and J. W. Shanks, for appellant.

Appellee is trying to escape and evade the payment for the loss and damage of the goods, on the ground that the plaintiff below did not show that the appellee ever received the goods in good condition, or that it was their road on which the loss and damage occurred, and that if any contract to deliver the goods were made, it was with the I. C. Railroad and not the appellee and that they are not liable.

We submit that such a condition is in the face of the facts in the record untenable and that the records show conclusively and is undenied that the goods were received by the appellee and delivered at Sumrall immediately in a broken and damaged condition, and they cannot justify on such an unwarranted contention under the decision of any court on the broadest construction that can be given them compatible with justice common sense and reason, and we submit that, under the facts in the record, the burden of proof was on the appellee to show that the damage did not occur on its line through its fault, and invite the court's attention to the case of Railroad Co. v. Tupelo Furniture Co., 67 Miss. 35, 7 So. 279; also Fayson v. R. R. Co., 69 Miss. 569, 13 So. 37. If the appellee's contention was that this was a case of connecting carriers they would still be liable as the last carrier under the rulings of the court in above-cited cases. There can be no question about the appellee having received this shipment of goods and there can be no question about the appellee's agent having undertaken to issue a bill of lading, and if he issued a bill of lading on one of the blank forms of the I. C. Railroad, or had issued no bill of lading at all, it would make no difference when it was shown that the appellee received the goods for shipment to be delivered at destination, and if there should have been any controversy about this it would have been a case of fact for the jury to have passed upon and would have been error for the court to have given the appellee a peremptory instruction. We submit that this principle is set at rest in the opinion of the court in the case of Tishomingo Saving Institution v. Johnson, Nesbit & Co., 40 So. 503.

The delivery of this shipment in question and the acceptance by the appellee's agent at the Union Freight Office of the appellee and the I. C. Railroad at Brookhaven, is prima facie evidence of itself and was sufficient without any bill of lading, that the appellees accepted the goods in question and placed upon them the burden of showing that the goods were not lost nor destroyed on their line of railroad (see Alabama Midling Ry. v. Darby, 24 So. 713). Where the evidence authorizes the finding that certain goods were delivered to the agent of a railroad company who received them and was made acquainted with their destination, a contract of carriage may be implied, although no bill of lading or receipt was issued for the goods. See Southern Ry v. Johnson, 58 So. 333.

Where it has been shown that property was delivered to a common carrier or its duly authorized agents and has not been delivered to the consignee or delivered in a damaged condition, the burden is on them to show that they were not guilty of negligence and liable. See Whitesides v. Russell, 8 Watts & S. 44; Van Winkle v. South Carolina Ry. Co., 38 Ga. P. 32; Davidson v. Graham, 2 Ohio St. 141. In the opinion of the court in the case of Railroad Co. v. Tupelo Furniture Co., 67 Miss. 35, the court said: "Where goods, shipped over connecting lines, are delivered to the consignee in a damaged condition and it is proven that they started on their journey in good condition, the carrier, thus delivering them to the consignee, will be liable for damages unless it shows that the injury did not occur through its fault." And the case at bar is a much stronger case and presents facts showing that no other railroad but the appellees herein handled the goods in controversy, and they now seek to evade the payment of this claim on the grounds that the plaintiff below did not show the appellee to be liable, when in the face of the decisions of all the courts, after it is shown that they came into possession of the goods, the burden was on them to show that it was no fault of theirs, and the objections and technicalities taken advantage of in the lower court is without a parallel, and is not justified by the decision of any appellate court.

It matters not whether a bill of lading was produced or not, or what was on the bill of lading if produced, provided that it was proven that the railroad company received the goods in good condition for transportation. In an action against a common carrier for the loss of goods, his receipt of the goods may be proved without producing a bill of lading or even accounting for the loss of a bill of lading. See L. N. Railroad Co. v. McGuire, 76 Ala. 295.

H. S. Buescher, for appellee.

Appellee here, defendant below, secured a peremptory instruction at the close of appellant's testimony, requiring the jury to find for the defendant. This is assigned as error by appellant, and he quotes in support of his contention, a great deal of law, which is all good, although some of it is obsolete, but which is not in any sense applicable to the facts of this case. This is a suit based on a breach of written contract in which appellant contends that appellee received, in good condition at Brookhaven, Mississippi, and agreed to deliver to appellant at Sumrall, Mississippi, certain household goods specifically set out in said contract. The contract sued on in this case is a written one and is in the form of a bill of lading, and is in evidence. Appellant must stand or fall by its provisions. It speaks for itself. No evidence is competent to vary, change, alter, modify, add to or contradict any of its provisions.

It must stand on its own bottom. This contract shows on its face to have been made by the appellant with the Illinois Central Railroad Company, whose railroad connects with appellee's road at Brookhaven.

To this contract, appellee can, under no theory of law, be held to be a party. It could be held liable, if at all, as a connecting carrier only and the burden of proving that appellee had received the goods sued on in this case, in good condition at its connecting point with the Illinois Central was on appellant, unless he showed that he had invoked section 4853, chapter 139, of the Code of 1906. There is no evidence here that this chapter is relied upon and the burden of proof, therefore, remained with the appellant to show that the goods were received by the Mississippi Central Railroad Company in good condition at Brookhaven, Mississippi. Railway Company v. Tupelo Furniture Co., 67 Miss. 35, to the contrary, which decision was rendered prior to the enactment of the section referred to above, and is no longer applicable.

Even should the court hold that there is evidence showing delivery to ...