Loyd v. Kansas City, Memphis & Birmingham Railroad Company

• Decision Date: 28 May 1906
• Citation: 88 Miss. 422,40 So. 1005
• Parties: THOMAS F. LOYD v. KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD COMPANY
• Court: Mississippi Supreme Court

40 So. 1005

88 Miss. 422

THOMAS F. LOYD v. KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD COMPANY

Supreme Court of Mississippi

May 28, 1906

April 1906

FROM the circuit court of Lee county, HON. EUGENE O. SYKES, Judge.

Loyd the appellant, was plaintiff in the court below; the railroad company, the appellee, was defendant there. From a judgment in defendant's favor the plaintiff appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed.

Webb &amp Amason, and Brame & Brame, for appellant.

The appellant was a bona fide purchaser for value of the bill of lading for the cotton that was shipped from Nettleton Mississippi, which was indorsed in blank by Smith and Coughlan, who were the shippers of said cotton. The bill of lading is within the provisions of Code 1892, § 4299, making bills of lading issued by common carriers negotiable, or subject to the law merchant, in regard to the shipment, delivery, etc., of goods and merchandise over the lines of common carriers in Mississippi regardless of whether the point of destination of the goods and merchandise is in the state of Mississippi or without the state.

The appellee is estopped under and by virtue of the said statute from denying in this action that it received the amount of cotton from the shippers at Nettleton, Mississippi, which the bill of lading specified and which was negotiated to the appellant, and paid for by him with a valuable consideration.

It was evidently the intention of the legislature in enacting the above mentioned section, or statute, to cut off all defense against a bill of lading issued by a common carrier in Mississippi for goods and merchandise, when the bill of lading was in the hands or possession lawfully--that is, negotiated in the usual course of business--of a bona fide holder of same for value, except fraud or forgery, and perhaps the other recognized exceptions to the liability of a common carrier for non-delivery of the goods and merchandise at the place of destination of same, such as the acts of God, and of a public enemy.

The appellee in this cause is, and was, a common carrier at the time when the bill of lading upon which this cause is founded was issued by it. This being true, under the rules of the common law which obtained in Mississippi except in so far as the same have been modified, or abrogated, by lawful authority, the appellee, when it received the said cotton for which the bill of lading was issued, as above mentioned, became an insurer of the safe delivery of it to the consignee or the holder of the said bill of lading, at the place of destination named in the bill of lading. The said rule of the common law is laid down in the following language in 5 Am. & Eng. Ency. Law (2d ed.), 233, sub-title VIII, "Liability for Loss or Damage:" "A carrier of goods is liable as a common carrier, and therefore as an insurer, for the safe transportation and delivery of goods entrusted to it for carriage. This rule of liability is unquestioned, and the only practical questions arising in this connection are as to the exceptions to the rule."

The authorities hold that a common carrier can avoid liability for the damage, or loss, of goods and merchandise received by it for transportation to a place of destination off of its own line, or lines, and where the same must be carried by a connecting carrier in order to reach, or arrive, at the place of destination of the goods and merchandise so shipped, by limiting its liability for the carriage of same to its own line, or lines, by entering into a special agreement, or contract--that is, an express agreement, or contract, with the shipper of the goods or merchandise to that effect. In this cause, the appellee attempts in its statement of the facts on which it relies for its defense to aver, and set up, a special contract, as above mentioned, that was printed, either upon the face, or back, of the said bill of lading that was issued for the said cotton at Nettleton, Mississippi, and in connection therewith, states "that the appellee delivered, to the connecting line, the Southern Railway Company, at Birmingham, Alabama, fifty bales of cotton, the identical cotton mentioned in the bill of lading shipped from Nettleton, Mississippi, under bill of lading dated February 9, 1903, with the marks included in said bill of lading, said cotton to be compressed at railroad compress, Birmingham, Alabama," and "that this same cotton at the time of delivery to the Southern Railway Company was in good condition, and was promptly delivered in pursuance of its agreement to its connecting carrier with the seal from shipping point unopened in the car containing the cotton," and "that the cotton was compressed at the compress company mentioned in the bill of lading and afterwards carried over the Southern Railway to its destination according to its contract." The above quoted facts are wholly immaterial and irrelevant, in this cause for that the special contract, or agreement, that was printed, or stamped, on the said bill of lading that was issued for the said cotton at Nettleton, Mississippi, and upon which the appellee relies, is entirely void, and of no force and effect, as a defense limiting its liability for loss or damage, of the cotton to its own line, or lines, of railroad. 63 Am. St. Rep., 219; 78 Ala. 597; 43 L. R. A., 140; 7 L. R. A., 162; 30 So. 43.

J. W. Buchanan, for appellee.

A statement of the case under the pleadings and agreed statement of facts upon which this case was tried, is an answer to both of the assignments of error of appellant. The bill of lading attached to the agreed statement of facts, shows that the weight of the cotton was subject to correction and that the appellee was not to be liable for any damage or loss to the cotton beyond its control; and that the bill of lading further contained the words, "Contents and the condition of the contents of the package unknown."

The identical cotton received, with the marks and brands describing the same was placed in cars properly sealed and was delivered to the connecting line in good condition. This ended the liability of appellee. It is contended on the part of appellant that appellee's...