Mobile & O. R. Co. v. Jensen

• Decision Date: 29 February 1932
• Docket Number: 29830
• Citation: 139 So. 840,162 Miss. 741
• Parties: MOBILE & O. R. CO. v. JENSEN
• Court: Mississippi Supreme Court

139 So. 840

162 Miss. 741

MOBILE & O. R. CO. v. JENSEN

No. 29830

Supreme Court of Mississippi

February 29, 1932

Division B

Suggestion Of Error Overruled April 11, 1932.

APPEAL from circuit court of Noxubee county HON. J. I. STURDIVANT Judge.

Action by N.C. Jensen against the Mobile & Ohio Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, and judgment rendered for defendant.

Reversed, and judgment here for appellant.

Carl Fox, of St. Louis, Mo., and W. G. Roberds, and Roberds & Malone, of West Point, for appellant.

The tariff provision has the force and effect of law and it cannot be added to, altered, amended or changed by an oral agreement. The contract between the shipper and carrier is not the bill of lading alone, but the bill of lading plus the schedules and tariffs filed as required by law.

Boston & M. R. R. Co. v. Hooker, 233 U.S. 97, 58 L.Ed. 868; Hurt v. Atlanta B. & A. Ry. Co., 84 So. 631; Siebert v. Erie R. R. Co., 163 N.Y.S. 111; Beers v. Erie R. R. Co., 163 N.Y.S. 114, affirmed 1919, 122 N.E. 456; Bryan v. Louisville & N. R. Co., 93 S.E. 750, L. R. A. 1918A, 938; City Nat'l Bank of El Paso v. El Paso & N.E. Ry. Co., 225 S.W. 391, 262 U.S. 695, 67 L.Ed. 1184; Atchinson, etc., R. Co. v. Robinson, 233 U.S. 173, 58 L.Ed. 901; Atchinson, etc., R. Co. v. Moore, 233 U.S. 182, 58 L.Ed. 901; So. Ry. Co. v. Prescott, 240 U.S. 632, 60 L.Ed. 836; G. F. & A. Ry. Co. v. Blish Milling Co., 241 U.S. 190, 60 L.Ed. 949; Davis v. Cornwell, 264 U.S. 560, 68 L.Ed. 848; Davis v. Henderson, 266 U.S. 92, 69 L.Ed. 182; Western Union Tel. Co. v. Preister, 276 U.S. 252, 72 L.Ed. 555; Am. Ry. Express Co. v. Daniels, 269 U.S. 40, 70 L.Ed. 154; Missouri Pacific R. R. Co. v. Prude, 265 U.S. 99, 68 L.Ed. 921; L. & N. R. R. Co. v. Chatters, 279 U.S. 320, 73 L.Ed. 711.

The oral agreement between agent of the appellant and appellee was not valid.

Panhandle S. F. Ry. Co. v. Bell, 189 S.W. 1097.

The shipper as well as the carrier is charged with notice of the provisions of the published tariffs, whether they have actual knowledge or not, and they are conclusive as to the rights of the parties in the absence of facts or circumstances showing an attempt at rebating or false billing.

Atchinson T. & S. F. R. Co. v. Robinson, 233 U.S. 173, 58 L.Ed. 901; Louisville & N. R. Co. v. Hobbs, 190 S.W. 461; Cook v. Northern Pac. Ry. Co., 203 P. 512; Hunter v. Am. Ry. Exp. Co., 4 S.W. 847.

Chas. Strong, of Macon, for appellee.

The tariff provision appellant attempted to introduce in this case, were not sufficiently proven to be admitted as evidence, and in that they fall short of law.

The common-law liability imposed on common carriers is applicable to interstate as well as to intrastate shipments. This liability is neither increased nor diminished by the Carmack Amendment.

10 C. J. 132; Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314, 44 L. R. A. (N. S.) 257; Lehigh Valley Railway Co. v. Allied Machinery Co. of America, 271 F. 900.

A claim that the mere fact that there was a contract obligation of any kind as to ventilation excuses the carrier from taking any other reasonable precautions as to ventilating the tomatoes although reasonable care required further steps to be taken is untenable. Under such a claim a carrier could indirectly contract to free himself from his own negligence.

New England Fruit & Produce Co. v. Hines, 97 Conn. 225, 116 A. 243.

That a common carrier cannot exempt himself from liability for his own negligence or that of his servants is elementary.

Adams v. Croninger, 226 U.S. 509, 57 L.Ed. 314.

The liability of a railroad company as a common carrier does not terminate until the freight has reached the point of destination in good order, notice of its arrival has been given to the consignee, and a reasonable time allowed for its removal. This is the law irrespective of any custom on the part of the railroad companies.

Y. & M. V. R. Co. v. Blum, 102 Miss. 303; Gulf & Chicago R. R. Co. v. Horton, 84 Miss. 490, 36 So. 449.

The carrier must show a full performance of duty with respect to what was shipped according to its nature, and when that showing is made and that the injury was from an excepted cause in the contract, liability cannot be fixed on the carrier except by proof of a want of due care and diligence which must depend on circumstances and the nature of the articles shipped.

Chicago, St. Louis & New Orleans R. Co. v. Abels, 60 Miss. 1017.

The carrier is relieved from liability if it shows that it has provided suitable means of transportation and exercised that degree of care which the nature of the property requires.

L. N. O. & T. R. Co. v. Bigger, 66 Miss. 319, 6 So. 234.

The billing by the railroad put the agents of the carrier upon notice that the car was loaded with perishable property and it was the duty of the carrier to use ordinary care to protect it from injury.

St. L. S.W. R. Co. v. Jackson, 118 S.W. 853, 55 Tex. Civ. App. 407.

Whenever the situation or condition of the goods from accident or from any cause becomes such as to require special care or attention the carrier must put himself in the place of the owner and do for them all that might reasonably be expected of a prudent and careful person and if necessary it would be his duty to incur any expense in their preservation which their value would justify and which their condition might make necessary. His contract and his obligation is not only to carry the goods, but to carry them safely; and when they become exposed to the danger of destruction from their own inherent infirmity or from any cause for which the carrier is not accountable, the law makes it his duty to employ at least a reasonable degree of skill and diligence to preserve them, and if he fail to do so it will be accounted negligence, and he will be liable for the loss though the actual proximate cause of it may be one for which but for his negligence he would be in nowise responsible.

Hutchinson on Carriers (3 Ed.), sec. 646; Beard v. I. C. R. R. Co., 79 Iowa 518, 44 N.W. 800, 7 L. R. A. 280, 18 A. S. R. 381; Colsch v. C. M. & St. P. R. Co., 117 N.W. 281; Winslow v. Chicago & Alton R. Co., 170 Mo.App. 617, 157 S.W. 96; Vernon v. American Railway Express Co., 222 S.W. 913.

Under its common-law duty a carrier is bound to use all reasonable effort to deliver all shipments received by it in a reasonable length of time under the circumstances proved, having due regard for the character of the shipment, the apparent necessity for its speedy delivery, if of a perishable nature, and all other facts in the case. This duty is in no way dependent upon an express contract and the carrier's liability is not affected by the fact that the bill of lading is silent on the subject.

Hardesty v. Am. Ry. Exp. Co., 119 A. 681.

OPINION

Anderson, J.

Appellee brought this action in the circuit court of Noxubee county against the appellant to recover damages to two hundred twenty-five colonies of bees shipped by appellee from Bogalusa, Louisiana, and consigned to himself at Macon, in this state, and delivered at their destination by appellant, which damages were alleged to have been caused by appellant in failing to notify appellee at once of the arrival of the bees at their destination according to a verbal agreement to that effect had between the parties. There was a trial resulting in a verdict and judgment in the sum of three hundred seventy-two dollars and five cents, from which judgment appellant prosecutes this appeal.

We have reached the conclusion that appellant was entitled to a directed verdict in its favor, which was requested and refused by the court, and therefore in stating the case we shall set out every material fact favorable to appellee which the evidence either establishes directly or by reasonable inference.

Appellee either had or was establishing an apiary in Noxubee county in this state. He had an apiary near Bogalusa, Louisiana. He desired to close his apiary at Bogalusa and move his bees to Macon. On the 19th of March, 1929, the appellee, under a uniform interstate bill of lading, shipped the bees by railroad freight from Bogalusa, Louisiana, by way of Meridian in this state, and from there over appellant's line of railroad to Macon, consigned to himself. The shipment consisted of two hundred twenty-five colonies of bees. Some days before the bees were shipped appellee saw appellant's agent at Macon and informed him of the intended shipment. The appellee impressed on the agent the necessity of the immediate unloading on the arrival of the bees. He explained to him that the bees while moving in transit would not suffer because the movement of the train would cause the air to sufficiently circulate among them to keep them alive, but that it would not do to permit them to stand in loaded cars for any considerable length of time for there would be a want of sufficient air circulating among them, which would result in their damage or destruction. In view of these facts appellee requested the appellant's agent at Macon to notify him at once on the arrival of the bees, which the agent agreed to do. The appellant's agent denied making any such agreement, but for the purposes of this decision appellee's testimony to that effect will be taken as true. Appellee lived about a mile from Crawford, a station on the appellant's line of railroad. Crawford is about twenty miles northwest of Macon. The bees arrived in Macon at five twenty-two on the morning of March 21, 1929. About eleven o'clock of the same morning the appellant's agent in Macon deposited in the mail at Macon a written notice of the arrival of the bees addressed to appellee, the consignee, at Macon, that being the address in the bill of...