Mussellam v. Cincinnati, N.O. & T.P. Ry. Co.
| Decision Date | 26 September 1907 |
| Citation | 126 Ky. 500,104 S.W. 337 |
| Parties | MUSSELLAM v. CINCINNATI, N. O. & T. P. RY. CO. ET AL. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Boyle County.
"To be officially reported."
Action by A. Salem Mussellam against the Cincinnati, New Orleans & Texas Pacific Railway Company and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded for new trial.
Robt. Harding, Emmett Puryear, and Greene & Van Winkle, for appellant.
Chas H. Rodes and John Galvin, for appellee Cincinnati, New Orleans & Texas Pacific Railway Company. Robert T Quisenberry, for appellee Southern Railway Company.
In December, 1904, A. Mussellam delivered to the Southern Railway Company at Knoxville, Tenn., some boxes of oriental goods, to be shipped to himself at Danville, Ky. The railway company gave him a bill of lading for seven boxes, weighing 1,065 pounds. When the goods were delivered to him at Danville, there were only six boxes. The weight of these six boxes is not shown. The goods were carried by the Southern Railway from Knoxville to Harriman, and then delivered to the Cincinnati, New Orleans & Texas Pacific Railway, which took them to Lexington, and from Lexington they were shipped back to Danville. They did not reach Danville until January 10th. He brought this suit against both railways to recover for the loss of the seventh box, the contents of which he valued at something over $1,800. The defense to the action was in effect that only six boxes were in fact delivered at Knoxville to the Southern Railway. On the first trial of the case, the jury found for him, fixing the damages at $900. The court granted a new trial. On the second trial, the court gave a peremptory instruction to the jury on all the evidence to find for the Cincinnati, New Orleans & Texas Pacific Railway Company, and, the case being submitted as to the Southern Railway Company, the jury returned a verdict in its favor. Judgment was entered on the verdict, and the plaintiff appeals.
Mussellam, for a week before the shipping of the goods, had been selling at auction at Knoxville goods which he had brought there from St. Louis. The proof for the defendant showed that he did not have at Knoxville the goods which he charged were in the box that was lost. It also showed that these goods could not have been put into such a box; that, after the auction was over, what goods he had left unsold were packed into seven boxes, which were hauled by the transfer wagon to the station. The driver of the wagon said that, when he reached the station, only six boxes were taken out of the wagon; Mussellam telling him that he would take the other box with his trunk as baggage. The agent who checked the boxes said there were only six, weighing 1,065 pounds; that he placed them in a Lexington car and sealed the car with the Knoxville seal. The agent at Lexington testified that, when the car reached him, the seal was unbroken; that he opened the car, and there were only six boxes in it, which he then had placed in the freight depot, and afterward reshipped to Danville. On the other hand, Mussellam testified that this box was not opened at Knoxville, that it was delivered with the other six to the railway company, and that it contained the articles sued for, which the Knoxville witnesses knew nothing about. He not only received a bill of lading at Knoxville for seven boxes, but the waybill which went with the car called for seven boxes. The Cincinnati, New Orleans & Texas Pacific Railway receipted to the Southern Railway for seven boxes, and sent a similar waybill to Danville. The agent at Danville receipted for the freight on seven boxes, weighing 1,065 pounds, "one box missing."
1. The rule is settled that a receipt is not conclusive between the parties, but is only prima facie evidence of what was received. The receipt given by the railway companies for the freight specifying that there were seven boxes created a presumption that they received in fact seven boxes, and the burden of proof is on them to show that only six boxes were in fact received. They may show what was received, but unless they show to the contrary, the plaintiff is entitled to recover upon his receipt. The instructions which the court gave the jury do not conform to this rule. The court under our practice should not tell the jury that the burden of proof is upon one of the parties, or that the presumption of law is against him; but the instructions should be so framed as to indicate the burden of proof without especially referring to it. Under the instructions of the court, the jury were directed to find for the plaintiff if they believed from the evidence that he had delivered the box to the Southern Railway. This placed the burden of proof on him of showing that he had delivered the box, while the receipt made out a prima facie case for him. The court should have instructed the jury that they should find for the plaintiff against the Southern Railway Company, unless they believed from the evidence that the plaintiff had not delivered the box to it; and that they should find for him against the Cincinnati, New Orleans & Texas Pacific Railway Company, unless they believed from the evidence that the Southern Railway Company had not delivered the box to the Cincinnati, New Orleans...
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