Railway Company v. Murphy

• Decision Date: 16 March 1895
• Citation: 30 S.W. 419,60 Ark. 333
• Parties: RAILWAY COMPANY v. MURPHY
• Court: Arkansas Supreme Court

30 S.W. 419

60 Ark. 333

RAILWAY COMPANY v. MURPHY

Supreme Court of Arkansas

March 16, 1895

APPEAL from Jefferson Circuit Court, JOHN M. ELLIOTT, Judge.

Action by Mary K. Murphy, as executrix, against the St. Louis, Iron Mountain & Southern Railway Co. The facts are stated in the opinion.

Judgment affirmed.

Dodge & Johnson for appellant.

1. Before a common carrier's liability to a shipper, as such, begins, the goods shipped must have been first delivered to the carrier, and received into its actual care and custody, free from all control of the shipper, and not until then can a common carrier be held liable for the same under its duties as such. And should a carrier receive goods from a shipper with no information or directions as to whom to transport and deliver the same, a common carrier's liability as such would not attach or commence until the shipping order was complete, by the giving of the name of the consignee and the place of destination; and until such directions were given and received by the carrier, its liability would be that only of a warehouseman, provided it had taken the goods into its exclusive custody and control. Hutch. on Car., secs. 82-94; 56 Ark. 271; 42 id. 203; 22 S.W 195; 53 F. 137; Ib. 939: 35 A. & E. R. Cas. 379; 40 id. 25; Hutch. Car., secs. 82-99; 16 A. & E. R. Cas. 99; Schouler Bailments, 363; 26 S.W. 313; 38 Ill. 354; 87 Am. Dec. 303. No shipping orders having been given, leaving something yet to be done by the shipper before the goods could be transported, the defendant's liability, if any, was that of a warehouseman only, and it was only responsible for loss caused by negligence. 100 Mass. 455; 39 Ill. 335; 7 Mich. 515; 106 Mass. 467; 8 So. 687; 42 Ark. 203. To have issued a receipt for the cotton before actual delivery would have been a violation of Acts 1887, p. 84, sec. 1.

2. The proximate cause of the loss was the act of the tramp, while the car was unfastened, unguarded and unprotected. The delay was not the cause of the burning, but the act of the tramp made possible by the neglect of plaintiff. 56 Ark. 288; 55 Ark. 521; 23 S.W. 1100; 139 U.S. 237.

3. The court erred in admitting the testimony of McNally as to the entries in Murphy's cotton book. (1) Because incompetent, Const. Ark., sec. 2, schedule, p. 132; 48 Ark. 133. (2) The written statement was hearsay. (3) Better evidence was obtainable, and no foundation was laid. 57 Ark. 415; 151 U.S. 155-6.

4. The witness McNally was asked a leading question. Mansf. Dig., sec. 2900.

H. King White, W. T. Woolridge and Dan W. Jones & McCain for appellee.

1. This case is easily distinguishable from that where a manufacturer has a spur track run out to his factory and upon his own premises. In such case the car passes beyond the control of the railroad. In this case the car is in the possession and under the control of the company, and a loading in the company's car placed there for that purpose is a delivery to the carrier. 73 Ala. 396; Hutch. on Car., sec. 90. A local custom amounts to an implied agreement, Ib. All the cases cited by appellant were cases where the goods had not been loaded in the carrier's vehicle.

2. The name of the consignee is not a prerequisite to delivery. When the shipper is ready for the goods to move, and indicates this to the carrier, the common law liability of the carrier attaches. 31 Conn. 281; 20 Conn. 354; 87 Am. Dec. 303; 31 N.E. 853; 35 id. 296; 23 N.Y. 231; 68 Hun, 598; 43 Ind. 370; 20 S.W. 846; 71 Wis. 372.

3. The books of the intestate were properly admitted as evidence as to the weight of the cotton. 1 Gr. Ev., secs. 117, 119 and notes.

4. The so-called leading question asked McNally was a mere recapitulation, which is allowable, 1 Gr. Ev., sec. 434. But the answer was immaterial and harmless.

OPINION

WOOD, J.

This suit was to recover of appellant company for loss of cotton which, it is alleged in the complaint, had been delivered to appellant as a common carrier for immediate transportation. The answer of appellant denies that the cotton was delivered to or received by it, or that it agreed to transport the same. There was a verdict and a judgment for $ 1,016.15.

The proof, so far as it may be necessary to state it in order to present the rulings of the lower court and of this court, is substantially as follows: John P. Murphy, plaintiff, lived and did business as a merchant and planter at Fairfield on appellant's railway. Fairfield had been a regular station, with an agent located there, from 1884 to the close of 1887, when the agent was withdrawn, and since which time there had been no agent there. It was a post-office, and passenger trains stopped there regularly. Freight trains stopped occasionally, whenever freight was to be delivered to the company for shipment, or when freight was to be received. The freight trains were stopped by flagging them down. Even when there was a regular agent at Fairfield, freight trains did not stop unless they were flagged or had freight to unload. The company had its switch and platform on its own premises for the purpose of receiving and shipping freight. Freight shipped there had to be prepaid. For years John P. Murphy had been shipping cotton from Fairfield. The witness, in answer to the question, "What was the custom of the defendant company in the acceptance of freight for transportation?" said: "When we had cotton to ship, we notified the company's agent at Noble Lake or Pine Bluff, and they would lay off a car at the switch. We would lead the car, and notify the same agent that we had finished loading it, and then they would move the ear. The conductor would come along, and give us a receipt for the cotton, and we would carry the receipt to the agent at Pine Bluff, and he would give us a bill of lading." The witness further stated: "The conductor would take the ear, and give us a receipt for it. He would cheek the cotton before he gave a receipt. They had a blank form which I would fill out, and the conductor would sign. I had such a receipt filled out from Tuesday, when the ear was loaded, up to the time it was burned." In the present instance the car was ordered when the cotton was ready for shipment. The conductor laid it off at the switch on Saturday. It was loaded with the twenty-five bales of cotton by John P. Murphy on the Monday following, and on Tuesday the following letter was sent to the agent at Pine Bluff:

"FAIRFIELD, Nov. 25, 1891.

Mr. Reinach, Agent, Pine Bluff.

Dear Sir:--Have ear loaded with cotton on switch here for New Orleans. Please have moved as soon as possible.

Yours truly,

"JOHN P. MURPHY, per C. MCN."

This letter was received by the agent at Pine Bluff on the morning of the day after it was written, and he immediately telegraphed the trainmaster at Little Rock that the car was ready to be moved. A book was identified as the cotton book kept by John P. Murphy, the entries in his handwriting showing the weights, marks of the cotton, names of consignor and consignee and date of shipment, and the witness testified his belief as to its correctness. The book was admitted in evidence over the objection of the defendant. The cotton was set fire to and destroyed by a tramp on the night of the 27th of November, 1891.

The dominant question in the case, as presented by the pleadings, the proof, and the instructions, is, was there a delivery?

When the shipper surrenders the entire custody of his goods to the carrier for immediate transportation, and the carrier so accepts them, eo instanti the liability of the common carrier commences. When this occurs, the delivery is complete, and it matters not how long, or for what cause, the carrier may delay putting the goods in transitu; if a loss is sustained, not occasioned by the act of God or the public enemy, the carrier is responsible. But, on the contrary, as there is no divided duty of safe keeping, and no apportionment, in the event of a loss, between the owner and the carrier, the surrender of control over the goods by the shipper must be such as to give the carrier the unqualified right to put at once in itinere, and the carrier must have received them for that purpose. So that, when goods are delivered to the carrier that are not yet ready for shipment, awaiting further orders from the owner, or the happening of some contingency or compliance with some condition before they are ready to be moved, the liability of the cartier in the meanwhile can be no greater than that of an ordinary depositary or bailee. These general principles are recognized by all the authorities. Hutch. on Car., secs. 82, 88, 89, 94; Angell on Car., secs. 129-131; 2 Rorer on Railroads, 1279; 2 Redfield on Railways, 67, et seq.; L. R. & F. S. Railway v. Hunter, 42 Ark. 200; O'Neill v. N. Y. Cent., etc., R. Co., 60 N.Y. 138; Rogers v. Wheeler, 52 N.Y. 262; Story on Bailments, sec. 532; Wells v. Railroad Co., 51 N.C. 47, 6 Jones Law 47.

But the statement of the law is much easier than its application to the facts of each particular case. As Mr. Hutchinson says "It frequently becomes a question of the greatest importance and of great nicety to determine at what instant of time the delivery becomes complete." Hutch. on Car., see. 94. The true legal test of the common carrier's liability, then, is a complete delivery. The time, place and manner of such delivery, to make it complete, may depend upon the conventional arrangement between the parties. But, in the absence of any express stipulation, the carrier may as effectually bind himself by a uniform and usual course of business sufficiently long continued to have become an established usage. Hutchinson on Car., secs. 90, 93; 2 Rorer on Railroads, 1279; Chitty on Car. 27, note; Montgomery, etc., Ry. Co. v. Kolb, 73 Ala. 396; Merriam...