Southern Railroad Co. v. Elder

• Decision Date: 13 January 1919
• Docket Number: 20436
• Citation: 118 Miss. 856,80 So. 333
• Court: Mississippi Supreme Court
• Parties: SOUTHERN RAILROAD COMPANY v. ELDER

80 So. 333

118 Miss. 856

SOUTHERN RAILROAD COMPANY v. ELDER

No. 20436

Supreme Court of Mississippi

January 13, 1919

Division A

APPEAL from the circuit court of Tishomingo county, HON. CLAUDE CLAYTON, Judge.

Suit by W. C. Elder against the Southern Railway Co. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Reversed and remanded.

Bennett & Clark and Earl King, for appellant.

Cunningham & Cunningham, for appellee.

OPINION

HOLDEN, J.

The appellee, W. C. Elder, sued and obtained judgment for nine hundred dollars, against the Southern Railway Company for the conversion of a car of cattle, which he claimed to have loaded and delivered to the appellant railway company at Huntsville, Ala. The appellant railway company denied having received the car of cattle and disputed the claim with an abundance of evidence at the trial. The claim of the appellee depended entirely upon his own testimony, which the jury believed in preference to the great preponderance of evidence offered by the appellant railway company. After a most careful consideration of the testimony introduced by the appellee and appellant, it is our opinion that the verdict of the jury was clearly contrary to the overwhelming weight of the testimony in the case and seems manifestly wrong.

It appears from the testimony of the plaintiff that he was a cattle buyer in Huntsville, Ala., operating in the name of some other person; he claims to have loaded the cattle in a car and turned them over to some person who was acting as agent of the railway company at Huntsville; he did not identify the person whom he claimed was acting as the agent and received the car of cattle, but said that this same man had accepted cattle for shipment from him before that time for the railway company. He testified that when the car was loaded he gave some directions to appellant's supposed agent with reference to the shipment, but he did not ask for or receive a bill of lading for the car. He says that he had a short time in which to catch another train which prevented him from calling for the bill of lading. It appears nearly conclusively, however, that no such train was to leave Huntsville at the time the appellee claimed he was trying to catch it. Appellee filed several declarations and amended declarations in the case, in some of which he alleged that he instructed the agent that his cattle were to be shipped to one firm in St. Louis, and in another amended declaration alleges that he instructed that the cattle be shipped to a different firm, and he finally testified that he instructed that they be shipped to still a different firm in East St Louis. These glaring contradictions are apparent in this case. Appellee received no bill of lading, gave no notice as to the conditions of the contract to govern the shipping with reference to value, route, food and water, etc. He made no inquiry of the appellant railway company concerning his cattle until after two or three weeks had passed. It also appears that he made no inquiry with reference to his alleged car of cattle in St. Louis for nearly two months after the shipment, although he had gone to St. Louis in the meantime on other business.

It was shown by credible and undisputed testimony that the appellee had thirty-five head of cattle in a pasture near Huntsville and that on the date of the shipment claimed by him he had sold this thirty-five head of cattle to a Mr. Coil and received a check for four hundred and ninety-five dollars in payment for them, and this check was introduced in evidence. Appellee, Elder, testified that all his cattle were in this...