St. Louis, I. M. & S. Ry. Co. v. Murphy

• Decision Date: 16 March 1895
• Citation: 30 S.W. 419
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. MURPHY.
• Court: Arkansas Supreme Court

30 S.W. 419

ST. LOUIS, I. M. & S. RY. CO. v. MURPHY.

Supreme Court of Arkansas.

March 16, 1895.

Appeal from circuit court, Jefferson county; John M. Elliott, Judge.

Action by Mary K. Murphy, as executrix, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

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

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 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 Fairfield had been a regular station, with an agent located there, from 1884 to the close of 1887, when the agent was withdrawn, and since which time there had been no agent there.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 load the car, and notify the same agent that we had finished loading it, and then they would move the car. 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 car, and give us a receipt for it. He would check 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 car 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 25 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. 25th, 1891. Mr. Reinach, Agent Pine Bluff — Dear Sir: Have car 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, who immediately telegraphed the train master 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, so 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 them 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 carrier 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. Carr. §§ 82, 88, 89, 94; Ang. Carr. §§ 129, 131; 2 Ror. R. R. 1279; 2 Redf. R. R. 67 et seq.; Railway Co. v. Hunter, 42 Ark. 203; O'Neil v. Railroad Co., 60 N. Y. 138; Rogers v. Wheeler, 52 N. Y. 262; Story, Bailm. § 532; Wells v. Railroad Co., 6 Jones (N. C.) 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. Carr. § 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. Hutch. Carr. §§ 90, 93; 2 Ror. R. R. 1279; Chit. Carr. 27, note; Railroad Co. v. Kolb, 73 Ala. 396; Merriam v....