Thomas v. Lancaster Mills, of Clinton, Mass.

• Decision Date: 06 January 1896
• Docket Number: 214.
• Citation: 71 F. 481
• Parties: THOMAS et al. v. LANCASTER MILLS, OF CLINTON, MASS.
• Court: U.S. Court of Appeals — Seventh Circuit

71 F. 481

THOMAS et al. v. LANCASTER MILLS, OF CLINTON, MASS.

No. 214.

United States Court of Appeals, Seventh Circuit.

January 6, 1896

The Cairo Division of the Wabash, St. Louis & Pacific Railway extending from Cairo, Ill., to Tilton, Ill. (hereinafter termed the railway company), was from and after the 22d day of April, 1885, operated by the appellants as receivers, under appointment by the circuit court of the United States for the Southern district of Illinois, in a suit brought in that court for the foreclosure of a mortgage upon that division of the railroad. In the course of such operation the receivers employed an agent at Memphis, Tenn., to secure shipments of property for transportation over the line of railway in question. Such agent had authority to employ steamboat and barge lines to transport cotton from Memphis and other points on the Mississippi river to Cairo, under bills of lading issued by him as such agent, contracting for transportation from the point of shipment to the final destination at the mills or factories in the East. He also had authority to contract for the shipment of cotton from Memphis to its final destination at the East by all-rail transportation. In November and in the early days of December, 1886, the corporation, Lancaster Mills, purchased, through William Bowles & Sons, of Memphis Tenn., one thousand bales of cotton, which were delivered to the agent of the receivers for shipment to Clinton, Mass and for which the agent gave through bills of lading to William Bowles & Sons. The several bills of lading were of like tenor and effect, and acknowledged the receipt in apparent good order of the bales of cotton referred to, marked 'L.T. 1/300/B/c. To order. Clinton, Mass. Notify Lancaster Mills. River to Cairo. From Memphis to Clinton, Mass. Cotton. Per 100 pounds, 58c. ' The bill of lading recites that the packages are to be transported by the railway company in question, and forwarding lines with which it connects, until the said goods and merchandise shall have reached the point named in the contract, upon certain terms and conditions stated. The only condition necessary to be noticed here is that the railway company and forwarding lines shall not be liable for 'loss or damage to any article or property whatever by fire or other casualty while in transit, or while in depots or other places of transshipment, or at depots or landings at points of delivery, nor for loss or damage by fire, collision, or the dangers of navigation, while on the seas, rivers, lakes, or canals. ' Seven hundred bales of the cotton mentioned were loaded at Memphis under shipping instructions given by the agent of the railway upon Barge 49 between December 2d and December 9th, and constituted part of 2,072 bales of cotton, the cargo of the barge. The bill of lading issued by the owners of the barge affirmed that they were shipped by the agent of the railway company, to be delivered without delay (the dangers of navigation, fire, explosion, and collision excepted), at the port of Cairo, Ill., to the railway company or assigns. This barge was in all respects a carrier of the first class, well manned and carefully constructed to guard against fire, as were also the steamboat and the other barges, which proceeded together. The steamboat R. S. Hayes, with five barges in tow, including Barge 49, arrived at the port of Cairo at midnight, between the 10th and 11th days of December, occupying in transit the usual time of about 48 hours, and tied up, with the barges in tow, at the public levee at the foot of Tenth street. The usual place for the receipt of cotton by the railway company was at North Cairo, a mile and a half up the Ohio river from the city of Cairo. There was dispute whether the Hayes tied up at Cairo and did not proceed to North Cairo on account of ice in the river, or because of orders of the railway company. The steamer, with her barges, remained at Cairo until the 28th day of December, when the steamer caught fire, which was communicated to Barge 49, and the cargo of cotton destroyed. There was also dispute whether this delay of 17 days was caused by the refusal of the railway company to take the cotton, owing to the congestion of cotton freight at that time, or because of ice in the river. There was also evidence proving that certain sums of money were paid by the agent of the railway company at Memphis to the shippers, and it was in dispute whether such payments were as rebate in freight rates, or for assumption of the marine risk upon the cotton between Memphis and Cairo. The Lancaster Mills had insured this cotton between Memphis and Cairo. The Lancaster Mills had insured this cotton with the Insurance Company of North America. On June 2, 1887, the Lancaster Mills filed in the court below its intervening petition, in its own behalf, and for its own use and benefit, seeking to recover the amount of the loss. In May, 1892, after payment to it by the insurance company of the amount of the loss, it filed its amended intervening petition, for the use of the insurance company, in which it is alleged as ground for recovery 'that the loss of the cotton by said fire was the result of carelessness and negligence and delay of said receivers of said Cairo, Vincennes, and Chicago lines, while the said cotton was in their possession in course of transportation, in pursuance of the contract of transportation aforesaid. ' The answer alleged, with other defenses not necessary to be stated, that the destruction of the cotton was without negligence or carelessness upon the part of the receivers; that it was not then in the custody or under the control of the receivers, but was in the custody and under the control of the Mississippi Valley Transportation Company, the owner of the steamboat and barges, and was in transit by said company's line, and claimed exemption under the conditions in the bill of lading referred to. On the 1st day of November, 1894, the court below decreed in favor of the petitioners that the receivers of the railway company pay to the Insurance Company of North America the sum of $47,468.30, the value of the cotton destroyed; from which decree this appeal is taken.

John M. Butler, for appellants.

John F. Lewis, for appellee.

Before WOODS and JENKINS, Circuit Judges, and BAKER, District Judge.

JENKINS Circuit Judge, after stating the facts, .

We do not find it needful to determine the disputed question of fact whether the sums paid to the shippers by the agent of the railway company were in rebate of freight, or in consideration of the assumption by the shippers of the marine risk between Memphis and Cairo, nor to say whether the receipts given by the shippers upon such payments were altered after delivery, or were procured by fraudulent means since our judgment must proceed upon other facts which are undisputed, or abundantly established by the evidence. Nor do we need to consider the interesting question discussed at the bar, whether, under the act of March 27, 1874 (Rev. St. Ill. 1881, c. 27, Sec. 1), that 'whenever any property is received by a common carrier to be transported from one place to another within or without this state, it shall not be lawful for such carrier to limit his common law liability safely to deliver such property at the place to which the same is to be transported, by any stipulation or limitation expressed in the receipt given for such property,' it was competent for the railway company by contract to relieve itself of its common-law liability. It was urged that this statutory provision is to be read into the charter of the company, and is the law of its existence, that its charter is the same abroad as at home, and that this company carried...