W. H. & C. B. Hodges v. Louisiana Ry. & Nav. Co

• Decision Date: 21 May 1934
• Docket Number: 30182
• Parties: W. H. & C. B. HODGES v. LOUISIANA RY. & NAV. CO
• Court: Louisiana Supreme Court

156 So. 26

180 La. 3

W. H. & C. B. HODGES v. LOUISIANA RY. & NAV. CO

No. 30182

Supreme Court of Louisiana

May 21, 1934

Rehearing Denied July 2, 1934

Appeal from First Judicial District Court, Parish of Caddo; Robert Roberts, Judge.

Suit by W. H. & C. B. Hodges, a commercial partnership composed of William H. Hodges and another, against the Louisiana Railway & Navigation Company. From a judgment in favor of the plaintiff, the defendant appealed.

Affirmed.

Wise Randolph, Rendall & Freyer, of Shreveport, for appellant.

Blanchard Goldstein, Walker & O'Quin, of Shreveport, for appellee.

OPINION

LAND, Justice.

Plaintiff firm is a commercial partnership domiciled and doing business at Elm Grove, Bossier parish, and is composed of William H. Hodges and Campbell B. Hodges.

Plaintiff has brought the present suit to recover the value of seventy-two bales of cotton weighing 35,910 pounds, worth 18.7 cents per pound, destroyed by a fire in the freight cars of defendant carrier on August 18, 1927, at Elm Grove, La., less 7,240 pounds, worth 9 cents per pound, salvaged from the fire.

Sixteen bales of the seventy-two loaded in the cars belonged to J. L. Hodges, and fifty-six bales belonged to plaintiff firm, W. H. & C. B. Hodges.

The claim of J. L. Hodges was transferred to W. H. & C. B. Hodges, and the petition by consent amended by stipulation to include the claim of J. L. Hodges with that of W. H. & C. B. Hodges.

There was judgment in the court below for plaintiff in the sum of $ 6,126.41, with legal interest from judicial demand, and from the judgment above mentioned defendant has appealed.

The defense is that the cotton was never in the custody of defendant as a common carrier and that its liability as such never attached, and, that if the cotton had been received by defendant for transportation, it would have been received and transported under the provisions of the uniform bill of lading prescribed or indorsed by the Louisiana Public Service Commission, which contains the following clause: "Property destined to or taken from a station * * * at which there is no regularly appointed freight agent shall be entirely at the risk of the owner after unloaded from cars * * * or until loaded into cars * * *, and, except in case of carriers' negligence when received or delivered to such stations * * *, shall be at the owner's risk until the cars are attached to, and after they are detached from the locomotive or train. * * *"

In August, 1927, defendant company was operating a local freight train from Shreveport to Campti, La., the latter place being a point beyond Elm Grove. This train left Shreveport on Mondays, Wednesdays, and Fridays of each week, going south to Elm Grove and Campti, and returning north to Shreveport from Campti via Elm Grove on Tuesdays, Thursdays, and Saturdays.

We approve the following statement of facts made by the trial judge:

"The proof shows that in the year, 1908, due to a disastrous flood in the Spring of that year, plaintiff firm entered into an agreement with the defendant by the terms of which the agency station at Elm Grove was suspended, with the understanding that plaintiff firm would itself discharge the duties of station agent. Under this arrangement and agreement the method of handling cotton shipments from Elm Grove to Shreveport was to have cars required set out by the crew of the freight train going south one day, which after being loaded and sealed by plaintiff firm, would be picked up by the northbound freight on the next day.

"Bills of lading for such shipments would be made out by the plaintiff firm and handed to the conductor of the train picking up the shipment, or in the Winter time and during rush seasons when the trains were running behind schedule, arriving at Elm Grove at uncertain times of day or night, the bills of lading would be placed in a lock box attached to the station for the purpose, from which the conductor upon his arrival would take them, leaving in the box a copy for the shipper.

"This arrangement and custom was followed and carried out with satisfaction to both plaintiff and defendant from the year, 1908, up to August 18, 1927.

"Pursuant to this agreement and custom, plaintiff on August 16th or 17th requested two cars for the shipment of the cotton in question to Shreveport. The cars required were duly set out at Elm Grove, loaded with seventy-two bales of cotton and bills of lading covering the shipment were made out by the plaintiff.

"About four o'clock A. M. of August 18th, the cotton was destroyed by fire, with the exception of the 7,240 pounds which was salvaged. The fire occurred before the arrival of the northbound freight train which would have carried it to Shreveport."

The conductor of the local freight train of defendant company has been in the service of that company for seventeen years. When asked to explain to the court the practice in regard to picking up cotton at Elm Grove for shipment to Shreveport, he replied: "Well, the custom has been ever since I was running there, if we place cars going South we would naturally suppose that the car was ready as we came North." Tr., p. 64.

"Q. You expected to pick up these two by the next Northbound train, on your next trip North? A. Expected to, yes." Tr., pp. 65, 66.

This witness at first stated that he was not told that the cars would be loaded and ready to pick up, when the cars were requested; but, on further examination, he would not swear positively that he was not told, but said that he did not think that he was. Tr., p. 65.

Glover, the gin foreman of plaintiff firm, made a request of the conductor of the freight train to furnish these cars. One of the cars was spotted by the conductor on August 16th, and the other on the morning of August 17th, and the next freight train returning north to Shreveport arrived at Elm Grove in the afternoon of August 18th about 3 or 4 o'clock.

Glover states positively that he told the conductor of the freight train of defendant company to spot him two cars to be loaded with cotton, and to be picked up by the first freight coming back. Tr., p. 37.

Under this state of facts, we hold that defendant company was notified that the cars would be loaded and ready for shipment on the north-bound freight train that arrived from Campti on the afternoon of August 18th.

Besides, the conductor of the freight train knew from the custom in handling cotton shipments from Elm Grove to Shreveport that these cars would be loaded and ready for shipment at that time.

Under the...