Yazoo & M.V.R.R. Co. v. Nichols & Co.

• Decision Date: 27 October 1919
• Docket Number: 207795
• Citation: 83 So. 5,120 Miss. 690
• Parties: YAZOO & M. V. R. R. CO. v. NICHOLS & CO
• Court: Mississippi Supreme Court

83 So. 5

120 Miss. 690

YAZOO & M. V. R. R. CO. v. NICHOLS & CO

No. 207795

Supreme Court of Mississippi

October 27, 1919

1 CARRIERS. Construction of bill of lading against carrier.

If there is a reasonable doubt as to the true interpretation to be given a bill of lading the courts are justified in construing the contract more strongly against the carrier.

2 EVIDENCE. Judicial notice that consignees do not know of arrival of freight.

The court will take judicial notice of the fact that consignees do not and cannot know the exact time of the arrival of freight, consigned to a particular station or siding, and frequently have to be notified by a local agent of the arrival and placing of cars.

3 CARRIERS. Acceptances of freight evidenced by bill of lading.

Prima-facie the issuance of a bill of lading by a carrier is an acceptance of the freight.

4 CARRIER. Liability for loss of shipment as affected by uniform bill of lading.

Under the facts in this case as set out in its opinion the court held that a shipper of a carload of cotton, who delivered to the railroad in a car placed on a side track at a point where the road maintained a regular freight agent was entitled to recover for the loss of the cotton by fire, notwithstanding a provision of the bill of lading that property destined to or delivered from a station where there was no regular agent, when received from or delivered on private or other sidings, should be at the owner's risk until the cars were attached to, and after they were detached from, trains.

HON. W. A. ALCORN, JR., Judge.

APPEAL from the circuit court of Coahoma county, HON. W. A. ALCORN, JR., Judge.

Suit by Nichols & Company against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Clinton H. McKay, for appellant.

(1) As to interstate shipments, a common carrier may limit its common-law liability by reasonable stipulation, except as to loss or damage due to its own negligence or that of its servants, and its power to do so is not abridged by the Carmack Amentment, as amended. York Mfg. Co. v. Illinois Central R. Co., 3 Wall. 107, 18 L.Ed. 170; Adams Express Co. v. Croninger, 226 U.S. 491, 51 L.Ed. 321; Kansas City S. R. Co. v. Carl, 227 U.S. 639, 57 L.Ed. 683; Boston & M. R. Co. v. Hooker, 223 U.S. 97, 58 L.Ed. 868; Southern Ry. Co. v. Prescott, 240 U.S. 632, 60 L.Ed. 836; C. N. O. & T. P. Ry. Co. v. Rankin, 241 U.S. 319, 60 L.Ed. 1022; Erie R. Co. v. Stone, 244 U.S. 332, 61 L.Ed. 1173; So. P. Co. v. Stewart, Adv. Sheets, U. S. S.Ct. Feb. 15, 1919, page 176.

(2) The shipment being interstate, the rights and liabilities of the parties "depend upon Acts of Congress, the bill of lading, and the common-law rules as accepted and applied in Federal tribunals." C. N. O. & T. P. Ry. Co. v. Rankin, 241 U.S. 319, 60 L.Ed. 1022; Erie R. Co. v. Stone, 244 U.S. 332, 61 L.Ed. 1173.

(3) A shipper and carrier may lawfully contract so as to postpone the time when the liability of the carrier as an insurer shall attach, and in such case, for loss occurring after the bill of lading is issued, but before the time fixed for the liability as insurer to begin, the carrier will not be responsible, unless such loss is due to its negligence. Washburn-Crosby Co. v. Johnson Co., 125 F. 273; Brainbridge Groc. Co. v. A. C. L. R. R. Co., 8 Ga., App. 677, 70 S.E. 174; Siebert v. Erie R. Co., 163 N.Y.S. 111; Bers v. Erie R. Co., 163 N.Y.S. 144 S. C., 122 N.E. 456; Standard Combed Thread Co. v. Pennsylvania R. Co., 95 A. (N. J.) 1002, L. R. A. 1916C, 606.

(4) The phrase 2 "Private or other sidings" in section 5 of the bill of lading contemplates and includes a side-trask of the kind involved in the case at bar Brainbridge Grovery Co. v. A. C. L. R. Co., 8 Ga.App. 677, 70 S.E. 174; Siebert v. Erie R. Co., 163 N.Y.S. 111; Bers v. Erie R. Co., 163 N.Y. Supp, 144; S. C. 122 N.E. 456; Standard Combined Thread Co. v. Pennsylvania R. Co., 95 A. (N. J.) 1002, L. R. A. 1916-C 606.

(5) At common law, as interpreted and applied in federal tribunals, a carrier may lawfully contract for exemption from liability, except as against negligence. Mfg. Co. v. Illinois C. R. Co., 3 Wall. 107, 18 L.Ed. 170; Cau v. Railroad Co., 194 U.S. 432, 48 L.Ed. 1057.

(6) A stipulation in a bill of lading exempting the carrier from liability for loss or damage, will be limited by judicial construction to loss or damages not proximately due to its negligence. It is not necessary that the stipulation contain express words so limiting this application. Such words of limitation will be implied by the usual rules of judicial construction. Washburn-Crosby Co. v. Johnston Co., 125 F. 273; Bank v. Adams Express Co., 93 U.S. 174, 23 L.Ed. 872; Ins Co. v. Compress Co., 133 U.S. 387, 33 L.Ed. 730; Compania, etc. v. Breauer, 168 U.S. 104, 42 L.Ed. 398.

(7) The delay, if any in moving the car from the side track where loaded, even though resulting from defendant's negligence was not the proximate, but only a remote cause, of the loss by fire, and such delay does not render the carrier liable. Railroad Co. v. Reever, 10 Wall. 176, 19 L.Ed. 909; Cau v. Railroad Co., 104 U.S. 427, 48 L.Ed. 1053; Millsaps v. Railroad Co., 76 Miss. 855:

(8) Extracts from the tariffs and classifications of defendant made public records by the filling thereof with Interstate Commerce Commission under section 16 of the Act to regulate commerce as amended, when certified by the secretary, under the commissions seal, are receivable in evidence with like effect as the originals, to prove defendants, schedule of rates, and the rules and regulations applicable in connection therewith, and it was error to exclude the same when offered by defendant to show that it had established alternate rates, for the transportation in question, the lower of which applies only when the shipper accepted the terms and conditions of defendant's bill of lading.

Act to Regulate Commerce, as amended, Section 16; U. C. Comp. Stat., 1916. Vol. 8, section 8584, sub-sec. 12.

J. W. Cutrer for appellee.

The paragraph in the uniform bill of lading relied upon by appellant has application only to those stations at which there is no regularly appointed agent: Because this brief is largely taken up with a discussion of the paragraph above quoted from the uniform bill of lading and because it is well to keep in mind the exact provision of that paragraph, we insert again that paragraph here:

"Property destined to or taken from a station, wharf or landing at which there is no regularly appointed agent shall be entirely at risk of owner after unloaded from cars or vessels or until loaded into cars or vessels, and when received from or delivered on private or other sidings, wharves, or landings shall be at owner's risk until the cars are attached to and after they are detached from trains."

The proposition as set forth in the first point relied upon by the appellees in his brief has been expressly held by the California court in the case of Jolly v. Atcherson, Topeka & San Francisco Railroad Co., 131 P. 1057, 21 Cal.App. 368.

There the court, in discussing this same provision of the uniform bill of lading, and in a case where the carrier sought to escape liability upon practically the same plea which they are now urging upon this court, said: "A bill of lading providing that property destined to a station at which there is no regularly appointed agent shall be entirely at the risk of the owner when handled from cars or until loaded into cars, and when received from or delivered on private or other sidings shall be at the owner's risk until the cars are attached to and after they are detached from trains only applies to deliveries at stations where there are no regularly appointed agents."

This case commends itself to us because of its reasonableness and we earnestly submit that the California court's interpretation of the paragraph in question is correct.

The sidetrack upon which the car of cotton in question was loaded was not a "private siding" within the meaning of the provisions of the bill of lading. To state this proposition, and to refer most casually to the contract under the terms of which this tract was constructed is to prove it. Appellant urges that because this track was constructed upon property not owned by it, and because it was convenient for shippers to use, that it was a "private siding." It seems to us that it would be equally as reasonable to say that had appellant constructed its main line of tracks over property not owned by it and had these tracks been convenient to the public in general, then the Y. & M. V. Railroad Company would be a private railroad.

Referring, however, to the contract, it is expressly provided therein that: "It is understood and agreed that the party of the first part shall be the owner of, and have sole control of, the said spur or sidetrack, and all material used in its construction, and that the same shall remain personalty and shall not become a part of the realty, and that it shall have the right at any time in its discretion to abandon the use of the said track, and to take up and remove the said track notice shall be given to the party of the second part thirty days before the removal of the same shall be commenced."

How in the light of the foregoing paragraph of the contract, the contention of appellant that this is a private side track can be upheld we are unable to conceive. Appellant had quite the same control over this track that it did over its main line. It constructed it, repaired it, owned it and operated it. Where is there anything private about that? We submit that there are no grounds whatever for the contention of appel...