Yazoo & Mississippi Valley Railroad Co. v. Bent

• Decision Date: 24 December 1908
• Docket Number: 13,213
• Citation: 47 So. 805,94 Miss. 681
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. GEORGE W. BENT ET AL
• Court: Mississippi Supreme Court

47 So. 805

94 Miss. 681

YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. GEORGE W. BENT ET AL

No. 13,213

Supreme Court of Mississippi

December 24, 1908

FROM the circuit court of, first district, Hinds county, HON WILEY H. POTTER, Judge.

Bent and others, appellees, composing a copartnership doing business under the firm name, "Bent & Company," were plaintiffs in the court below; the railroad company appellant, was defendant there. From a judgment in plaintiffs' favor defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Affirmed.

Mayes &amp Longstreet, for appellant.

Watkins & Watkins, for appellees.

[The reporter has been unable to find the briefs of counsel in this case, and for that reason no synopsis of them is given.]

MAYES, J. WHITFIELD, C. J., concurs.

OPINION

MAYES, J.

The controversy in this case arises under Code 1892, § 4299, Code 1906, § 4851. That section is as follows:

"Every bill of lading or other instrument in the nature or stead thereof acknowledging the receipt of property for transportation, shall be conclusive evidence in the hands of a bona fide holder for value, whether by assignment, pledge, or otherwise, as against the person or corporation issuing the same, that the property had been so received."

The substantial facts of the case, as agreed upon in the record, are as follows:

On the 10th day of June, 1905, the railroad company issued to the Buckeye Cotton Oil Company, at Greenwood, Miss., ten bills of lading, covering two hundred and fifty bales of cotton linters, delivered to the railroad company for shipment to Bent & Co., at Boston, Mass., on the order of Hood & Co., of Jackson, Miss., the cotton to be delivered to Bent & Co., Boston, on presentation of the bill of lading. The railroad company duly issued its bills of lading for the cotton and it is agreed that the bills of lading stated on their face that the aggregate was one hundred eighteen thousand, four hundred twenty-five pounds. These bills of lading have, above the column where the weights are to be inserted, the following: "Weights subject to correction." The oil company attached the bills of lading to a sight draft on Hood & Co., of Jackson, Miss., predicating the amount drawn for of the value per pound of the cotton linters as shown by the weights in the face of the bill of lading issued by the railroad company. Hood & Co., received the bills of lading and paid the drafts attached thereto, and forwarded same to Bent & Co., of Boston, Mass., attaching the bill of lading to drafts on Bent & Co., adopting as the basis of the drafts the weights stated in the bills of lading issued by the railroad company. The cotton linters was transported by the Yazoo & Mississippi Valley Railroad Company and connecting carriers, in unbroken packages, from Greenwood, Miss., to Boston, Mass., and delivered to Bent & Co. The same two hundred and fifty bales of cotton linters received by the defendant company at Greenwood were delivered to Bent & Co., in Boston.

The bills of lading, with the drafts attached, drawn by Hood & Co. on Bent & Co., of Boston, were forwarded and paid by Bent & Co., and after payment of same and reweighing the cotton it was ascertained by Bent & Co., the weights were twenty thousand, nine hundred and eighty-four pounds short, aggregating in value $ 786.90, which amount of shortage was paid in full by Bent & Co. to Hood & Co.; that is to say, Bent & Co. paid for the quantity of cotton linters which the bills of lading showed had been shipped to them, and without notice of the fact that there was any shortage until after payment, unless the statement in the bill of lading, "weights subject to correction" was notice. It is further agreed that Bent & Co. relied on the weights stated in the bills of lading and that Hood & Co., who shipped the cotton linters to Bent & Co. had no notice or knowledge of any discrepancy in the weight, other than the statement in the bills of lading, that the weights were subject to correction." It is also agreed that, in paying the freight on the shipment, the freight was paid according to the weight stated in the bill of lading and accepted by the defendant on that basis. The agreement further shows that the cotton linters were not weighed by the railroad company, but that it was customary to permit the oil company to do its own weighing, and in this instance this was done, and the weights were written into the bills of lading by the oil company, and not by the carrier; but the bills of lading were issued and adopted by the carrier as its bills of lading, and nothing in the bills of lading indicated that they were prepared by any party other than the railroad company.

On these agreed facts a judgment was rendered by the trial court in favor of the plaintiff for the sum of $ 893.37, being principal and interest on the alleged value of the shortage, and from this judgment the defendant appeals.

While the facts show that the oil company placed the weights in the bills of lading for the railroad company, there is no issue of fraud made by the pleadings or the proof; nor is there any contention that the nature of the goods in this case is such that a loss in weight is natural, either from the operation of the elements on the character of goods, or as a natural result of being housed up for a period of time; nor is there any error apparent on the face of the bill of lading of any kind. We merely state these things to show what the real facts of this case are. The facts of this case bring it literally within the rule declared in the case of Loyd v. Railroad Company, 88 Miss. 422, 40 So. 1005, unless this case is to be reversed on the contentions of counsel for appellants on questions raised in this case for the first time, and not decided in the case supra.

It is first contended in this case that Code 1906, § 4851, has no application, for the reason that the bills of lading here provide that the weights are "subject to correction." Counsel for appellant therefore contend that, since the court has held in the case of Hazard v. Illinois, etc., R. Co., 67 Miss. 32, 7 So. 280, that the statute in question is not a mere rule of evidence, but designed to change the character and legal effect of the contract evidenced by the bill of lading, therefore, say counsel for appellant, the party who takes under the bill of lading must take in accordance with the whole contract as formed by the statute and the bill of lading, and, since the bill of lading provides that the weights are subject to correction, this provision cannot be repudiated by a party claiming to be a bona fide holder of the bill of lading, since by its very terms the bill of lading puts the party on notice of its right to correct discrepancies in weights. If this contention be sound, the statute in question would be of little use, since, by stamping on the face of every bill of lading that the weights were subject to correction, it would have the effect of writing out of the law this statute. These bills of lading cannot be considered as contracts in the ordinary sense in which the word "contract" is used. A common carrier owes a duty to the public not imposed upon an individual. Such contracts are subject to regulation under the law, and when a lawful regulation has been imposed it is not within the power of the carrier to destroy the regulation by any printed form of contract required to be signed by shippers. As was said in the case of Lasky v. Southern Express Company, 92 Miss. 268, 45 So. 869: "Stipulations in shipping contacts of the character under discussion are made entirely for the benefit of the carrier, and will receive strict construction, to the end that through it just claims of shippers may not be defeated by dilatory methods in handling the claim. These stipulations are made on the back of contracts of shipment, and are rarely read by the shipper, and the one ground upon which they can be upheld is that they are reasonable regulations--not contracts in the true sense." In the case of Railroad Co. v. Insurance Co., 79 Miss. 114, 30 So. 43, the court said: "The common carrier must at all times be ready and willing to contract with the shipper on the terms and conditions imposed by law. If the carrier desire to limit its common-law liability, it can only do so by special contract with the particular shipper, freely and fairly entered into, and upon sufficient consideration." When the rule laid down in these two cases is applied, it is seen that this court has repudiated the idea that these printed stipulations may be given the force of a contract, fully, freely, fairly, and voluntarily entered into by private parties, but regards such stipulations more as regulations made by the carrier for its own benefit, the validity of which must depend on reasonableness and consistency with the general law.

The next contention of counsel for appellant is that the statute itself is void, because it violates section 14 of the Constitution of the state, and the fourteenth amendment to the Constitution of the United States, in that it undertakes to prescribe a conclusive rule of evidence, thereby taking away from the courts their constitutional powers to investigate and pass upon facts, resulting in a deprivation of property without due process of law. In support of this contention one case is cited. That case is Missouri etc., Ry. Co. v. Simonson, 64 Kan. 802, 68 P. 653, 57 L. R. A. 765, 91 Am. St. Rep. 248, decided by the Kansas supreme court on a statute not identical with, but similar to, the statute under discussion. We shall notice this decision later. Suffice it to say here that this decision was rendered by a court consisting of seven judges, three of whom dissented, and this case...