Hill Mfg. Co. v. New Orleans, M. & O. R. R.

1. Cashiers. Carriage of freight. Issuance of hill of lading. Pr$sv/iM>iion. The issuance of a bill of lading carries with it the presumption that the freight was delivered to the common carrier. 2. Carriers. Carriage of freight. Commencement of liability as common carrier. The test by which to determine whether or not freight was delivered to tbe carrier for shipment is whether there was anything to he done hy the shipper before the freight was to he shipped hy the carrier. 3. Same. If the shipper must perform some service or do some act necessary, precedent to shipment, it would not be a delivery to the railroad as a common carrier. But if the shipper was to perform no further act, or if there was no further act or thing to be done hy him, then it is a delivery to the railroad as a common carrier, although the railroad itself may have to have some act done or performed before the freight is actually ready for shipment. 4. Same. The liability of the railroad as a common carrier begins” when the shipper has done all that is required of him and paid the proper charges. 5. Carriers. Carriage of freight. Delivery to railroad as carrier. Where cotton was delivered by its owner to a railroad for shipment and the railroad collected the charges for compressing, and under its contract with the compress company,- the cotton was to be compressed and prepared in a certain way. In such case there was a delivery to the railroad in its capacity of a common carrier, though it elected not to ship the cotton at once, but permitted it to stand in the warehouse to await its own convenience in ■ shipping as it contracted to do in the bill of lading. 6. Carriers. Carriage of goods. Contracts against negligence. A common carrier cannot contract against liability for its own negligence, for .that would be against public policy. 7. Carriers. Carriage of goods. Limited liability. Federal statutes. The Carmack Amendment to the Hepburn Act of 1906 (Act June 29, 1906, chapter 3591, section 7, pars 11, 12, 30 Stat. 595, U. S. Comp. St. 1916, sections 8604A, 8604aa), amending the Interstate Commerce Act of Feb. 4, 1887 (24 Stat. 379, chapter 104), makes a common carrier liable for some value in case of a shipment under a limited liability contract, 8. Carriers. Carriage of goods. Limited liability. Alternative rate on file. The shipper has the right to have the carrier carry his goods on the common-law liability, and beforq -the carrier can exonerate itself from this liability it must have an alternative rate on file with the commission and at its station where the ' goods are tendered for shipment. 9. Cabriebs. Carriage of goods. Action. Liability as wafehouse-man. Under the facts in this cáse, which was an action against a railroad for the destruction by fire of cotton shipped, even had the railroad proved its liability was that of a warehouseman and not of- a common carrier, it could not have escaped liability on the ground - that no liability as a warehouseman was set forth -in the pleadings, ' since the suit was brought under the common-law liability in the declaration, and the railroad, under its notice under the general issue which constituted part of the pleadings, alleged that the cotton was destroyed by fire not caused by its negligence, and the plaintiff in reply insisted under the notice, that it was caused by the negligence 'of the railroad company, and the proof tended clearly to establish such negligence.

Appeal from the circuit court of Chickasaw county. ' PIoN. J. -L. Bates, Judge. Suit by the Hill Manufacturing Company against the New Orleans, Mobile & Chicago Eailroad Company. From a judgment for the defendant, plaintiff appeals. The Hill Manufacturing Company, a corporation under the laws of the state of- Maine, filed suit against the New Orleans, Mobile & Chicago Eailroad Company in the first district of Chickasaw county, Miss., alleging that on the 27th day of January, 1912, the Newburger Cotton Company, being the owner of fifty bales of cotton weighing twenty-six thousand nine hundred and six pounds, valued at ten and three-eighth cents per pound, bearing certain marks described in the declaration, was tendered to and accepted by the New Orleans, Mobile & Chicago Eailroad Company, and that said cotton was to be shipped from Houston, Miss., to Lewis-ton/Me., and that -the freight charges of two hundred twenty-six dollars and one cent were paid to the railroad company, and that the Hill Manufacturing Company, for a valuable consideration, became the bona-fide owner of the bill of lading. It was further alleged that the railroad company failed to deliver the said cotton with the exception of three hales, and that the forty-seven hales not delivered were of the value of two thousand six hundred twenty-seven dollars and fifty seven cents, and suit was brought for said amount, interest, and costs. A copy of the hill of lading was attached to the declaration, which will be referred to hereafter in the statement of facts. ' The defendant pleaded the general issue, and gave-notice under the general issue that it would offer evidence on the trial that the cotton was never delivered to the defendant as a. common carrier; that if it was so delivered to the railroad the hill of lading contained provisions: First, that no carrier or party in possession of the property described in said bill shall be liable for any loss thereof, or for damage thereto, by causes beyond its control, or by floods, delay, or quarantine, or for loss or damage on any article of property whatever, by fire or other casuality, in or at any cotton press or during transportation to or from press, or while in transit, or' while in depots, or places of reception, or in depots or places of transhipment, or at depots or at landings at point of delivery; and that the defendant would prove that the cotton was destroyed by fire while in and at a cotton compress, and that said cotton was destroyed by fire which was not caused by the negligence of the defendant nor of its employees or servants. To this notice under the general issue plaintiff replied with a counter notice that it would offer evidence in rebuttal of the above evidence if it became necessary in denial or avoidance: First. That the clause of the bill of lading for the shipment of cotton in question pleaded by the defendant as an exemption from liability by fire was not binding upon the plaintiff because it was not assented to by it or solemnly entered into by the shipper with knowledge and intent that it should be binding as a special contract, and that it is unreasonable and not supported by fair, valuable, adequate, or any consideration. Second. That the said dlause in the said bill of lading that the defendant shall not be liable for any loss thereof or damage thereto by causes beyond its control or by fire or other casualty while in transit, or while in depots or places of reception, or in depots or places of transshipment, is not binding on the plaintiff because the shipper did not enter into the same or assent thereto with knowledge or intent that it should be binding as a special contract and control the respective rights of the parties, and that it is unreasonable and not supported by fair, valuable, adequate, or any consideration. Third. That the bill of lading contains the statement that the rate paid Avas a reduced rate, made in consideration of special agreements therein set forth and applicable thereto, yet such was not true in fact; but the rate charged and paid was in fact the highest rate, that could be charged on the property which was authorized to be collected by the Interstate Commerce Commission; that there was on file no published tariff or rate with said commission permitting or providing or showing that a reduced or release rate could be charged by the defendant on this property, or for a higher rate than Avas charged in this instance, and that the limitations contained therein cannot protect defendant,' for the furthed reason that the rate paid was the only one offered the shipper by it, and the only rate defendant was authorized by law to make, and no option was given by defendant to plaintiff or the shipper of the pretended lower rate, nor one for a higher rate; and that defend- and was liable as at common law for loss or damage to the property. Fourth. That the compress at which this cotton was held by the defendant at the time it was destroyed by fire was being used by the defendant, as a storing and loading depot and platform at Houston, Miss., with the consent of the compress company. At the time of the fire in question said compress was the agent of the defendant for the purpose of receiving, receipting for, storing, and loading for the defendant cotton shipped and to be shipped from said point by special contract entered into between the defendant and the compress company on November 20, 1911, which agreement was in full force at the time the contract was made and at, the time the, fire occurred, and that the defendant was in control of the said compress and kept and provided at said shipping point no other platform, depot, storage or loading place for cotton than that of its agent, the compress company, and that the cotton was destroyed by fire while thus in the possession and control of-the defendant’s agent at Houston and thus held for shipment, and that the compress carried insurance on the said cotton for the protection of the defendant and the compress company from loss or damage hv fire. Fifth. That the loss of the cotton by fire in the hands of the defendant and its agent, the compress, was the result of improper and negligent construction by the defendant of chimneys in its section houses maintained on its right of way and occupied by its servants at or near the immediate vicinity of the compress where the cotton was kept and stored by the compress and the defendant, and in riegligently failing to provide, until after the said fire, suitable and proper protectors and spark arresters on the chimneys of said section houses in which the fire was kept and maintained by the defendant and its agents, and that the firt. was caused by sparks from said chimney so negligently constructed and used by defendant. The plaintiff and defendant entered into an agreement which appears of record by which it is agreed that the ‘legal title to the hill of lading covering the cotton referred to in the declaration was, at the time of the fire and at the time of the suit, vested in plaintiff. The weight and price of the cotton was also agreed upon, and it was further agreed that the original bill of lading-covering the said cotton was issued and signed by the agent of the defendant duly authorized to issue bills of lading. It was further agreed that the agreement between the railroad and the compress was in force both at the time of the issuance of the bill of lading and at the time of the fire. This agreement between the compress and the railroad company is made an exhibit to the agreement of counsel, and among other things contains the following stipulations: “ (4) The'railroad company may issue bills of lading for cotton upon the basis of loading certificates issued and furnished to it by the compress, such cotton being hereinafter styled ‘loaded cotton.’ “ (5) The railroad company may issue bills of lading for cotton in the possession of the compress on the basis of certificates issued by the compress and before the receipt of the cotton by the railroad company, such cotton being hereinafter styled ‘billed cotton.’ Billed cotton is only to be handled in exceptional cases, and not at all unless the railroad company desires to do so.” In consideration of the covenant contained in this agreement, the compress company agreed on its part: To receive, receipt for, unload, shelter, compress, and load on cars cotton in transit; to receive, receipt for, unload, and shelter consigned cotton and warehouse cotton; to shelter, compress, and load on cars cotton to be covered by loading certificates and known as “loaded cotton;” and to shelter, compress, and load on cars “billed cotton,” and not to deliver “warehouse cotton” without the written consent of the railroad company. Second. To properly handle, store, and protect cotton in transit, and billed cotton, until the railroad company shall furnish cars to'hold it, and to properly handle, store, and protect loaded cotton until actually delivered to the railroad company. Third. To compress all cotton from whomsoever received, intended for shipment on the railroad of the railroad company, to the indensity of twenty-two and one-half pounds per cubic foot, and to load not less than the number of hales of compressed cotton in box cars of given dimensions set out in the agreement. .Fourth. To .place on all such cotton for domestic shipment at least six bands, and'all such cotton for foreign shipment, at least eight bands, and to thg all cotton. Fifth. To issue and furnish to."the railroad company loading certificates correctly setting forth the date called for in a form set out in the stipulation, and to cover with such certificates shown in said form not more than one mark or lot of one mark of cotton, and to issue no duplicates of such certificates without the consent in writing of the railroad company; to issue to all shippers delivering to the compress company cotton intended to be shipped on the line of the railroad company certificates correctly showing the condition of the cotton when received, and each covering one mark or lot of one mark and issue no duplicates of such certificates without the consent of the railroad company. Sixth. To compress, load, and unload, and reload all cotton in the order of its receipt, and to avoid the breaking, of lots. Seventh. To pay the railroad company' all freight and car services, and other. charges within two days after the delivery of cotton to the compress; also to as-sunje and to pay to the railroad company the amount of all expenses incurred in putting in order any cotton compressed by the compress, and shipped on the railroad of the railroad company that may be rejected by vessels as not being in proper shipping condition under the commercial rules and regulations of the port of shipment. Ninth. To pay to the railroad company the premiums, .and any other expenses attending same, within ten days after the account is rendered by the railroad company, on fire insurance policies covering all warehouse cotton, cotton in transit, loaded cotton, and billed cotton, contained in the warehouse, on the platforms or grounds, or under the sheds of the compress, or in cars while on side tracks used for the compress, to said insurance companies as it may select, and for such amounts as the railroad company deems advisable to fully protect it against any and all loss; and all such policies of insurance shall be made payable to the railroad company and retained in its possession. Tenth. To protect, defend, and hold the railroad company harmless from any liability, damages, losses, or claims that may arise from the loss or injury or delay of cotton in transit, warehoused cotton, loaded cotton, or billed cotton, or any part thereof, from the time of delivery to the compress until the redelivery to the railroad company of cotton in transit and warehouse cotton, and from the time of the issue of the bills of lading by the railroad company until the delivery to the railroad company of loaded and billed cotton; and to pay all-costs, lawyer’s fees, and expenses that the railroad company may become liable for or suffer in any suit or proceeding to recover on account of such loss or injury or delay. Sixteenth. To furnish to the railroad company and keep the railroad company at all times fully informed as to the name or the names of the agents or servants of the compress authorized to sign certificates, receipts-loading tickets, or similar documents issued by it, together with the correct signatures of such agents or servants, and to inform the railroad company promptly when any such agent or servant shall cease to have authority to sign such documents, receipts, loading tickets, or similar documents. Seventeenth. That all certificates, receipts, loading tickets, or similar documents issued by the compress, or by any one in its employ authorized to issue the same for cotton actually delivered to the compress, shall be genuine, and represent cotton actually delivered and in tlie possession of tlie compress, and that each and every bale specified in such certificate, receipt, loading ticket, or similar document shall he a merchantable bale so far as weight is concerned, except as noted hereon; also to save harmless the railroad company from all liability, loss, damage, or expense which the railroad company may incur or be put to from or on account of the nondelivery to the compress, or by the compress to the railroad company, of the cotton, or any part thereof, covered by such certificates, receipts, loading tickets, or similar documents. Eighteenth. To permit the railroad company at any and all times, by its officers and agents, to inspect the premises, records, books, and papers of the compress to the extent necessary to enable the railroad companies to verify properly certificates, receipts, loading tickets, and similar documents purporting to be issued by or on behalf of the compress, and to the extent necessary , to enable the railroad company to inform itself properly as to whether the compress has fully complied with the provisions- of their contract. There are numerous other stipulations in the contract •between the railroad company and the compress regulating the dealings between them. The railroad company on its part bound itself to the compress company, first, to pay ten cents per hundred pounds to the compress for compressing cotton for account of the railroád company except in cases unnecessary to mention in this statement of facts; second, to furnsh within reasonable time cars necessary for the shipment of cotton in transit and billed cotton, and, if such cars are not furnished within forty-eight hours after receipt of written notice from the compress that the cotton is compressed and ready for loading on cars, to pay to the compress the •portion of the premium estimated prorata of the insur-. anee paid on all cotton thereby delayed, hut only for the time of such.-delay; provided tlie compress furnished the railroad company, by the tenth of each month, an itemized statement; third, to make settlement with the compress at the end of each week for all cotton compressed for and delivered to the railroad company under the agreement. The agreement was to remain in force until the 31st day of August, .1912, following the period during which the cotton was destroyed. At the head of the bill of lading, under heading “Note,” is contained the following provision: . “The rate named herein is a reduced rate, given in consideration of the shipper entering into the contract set out below. If the shipper prefers that the shipment shall be transported at the carrier’s risk, limited only as provided by common law and the laws of the United States and of the several states in so far as they apply, he can accomplish that result by notifying the carrier’s.agent, and shipping at a rate twenty per cent, higher than the rate indicated here with a minimum increase of one percent, per hundred pounds.” In the bill of lading, preceding item No. 1, is the following stipulation: “In consideration of all of which and especially of said reduced rate, the shipper agrees that every service to be performed by the company hereunder shall be subject to all the conditions herein, all of which the shipper accepts-and agrees are just and reasonable; and further agrees that, unless the other carriers to which said property may, be delivered in the course of transportation to destination make different contract or contracts, the transportation over said connecting carrier’s lines shall be upon the- terms and conditions herein. But neither said company nor any other carrier carrying hereunder, as hereby provided, shall be liable for any loss or damage not occurring on its own line, nor after said property is ready-for delivery to consignee.” Then follows item No. 1, containing the following .stipulation: “No carrier or party in possession of all or any of the property herein described shall he liable for any loss thereof, or for damage thereto, by causes beyond its control, or by floods, ... by fire or other casualty, in or at any cotton press or during transportation to or from press, or whilé in transit, or while in depots or places of reception, or in depots or places of transshipment, or at depots or at landings at point of delivery. ’ ’ The carrier had hut one rate at its Houston office for shipment of cotton from Houston, Miss., to Lewiston, 'Me., and the tariffs introduced in evidence show that no ' tariff was on file in the officé of the Interstate Commerce 'Commission as to cotton from Houston, Miss., to Lewis--ton, Me., other than the bill of lading above referred to. The carrier collected the compress charges from the shipper at the time of the issuing of the. bill of lading. 'The cotton was destroyed by fire while in the compress at Houston, Miss., after the issuance of the bill of lading and before it was actually compressed, with the exception of three bales, which, after the fire, were loaded on cars and shipped to Lewiston, Me. The plaintiff offered proof to the effect that the fire which burned the cotton in the. warehouse was caused by sparks coming from 'the chimney of one of the houses belonging to the defendant upon its right of way near the compress, and that the sparks were seen to fall upon the cotton and the cotton to become ignited, from which fire the compress and cotton were destroyed. The court below granted a peremptory instruction for the defendant, and judgment final was entered, from which the plaintiff appeals here.