Tecumseh Mills v. L. & N. R. R.

Opinion' op the court by JUDGE GUPFY Affirming. Tbe appellant instituted this action in the Jefferson Circuit Court, law and equity division, against the defendant; seeking to recover judgment against it for $1,968.96 on account of its failure to deliver to plaintiff fifty bales of cotton shipped from Brownsville, Tenn., to Falls River, Mass., and there to deliver same to plaintiff. The petition reads as follows: ‘‘The plaintiff, Tecumseh Mills, says that it is a corporation created by and existing under the laws of the State of Massachusetts, with power to con [575] tract and be contracted with, and to sue and be sued, in its corporate name; that the defendant, Louisville & Nashville Railroad Company, is a corporation created by and existing under the laws of the State of Kentucky, with power to contract and be contracted with, and to sue and be sued. Plaintiff says that on the 10th day of April, 1894, at Brownsville, Tennessee, it bought fifty bales of cotton, weighing in the aggregate 25,406 pounds, at the price of seven and three-fourths cents per pound, amounting to the sum of $1,968.96. Plaintiff further says that on the said 10th day of April, 1894, the defendant Louisville & Nashville Railroad Company, was a common carrier having connection with other common carriers for the purpose of transporting goods, property, and freight under one contract, and for one certain, fixed rate, from one point to another. Plaintiff says that on the 10th day of April, 1894, at Brownsville, State of Tennessee, it contracted with said defendant, Louisville & Nashville Railroad Company, for the transportation-of said fifty bales of cotton from Brownsville, Tennessee, to Falls River, Massachu-' setts, for the guaranteed through rate of seventy-one cents per hundred pounds. Plaintiff says that in pursuance of said contract said fifty bales of cotton, marked ‘LADY,’ were on said 10th day of April, 1894, delivered to and received by said defendant for • transportation as aforesaid, and the said defendant at said time executed and delivered its bill of lading therefor to J. S. Phillips & Co., who were plaintiff’s agents, and authorized to ship said cotton for plaintiff. Plaintiff says that by said bill of lading, which is herewith filed as a part hereof, marked ‘NNQ,’ said defendant acknowledged the receipt of said cotton from said J. B. Phillips & Co., for the purpose of being transported and delivered to this plaintiff at Falls [576] River, Massachusetts. Plaintiff says that said defendant, by its said contract entered into as aforesaid, and for the consideration aforesaid, agreed and undertook with plain* tiff to transport said ñfty bales of cotton from Brownsville, Tennessee, to Falls River, Massachusetts, and there to deliver the same to this plaintiff. Plaintiff says that without fault on his part all of said cotton was destroyed by fire on April 13, 1894, while in the compress or warehouse of the Brownsville Compress & Storage Company, at Brownsville, Tennessee; said cotton having been placed there by said defendant after the delivery thereof to said defendant, and without the knowledge or consent of this plaintiff, after the delivery of said cotton to defendant as, hereinbefore stated. Plaintiff says that said cotton was not, nor was any part of said cotton, ever delivered to this plaintiff, or to any one for plaintiff. Plaintiff says that all of the fifty bales of cotton were consumed by said fire at the time aforesaid, and were a total loss. Plaintiff says that, by reason of defendant’s failure to deliver •said fifty bales of cotton to plaintiff as agreed and contracted for, it has been damaged in the sum of $1,968.96, with interest thereon a’t the rate of 6 per cent, per annum from April 13, 1894, until paid. Plaintiff says that it has demanded of said defendant, the payment of said sum, but said defendant has refused and still refuses to pay said sum or any part thereof, and the whole of said sum is due and unpaid, wherefore plaintiff prays judgment against said defendant for said sum of $1,968.96, with interest thereon from April 13, 1894, until paid, for its costs herein, and for all other proper relief.” It is provided in the contract or bill of lading, among other things, that the defendant should not be liable for damages or loss by fire. It is further provided that defendant should [577] have the privilege of compressing all shipments of cotton at its own expense. A demurrer was sustained to the petition, and, plaintiff failing to amend, the petition was dismissed, and from that judgment this appeal is prosecuted. The sole question presented for decision is whether or not the contract exempting defendant from liability for loss by Are is valid and sufficient to exempt it from any liability for the loss sustained by the plaintiff. It will be seen from the petition that the cotton was destroyed by Are while in the compress or warehouse of the Brownsville Compress & Storage Company, of Brownsville, Tenn.; the same having been placed there by defendant after the de. livery to it, and without the knowledge or consent of plaintiff. Appellant relies upon the provision of section 196 of the present Constitution, the latter part of which reads as follows: “No common carrier shall be permitted to contract for relief from its common law liability.” It is the contention of appellant that the defendant, being a corporation created by the authority of this State, has no power to make any contract anywhere in violation of the provision of the Constitution aforesaid-; hence the exemption from loss by Are, being a contract limiting its corn-law liability, must be held invalid, and appellant is therefore entitled to recover in this action. Appellant has cited the following authorities: Railroad Co. v. Miller, 132 U. S. 75, (10 Sup. C., 34), (33 L. Ed., 267); Bank v. Earle, 13 Pet., 587, (10 L. Ed., 274); Tipton Co. v. Rogers Locomotive & Machine, Works 103 U. S., 537, (26 L. Ed., 340); Cromie’s Heirs v. Society, 3 Bush, 365; Railway Co. v. Tabor, (Ky.), 32 S. W., 168; Brown v. Railroad Co., (Ky.), 38 S. W., 862; Lathrop v. Bank, 8 Dana, 114. After a [578] careful consideration of the authorities relied on, we fail to see that they sustain the contention of appellant. Numerous authorities are cited by appellee, which we deem it unnecessary to discuss. It will be seen from the petition that the cotton, the subject matter of the contract, was in the State of Tennessee. The contract was entered into in the same State, and the cotton was to be delivered in the State of Massachusetts. It does not appear that the cotton was expected to even pass through the State of Kentucky. It seems to be conceded that a carrier might, by contract, exempt itself, under the common law, in the States of Tennessee and Massachusetts, from responsibility for loss of goods caused by fire, not' the result of its own negligence. It is not claimed that the common law is not in force in the States of Tennessee and Massachusetts. It seems to us that, under the facts as they appear in this action, the provision of the Constitution aforesaid could in no wise affect or control the liability of defendant respecting the contract sued on. The other questions discussed in this case are not decided. All that we do decide is that, under the terms of this contract as shown by the petition and exhibit filed, plaintiff is not entitled to recover in this action. Judgment affirmed. .