Thompson v. Yazoo & Mississippi Valley R.

Reed, J., delivered the opinion of the court. This is a suit brought by Mrs. Thompson against the Yazoo & Mississippi Valley Railroad Company to recover the value of one box of pictures. It is claimed that the railroad company is liable because of its failure as the last carrier to furnish to the consignee, Mrs. Thompson, upon demand, true copies of all notations, exceptions, records, and memoranda entered on the books of each carrier handling the box of pictures, touching the receipt, transfer, and handling of the same, in accordance with the requirements of section 4853 of the Code of 1906. That section is as follows: “If a common carrier receive freight for further transportation and delivery within this state from another carrier, on any contract, express or implied, for continuous carriage, and it arrive at the place of delivery in a broken or damaged condition, or some parts thereof be lost or destroyed, it is the duty of the last carrier to obtain and furnish to the consignee or other person interested, on demand, true copies of all notations, exceptions, records, and memoranda entered on the books of each carrier touching the receipt, transfer, and handling of the freight while in transit; and if such last carrier shall not so furnish the same within thirty days after demand, it shall be presumed to have caused such damage, loss, or destruction; but in case of damage, loss, or destruction of perishable goods, by reason of their nature, and of damage not discoverable by outward inspection, proof thereof shall be admissible.” . The case was tried before the judge in the absence of a jury upon an agreed statement of facts. The box of pictures was shipped from Kenton, Tenn., to Hinchcliffe, Miss. It was carried by the Mobile & Ohio Railroad Company to Humboldt, Tenn., where it was transferred to the Louisville & Nashville Railroad Company. By that company it was carried to Memphis, Tenn., and should in due course have been delivered to the Yazoo [859] & Mississippi Yalley Railroad Company; bnt this was not done. Two boxes of pictures were shipped from Kenton, Tenn., and only one was delivered to the Yazoo ■& Mississippi Yalley Railroad Company in Memphis, and that box was transported and delivered to final destination with due promptness and care. Under the facts as presented in the record the statute •does not apply to this case. This statute was considered in the case of Threefoot Bros. v. Railroad Company, 89 Miss. 192, 43 South. 303, and it was therein held that it was highly penal; it should, therefore, be strictly construed. The statute is made applicable to a common •carrier receiving freight from another carrier for further transportation and delivery within the state. The undisputed facts in this case show that the Yazoo & Mississippi Yalley Railroad Company did not receive the box which was lost in transit at all. The application- of the statute is based upon the reception of the freight by the carrier. It certainly cannot apply where it is admitted that the carrier did not receive the lost freight. The present case is unlike that of Russell v. Railroad Company, 87 Miss. 806, 40 South. 1015. In that case the freight was received at Meridian, the point of destination, in a damaged condition. The decision in that case cannot affect the present case because of the difference in the facts. Where it is admitted in the record that the last carrier never received the property which is the subject of the suit, there can be no liability against such carrier, and therefore no presumption of such liability. Affirmed'.