Jordan v. Mississippi Cent. R. R.

Smith, C. J., delivered the opinion of the court. This is a suit instituted in the court below by appellant to recover from appellee damages for the breaking of certain household furniture and other articles shipped by plaintiff to himself from Brookhaven to Sumrall. At the close of the evidence a peremptory instruction was granted for appellee, and there was a verdict and judgment accordingly. Brookhaven is the intersection of the roads of appellee and of the Illinois Central- Railroad Company, which companies maintain a joint freight depot in charge of a joint agent. The furniture and other household articles in question were delivered by appellant at Brookhaven to this joint agent of the two roads for shipment to Sumrall, a station on appellee’s road, and were afterwards delivered by appellee to him in a damaged condition. • The bill of lading issued to appellant by this joint agent when the articles were delivered to him for shipment does not appear in this record. When it was first offered in evidence, it was excluded on the ground that it was signed by this agent as agent of the Illinois Central Railroad Company, and not as agent of appellee; but afterwards it was admitted, and the case tried on the theory that appellee had received the goods from a con-, necting carrier. [330] ¥e will assume, without deciding, that appellee’s liability is simply that of a connecting carrier, for two reasons : First, because the bill of lading introduced in evidence has not been copied into this record; and, second, on the evidence introduced and sought to be introduced in the court below it is immaterial whether ap-pellee received the goods itself in the first instance, or from a connecting carrier, the rule being: “Where goods shipped over connecting lines are delivered to the consignee in a damaged condition, and it, is proven that they started on their journey in good condition, the carrier thus delivering them to the consignee-will be liable for the damage, unless it shows that the-injury did not occur through its fault.” M. & O. R. R. Co. v. Tupelo Furniture Mfg. Co., 67 Miss. 35, 7 So. 279, 19 Am. St. Rep. 262. According to the evidence the goods were delivered to the consignee in bad condition and appellant offered,, but was not permitted, to prove that they were delivered to the initial carrier in good condition. This evidence-seems to have been excluded on the theory that delivery to the carrier was thereby assumed, “without proof having been made. ’ ’ Proof of delivery to the carrier, however, had already been made by the bill of lading offered in evidence, and the evidence excluded was competent for the purpose of showing the condition the goods were in when delivered, and should therefore have been admitted. There is no merit in appellee’s contention that the rule-announced in the case of Mobile & Ohio R. R. Co. v. Tupelo Furniture Manufacturing Co., supra, has been abrogated by section 4853 of the Code of 1906, which section, according to the brief of counsel for appellee, was enacted after that case was decided. This section of the-Code provides that upon the occurrence of certain things therein set forth, the loss or damage shall be conclusively presumed to have occurred where the goods were in the331 hands of the last carrier, while the rule announced in the Tupelo Furniture Company Case is simply a prima facie one, which results solely by reason of the delivery of the goods to the initial carrier in good condition, followed by delivery to the consignee by the last carrier in bad condition. There is no conflict between the two rules, and one has no bearing on the other. The motion to exclude appellee’s evidence, made at the conclusion of the introduction thereof by counsel for appellee, and which was sustained by the court, was as follows: “Now comes the defendant and moves the court to exclude all the evidence offered on behalf of the plaintiff, and instruct the jury to find for the defendant, for the reason that there is no evidence here to show that the Mississippi Central Railroad Company was ever in possession of the goods claimed to have been damaged, and, there being no evidence to show that the Mississippi Central Railroad Company ever received the goods, they, of course, could not be held liable for any damages. Second, it has not been shown that, if the Mississippi Central Railroad Company did receive the goods, they were received in good condition; the burden of proof being on the plaintiff to show that they were in good condition.” The evidence that appellee had “received the goods” and had been in possession thereof was the fact that they were transported to Sumrall over its line and by it delivered to appellant. No evidence was introduced showing that the goods were received by the initial carrier in good condition; but, as hereinbefore stated, it was offered by appellant, and excluded. Appellant sought to recover, in addition to his actual damages, the penalty provided by chapter 196 of the Laws of 1908, because of appellee’s failure to settle his claim within sixty days after it had received written notice of his demand therefor. Evidence was introduced [332] that such notice had been given to appellee’s claim agent; but it was excluded, on the ground that the writing itself was the best evidence. This ruling was correct. Appellant should have given appellee notice to produce the writing, and, if produced, it constituted the best evidence of its contents; but, if appellee had declined to produce it after receiving a notice so to do, the evidence of its contents sought to be introduced by appellant would then have been competent. Counsel for appellant testified that he had notified appellee’s claim agent in writing of appellant’s demand, and had received from this claim agent a letter acknowledging recepit thereof: After proving the loss of the letter, he sought to establish its contents by parol; but, on objection, the court excluded the- evidence, and erred in so doing. The clerk below failed to incorporate the- bill of lading introduced in evidence in the court below in this record, and gives no excuse for his failure so to do; consequently, under rule No. 1 (59 So. vii), his fees for making up the transcript will be disallowed. Reversed and remanded.