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

Ethridge, J., delivered tlie opinion of the court. (After stating the facts as above). Two questions, are presented for decision by this record. First: Was. the cotton delivered to the railroad company as a common carrier? Second: If it was delivered, was the-stipulation in the bill of lading that the railroad company would not be liable for the cotton in case of its. loss by fire binding on the shipper? The issuance of the-bill of lading carries the presumption that it was delivered to the common carrier. The test -by which to determine whether or not it was delivered to the carrier for shipment is whether there was anything to be done by the shipper before the cotton was to be shipped by the railroad. If the shipper must perforin 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 ho further act or thing to be done by 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 cotton is actually ready for shipment. The liability of the carrier as a common carrier be- , gins when a shipper has done all that is required of him and paid the proper charges. The rule is stated in section 113 of Hutchinson on Carriers, vol. 2, as follows:- “But if the delivery be made at the warehouse or other place of business of the carrier for as early transportation as can be made in the course of the carrier’s business, and subject only'to such delays as may necessarily occur in awaiting thé departure of trains, vessels, or other vehicles or transportation, or from the performance of prior engagements by him, he becomes, the moment- the delivery is made, a carrier as to the goods, and his responsibility as such at once attaches. And although there be considerable delay and long storage of' — 561 — the goods until the carrier can secure cars in which to make shipment, if he receives them solely for transportation, he at once assumes the liability of a common carrier; and it makes no difference, it has been said, whether the loading is to he performed by the shipper himself or by the carrier. And the general and well-settled yule is that the liability of the common carrier commences whenever and as soon as the goods have been delivered to and accepted by him solely for transportation, although they may not he put immediately in itinere, hut are, at first, for his own convenience and preparatory to the voyage or journey for which they are intended, temporarily deposited in his wharf or store'room. In such cases, the deposit is a mere accessory to the carriage, and does not postpone his liability as common carrier to the time when they shall be actually put in motion towards their place of destination. And a delivery to the carrier with the name and address of the consignee marked upon the goods is, in the absence of some directions or agreement otherwise, equivalent to an express direction to transport them to such consignee at once, and the reception of the goods under such circumstances imposes upon him, immediately, the obligation to forward forthwith, and the responsibility of a common carrier, unless the habitual course of dealing between the parties has been otherwise.” We think that, measured by these rules, there was a aelivery to the railroad company of the cotton in its capacity as a common carrier. It collected the charges for compressing, and under its contract with the compress company this cotton must be compressed and prepared in a certain way. It could have shipped the cotton at once, but it elected to not ship the cotton at once but permitted it to stand in the warehouse awaiting its own convenience in shipping it, as it contracted to do in the bill of lading. There is nothing in this record from which we can infer any purpose on the — 562 — part of the shipper to have the shipment delayed. It is contended herb that the railroad company could not identify the cotton on the marks shown in the bill of lading because such marks were not actually upon the bales of cotton, at the date of the issuance of the bill of lading, as shown by the testimony of the compress employees and the railroad agent. However, the railroad company' had the right to inspect the compress an'"' any of its books, and it clearly appears that there is no trouble in taking the clearance receipt issued by the compress to the shipper upon which the railroad issued the bill of lading, ahd identifying the cotton. The railroad itself had made the necessary arrangements and contracts to have the cotton shipped over its line in the manner in which this cotton was handled. The railroad company wholly failed to meet the burden imposed upon it to show that the cotton was not in condition for shipment, and that some further act must be done by the shipper. This state has decided these questions adversely to the railroad company in several cases. Illinois Central R. R. Co. v. Lancashire, 79 Miss. 114, 30 So. 43; Southern Express Co. v. Craft; 49 Miss. 480, 19 Am. Rep. 4; St. Louis & S. F. R. Co. v. Woodruff Mills, 105 Miss. 214, 62 So. 171; Hazard & Chapin v. Illinois Central R. R. Co., 67 Miss. 32, 7 So. 280. We fail to find where the federal courts have rendered any decision contrary to the views expressed in these authorities of our state, and we think the same rule prevails in the federal court Coming to the second question, we think that the company is liable as an insurer under the common-law rules goA7erning carriers. It is clear from the agent’s testimony and from the bills of lading introduced in evidence that there was no alternative rate at the Houston, Miss., of6.ee, and .if the shipper had demanded a rate other than the one here in’evidence the carrier would wholly have been unable to furnish a bill of lading. The agent undertakes to say that if the — 563 — shipper had requested a higher rate he would have taken up the question with his superior officer and have ■ascertained whether he could have furnished such rate, We think that it is the duty of the railroad company to have the bill of lading at its office where the shipper ■applied in order to bind the shipper in a ^contract for a limited liability. The shipper does not have to wait until the agent can communicate „ with a foreign office or go-to other places to find a bill of lading. However, it appears to our satisfaction that there was no such rate at any office of the railroad company because the railroad company had never filed any such rate with the Interstate Commerce Commission as required by law. We concede that if the rate and tariff had been on file with the Interstate Commerce Commission, and also on file in ihe office at Houston, the railroad could limit in a reasonable manner its common-law liability, and that the shipper would be bound by such stipulation, even though it did not see or read such tariff. The carrier, however, at'this time, could not free itself from all liability for losses by fire for two reasons; first, it ■could not contract against its negligence because that would be contrary to public policy; and, second, the Carmack Amendment to the Hepburn Act of 1906 makes -the carrier liable for some value, as we understand the ■decisions of the United States supreme court. See Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; M. K. & T. R. R. Co. v. Harriman Sons, 227 Ú. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690; Pierce Co. v. Wells Fargo & Co., 236 U. S. 278, 35 Sup. Ct. 351, 59 L. Ed. 576; Coal Co. v. Railroad Co., 239 U. S. 446, 36 Sup. Ct. 137, 60 L. Ed. 375; Boston & Maine R. R. v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, 58 L. Ed. 868. In this last case, at page 111 of 233 U. S., at page 528 of 34 Sup. Ct., at page 875 of 58 L. Ed., the court says: “When there are two published rates, based upon •difference in value, the legal rate automatically attaches — 564 — itself to the declared or agreed value. Neither the intentional nor accidental misstatement of the applicable published rate will bind the carrier or shipper. The lawful rate is that which the carrier must exact and that which the shipper must pay.” And further says, quoting from Chicago, R. I. & P. R. Co. v. Cramer, 232 U. S. 490, 34 Sup. Ct. 383, 58 L. Ed. 697: “That rule of liability (the uniform rule established by the Hepburn Act) is to be enforced in the light of the fact that the provisions of the tariff enter into and form a part of the contract of shipment, and if a regularly filed tariff offers two rates, based on value, and the goods are forwarded at the low value in order to secure the low rate, then the carrier may avail itself of that valuation when sued for loss or damage to the property,” The court also in the same case quoted from Great Northern R. R. Co. v. O’Conner, 232 U. S. 508, 34 Sup.Ct. 380, 58 L. Ed. 703: “But so long as the tariff rate, based oh value, remained operative, it was binding upon the shipper and carrier alike, and was to be enforced by the courts in fixing the rights and liabilities of the parties. The tariffs are filed with the commission and are open to-inspection at every station.” Of course the railroad must have the rate approved by the commission and must have it on file available to the shipper, and in this case it does not appear that the carrier had the higher rate on file with the commission, nor does it appear anywhere in the record what the terms and conditions of such bill of lading were or what particular bill of lading and what- particular stipulations could have been procured by the shipper if he had even applied to the superior officers of the company for such rate. The shipper has the right to have the carrier carry his goods on the common-law liability, and before the carrier can exonerate itself' — 565 — from this liability it must have an alternative rate on hie with the commission and at its station where the goods are tendered for shipment. In addition to what we have said, the peremptory instruction would have been error even had the carrier succeeded in showing its liability was that of warehouseman and not that of common carrier. The plaintiff tendered proof to show that the cotton was burned through the negligence of the carrier, and it could not escape liability as a warehouseman on the contention made here that no such liability was set forth in the pleadings. The notices under the general issue and the counter notices. under our statutes are simplified forms of pleadings. As shown in the statement of facts, the suit was sought on the common-law liability in the declaration, and the railroad company, under its notice under the general issue, which constitutes part of "the pleading; alleged the cotton was destroyed by fire not caused by its negligence. The. plaintiff in reply to this defense insisted, under the notice, that it was caused by the negligence of the railroad company, and the proof tendered tended clearly to establish such negligence. The parties having agreed on the value and weight of the cotton in question, the judgment of the. court below will be reversed, and judgment entered here for the value of the cotton, with six per cent, interest from ■date of suit and cost in favor of appellant. Reversed, and judgment here.