Illinois Central Railroad v. Lancashire Insurance

79 Miss. 114

• Court: Mississippi Supreme Court
• Decided: March 15, 1901
• Status: Published

Opinion

Harder, Special J.,

*

delivered the opinion of the court.

This case was tried in the court below on an agreed statement of facts. This agreed statement, in some respects, is meager and unsatisfactory, and we have had some dfficulty in deter mining its legal effect. But, interpreting it in the light of other evidence in the record and admissions of counsel in their briefs, we think it fairly shows the following facts: Certain persons deposited cotton with the Shippers’ Compress Company, of West Point, Miss., to be compressed for shipment over the Illinois Central Railroad after it had been so compressed, and nothing further remained to be done to prepare it for shipment. The railroad company issued its several bills of lading on such cotton, all of which was consigned to points in other states of the United States, except one lot, which was consigned to some point in Canada. These several bills of lading contained a stipulation in these words: “Such liability to be only for such loss or damage occasioned by wrongful acts or gross negligence of carrier.” The railroad company had previously taken out a policy of insurance against loss or damage by fire in the Lancashire Insurance Company, which policy contained a provision describing the property to be covered thereby in these words: “On cotton in bales for which bills of lading have been issued by their duly authorized agents, and for which they shall be liable, while contained in Shippers’ Compress, West Point, Mississippi. ’ ’ This cotton, while still in the hands of the compress company, awaiting the pleasure of the railroad company to load it on its cars, and, after the bills of lading had been issued thereon, was destroyed by fire, without any negligence, fault, or wrong on the part of the railroad company. The railroad company, conceiving itself to be liable, paid the value of the cotton so destroyed to the several consignees, who presumably held the bills of lading from the consignors, as evidenced by the several receipts in the record.

Thereupon the railroad company brought this action against the Lancashire Insurance Company, seeking to hold it liable on its contract of insurance for the loss thus sustained by the destruction of the cotton in question. The court below gave judgment for the defendant, the insurance company, and the plaintiff, the railroad company, appealed.

It is contended here, in the first, place, on behalf of the appellee, that there was no sufficient delivery of the cotton to appellant to render it liable under its bills of lading. It will be noted that, though the cotton remained in the hands of the Shippers’ Compress, nothing remained to be done by the owners to complete the delivery, and the railroad company had only to load it on the cars. The issuance of the bills of lading is, at least, prima facie evidence of delivery, and nothing shown in the agreed statement of facts suffices to rebut such presumption. The contract of insurance itself manifestly contemplates j ust such delivery as was here made, and none other; for, by its terms, it is made to cover only cotton in the Shippers’ Compress, and everything looking to a delivery had been done, except the taking of the cotton out of the Shippers’ Compress and loading it on the cars. If the contention of appellee on this point be sound, it is difficult to see how any liability could ever have arisen under its contract. But we think that the record, fairly interpreted, shows that the bills of lading were held by the consignees, who were bona fide holder's for value; and, if that be true, the question of delivery is controlled by § 4299, code 1892, which provides that bills of lading in such cases shall be conclusive evidence of delivery.

In the next place it is insisted by appellee that the railroad company was not liable for the destruction of the cotton, under the terms of its bills of lading, since they limited its common-law liability as an insurer. It is conceded by the appellant that this contention is correct, if such provisions in the bills of lading be valid and binding under the circumstances of the instant case. It is well settled that, since a common carrier exercises a public employment, it cannot by any act of its own evade the duties imposed on it as such by law. Hence a carrier cannot refuse to carry for a shipper because he declines to enter into a special contract limiting its common-law liabilities. The common carrier must at all times be ready and willing to contract with the shipper on the terms and conditions imposed by law. If the carrier desire to limit its common-law liability, it can only do so by special contract with the particular shipper, freely and fairly entered into, and upon sufficient consideration. If there be but one contract and one rate open and offered to the shipper, and no option or choice be given him, then it seems clear that a special provision limiting its common-law liability under such circumstances is without consideration and void. It was held in the case of Railroad Co. v. Gilbert, 88 Tenn., 430; 12 S. W., 1018; 7 L. R. A., 162, that a fire clause in a bill of lading exempting the carrier from loss by fire is not valid where transportation according to the rules of common law is not offered as an alternative, and no reduction of rates is made as a consideration for the exemption. This rule seems to be founded on a wise policy. See, also, Railway Co. v. Cravens (Ark.), 18 L. R. A., 527; s.c. 20 S. W., 803, and cases there noted. In the instant case, as we interpret the agreed statement of facts, there was but one form of contract and but one rate of freight open and offered to the shipper; that, as to the shipments within the United States, such rate had been approved by the interstate commerce cominission, and could not have been changed except by its consent. Under such' circumstances, the contract entered into with the shipper by the railroad company limiting its common-law liability as an insurer was without consideration and void. Appellant’s liability as to the cotton in question was clear, and, having met the same, it was clearly entitled to recover from appellee on its contract of insurance.

The judgment of the lower court is reversed, and the cause remanded.

Judge Calhoon, having been of counsel in the case before Ms appointment to the bench, recused himself, and W. B. Harper, Esq., presided as special judge in his place.