Seaboard Air-Line Railway v. Atlantic Compress Co. , 135 Ga. 413 ( 1910 )

Lumpkin, J.

(After stating the foregoing facts.) This case is practically controlled by the decision in Atlantic Compress Co. v. Central of Georgia Ry. Co., 135 Ga. 140 (68 S. E. 1028). It was there held, that the giving of a receipt by the compress company to the owner of the cotton, containing a reference to the conditions of the bill of lading of the railroad company, and the substitution for such receipt of the bill of lading of the railroad company, in which there was a provision that “No carrier or party in possession of all or any part of the property herein described shall be liable for any loss thereof, or damage thereto, by . . fire,” did not constitute an express contract between the owner of the cotton and the railway company, so as to exempt the latter from liability to the former for loss of the cotton by fire, under the provisions of the Civil Code of 1895, § 2276, that “A common carrier can not limit his legal liability by any notice given, either by publication or by entry on receipts given or tickets sold. He may make an express contract, and will then be governed thereby.” It was further held, dealing with a like contract, that proof of the loss of the cotton by fire and payment to the owner by the railway company of the value of such cotton made a prima facie case of liability of the compress company to the railroad company on the indemnity contract.

The rule is recognized that the liability of the carrier does not begin until delivery of property to him or to his proper servant authorized to receive it for carriage. It has also been held, that, although physical delivery may have been made, if something required either by the law or the contract remains to be done by the shipper before transportation, the liability of the company' may be that of a warehouseman rather than that of a carrier. There is some difference among the authorities as to what constitutes a delivery to the carrier or its authorized agent. Under the contract between the two companies, the mere statement that when a railroad company shall issue its bill of lading for compressed cotton to be delivered to it for shipment at the compress of the compress company, the latter company shall look to the shipper of such cotton for its charges, and not to the railroad, company, was not sufficient to negative the fact of delivery to the carrier or its authorized agent, so as to prevent any liability from arising on the part of the carrier to the shipper.

The decision in the case of the Missouri Pacific Ry. Co. v. McFadden, 154 U. S. 155 (14 Sup. Ct. 990, 38 L. ed. 944), was cited. In that case an answer was filed by the defendant, alleging, among other things, that the railroad company, for its own convenience and the convenience of its customers, was in the habit of issuing bills of lading for cotton delivered to the compress company, to be compressed before actual delivery to the railroad company, with no intention on the part of the shipper or of the carrier that the liability of the latter should attach before delivery on its cars; that this custom was well known to the plaintiff, who was the owner of the cotton, and the bills of lading were made out and accepted in accordance with such custom; that the cotton was in the hands of the compress company in accordance •with such custom, and had never been delivered to the railroad company, and was under the control of the shipper or his agent, and had not been delivered to the defendant when destroyed by fire. The court sustained an objection to this plea. After verdict in favor of the plaintiff, the case was carried to the Supreme Court of the United States 'by writ of error. The judgment of the trial court was reversed. After discussing the fact that, under the allegations of the plea the railroad company was not liable, Mr. Justice Write said, in conclusion: “Of course, in so concluding, we proceed solely upon the admission which the exception to the answer necessarily imported, and express no opinion as to what would be the rule of law if the compress company had not been the agent of the shipper, or if the goods had been constructively delivered to the carrier through the compress company, who held them in the carrier’s behalf.” The transaction alleged in the present ease, including the contract between the railroad and the compress company, the receipt given by the latter to the owner of the cotton, “to be compressed and loaded for Seaboard, subject to all the conditions of bill of lading of above-named carrier, which may be issued in exchange for this receipt,” and the issuing of the bill of lading by the carrier, distinguishes this case from the one above' cited, in the manner indicated by Mr. Justice Wiite in the quotation made. Accepting the allegations of the petition as correct, as we must do on demurrer, it was error to dismiss the case. Judgment reversed.

All the Justices concur.