Illinois Cent. R. v. Shaw , 128 Miss. 9 ( 1921 )

Smith, C. J.,

delivered tbe opinion of the court.

This was an action at law by the appellee to recover, from the appellant the value of certain property shipped to the appellee from Memphis to Duck Hill, Miss., over the appellant’s railroad, and which was destroyed by fire while in the appellant’s depot at that place. The cause was submitted to the judge of the court below, and tried by him without a jury on the following agreed statement of facts: *

“We agree that the facts in this'cause are as follows: That the goods, amounting to the value of one hundred and forty-two dollars, were shipped from Memphis, Tenn., on March S, 1921, over defendant’s railroad, ánd consigned to plaintiff, and that said shipment arrived at Duck Hill, Miss., a station on defendant’s railroad, and the point of destination, and reached said Duck Hill about noon on Thursday, March 10, 1921; that said goods were speedily unloaded abd placed in defendant’s depot; that defendant’s agent, at request of plaintiff, at about four or five o’clock in the evening of the same day that said consignment arrived, mailed notice of its arrival to plaintiff’s post office address at Embry, Miss., about twenty miles distant from Duck Hill in the country. See Exhibit No. 1 hereto, and made part hereof.

“That in due course of mail the said card would have arrived at Embry, Miss., on Friday, March 11, 1921, at 2 p. m.; that plaintiff’s post office address is 'Embry, Miss., Eoute 1;’ that said card after its arrival at Embry, Miss., was sent out to plaintiff’s house on said route (his post office box) on Saturday March March 12*, 1921, in the afternoon between four and fiye o’clock; that plaintiff’s mode of hauling was in two-horse wagon; that on Monday morning after said card was received plaintiff sent wagon to Duck Hill for his said freight, and on his arrival there found out for the first time that the depot afid goods had been destroyed by fire the night before, Sunday night at eight p. m. Claim was filed by plaintiff on 20th of April, 1921, with defendant’s agent at Duck Hill for said goods, and payment refused at point of destination.”

Judgment was rendered for the appellee. The bill of lading on which the property was shipped contains the following stipulation:

“For loss, damage or delay, caused by fire occurring after forty-eight hours (exclusive of legal holidays) after notice of arrival of the property at destination or at port of export (if intended for export) has been duly sent or given, the carrier’s liability shall be that of warehouseman only.”

As we understand the brief of counsel for the appellant, their sole contention is that the forty-eight hours during which the appellant continued liable as a common carrier for loss or damage to the property began on the mailing of the notice to the appellee. The ground of this contention is: First, that the bill of lading expressly so stipulates; and, second, that by requesting that the notice be mailed to him the appellee made the postal department his agent for the receipt of the notice.

A notice is sent ordinarily when it is dispatched by an agent or messenger, but it is hardly possible that the notice here provided for was intended to become effective before being received by, in the absence of some default on the part of, the consignee, for the only .purpose it could serve would be to inform the consignee of the arrival of his property at its destination so that he could accept and remove it; and, construing the language most strongly against the appellant, as we must do since it is contained in its bill of lading, and so as to effectuate the evident intention of the parties, we must assume that the receipt, and not the mere sending of the notice, was contemplated. St. Louis, B. & M. R. R. Co. v. Hicks (Tex. Civ. App.) 158 S. W. 192.

By requesting that the notice be mailed to him the ap-pellee did not make the postal department his agent for the receipt of the notice. At most he sifnplv agreed that the post office might be the agency for the transmission to him of the notice.

Affirmed.