them in the capacity of common carrier. His liability in that capacity commences upon the complete delivery of the goods for immediate transportation. 1 Wyman on Public Service Corporations, § 393.

In Barron v. Eldredge, 100 Mass. 455, the question arose whether certain flour and grain belonging to the plaintiff, which was destroyed by fire while in the defendants' shed and elevator, was held by the latter as warehousemen or as common carriers. The court, on pages 458 and 459, said: "The responsibility of a carrier for goods intrusted to him commences when there has been a complete delivery for the purpose of immediate transportation. . . . The delivery must be for immediate transportation, and of course it cannot be complete if anything remains to be done by the shipper before the goods can be sent on their way."

In Watts v. Boston & Lowell R. Corp., 106 Mass. 466, the property was destroyed by fire before transportation and before the shipper had delivered the entire lot to be shipped. The court said (page 468): "It could not be said that the duty of carriage had commenced until the whole had arrived. . . . It [the ruling of the trial court] lays upon them the liability of carriers, while they have as yet assumed only the duties of warehousemen."

Other authorities to the same effect are: Murray v. International Steamship Co., 170 Mass. 166, 48 N. E. 1093; Judson v. Western R. Corp., 4 Allen (Mass.) 520; Tate v. Yazoo & M. V. R. Co., 78 Miss. 842, 29 So. 392; Kansas City, M. & O., R. R. v. Cox, 25 Okl. 774, 108 Pac. 380; Basnight v. Atlantic & N. C. R. Co., 111 N. C. 592, 16 S. E. 323; O'Neill v. N. Y. C. & H. R. R. Co., 60 N. Y. 138; St. Louis & T. H. R. Co. v. Montgomery, 39 Ill. 335.

There is perhaps not so much dispute as to the law applicable to this point, as upon the questions of what facts have been found, respecting the delivery of the goods for transportation, and what inferences or conclusions could properly have been drawn by the trial court from such facts.

The plaintiffs, in accordance with the conclusion of the trial court, claim that the facts found show that there was a delivery of the goods to the defendant as a common carrier, and that the defendant had them in its custody in that capacity at the time of the fire, while the defendant claims that the facts show that they were not so delivered to and held by the defendant.

It is expressly alleged both in paragraph 4 of the complaint, and in the plaintiffs' reply to the third defense, that the loading of the car had not been completed at the time of the fire.

Regarding the delivery of the goods to the defendant, these facts

appear from the finding: The defendant furnished the plaintiffs with a baggage car to be used in the transportation of the plaintiffs' theatrical goods, including two ponies, from New London to Middletown. The car was to be loaded by the plaintiffs and was to be attached by the defendant to its passenger train which left New London at 7:35 Monday morning. The plaintiffs were to give proper notice at initial points as soon as the car was loaded and ready to go forward and were to assign a man to safeguard the goods in the car. The ponies were not to be placed in the car until Monday morning, and not later than one hour before the time the passenger car was to leave New London. They had not been placed in the car at the time of the fire, and no notice, other than that above stated,2 had been given, that the car was loaded and was ready to go forward, and it does not appear that the plaintiffs had assigned a man "to safeguard" the effects in the car.

These facts clearly show that, at the time of the fire, the plaintiffs' goods, which were to be transported by the defendant, had not been completely delivered, but that there remained something to be done by the shipper before they could be sent on their way. But the plaintiffs claim that it appears that on Saturday night they notified the defendant that everything was in the car; that thereafter the defendant took charge of the car, and locked it, and moved it from the spur track to a freight track on the other side of the yard, and thereby took the plaintiffs' property into its custody as a carrier.

There was no other notice given than that the plaintiffs' agent, at about twelve o'clock Saturday night, told an employee of the defendant, and who was not the yardmaster, but was standing near the car, that everything was in the car. The plaintiffs' agent knew that the ponies were not in the car, and supposed that said employee knew they were not. He did not intend to be understood, nor suppose he was understood, as saying that the ponies had been placed in the car. It was evidently understood by both parties that the ponies were thereafter to be placed in the car.

It does not appear by whom the car was locked, nor does it appear that the car was moved with the intention on the part of the defendant, to thereby take control of the plaintiffs' goods as ready for transportation. Apparently the car was moved by the defendant, for the convenience of the plaintiffs in loading the ponies, and it does not appear to be material by whom it was locked.

The trial court erred in its conclusion from the facts found that before the fire the plaintiffs' property had been delivered to and received by the defendant for transportation as a common carrier. 2 See the next two paragraphs.— ED.

Our conclusion above stated controls the decision of both of said cases, and renders it unnecessary for us to decide said second claim of the defendant, as to the validity and effect of said release.

There is error, and the judgments of the superior court in said cases are reversed, and the cases remanded, with direction to render judgment in said cases for the defendant.

In this opinion the other judges concurred."

RAILWAY COMPANY v. MURPHY.

60 Ark. 333. 1895.1

WOOD, J. This suit was to recover of appellant company for loss of cotton which, it is alleged in the complaint, had been delivered to appellant as a common carrier for immediate transportation. The answer of appellant denies that the cotton was delivered to or received by it, or that it agreed to transport the same. There was a verdict and judgment for $1,016.15.

The proof, so far as it may be necessary to state it in order to present the rulings of the lower court and of this court, is substantially as follows: John P. Murphy, plaintiff, lived and did business as a merchant and planter at Fairfield, on appellant's railway. Fairfield had been a regular station, with an agent located there, from 1884 to the close of 1887, when the agent was with

3 See Burrows v. Chicago, B. & Q. R. Co. (1909), 85 Neb. 497 (similar to the principal case); St. Louis, A. & T. H. R. Co. v. Montgomery (1866), 39 Ill. 335 (after loading shipper asked that shipment be delayed): Missouri R. R. Co. v. Riggs (Kan., 1900), 62 Pac. 712, O'Neill v. New York C. & H. R. R. Co. (1875), 60 N. Y. 138 (part only of goods to be shipped together had been delivered).

66

It is true, too, that where the carrier places a person in charge of the business at a depot and holds him out to the public as being qualified with the requisite authority to receive shipments, a delivery to and an acceptance by such agent of the goods is a delivery to the carrier. (Hutchinson on Carriers [3 Ed.], secs. 105, 106, 119.). . . In this case, we believe the question of whether defendant accepted the car of lumber for transportation was one for the jury. In other words, as a jury was waived in this instance, the question was one of fact for the trial court who tried the issue. Be this as it may, the bill of lading is prima facie sufficient as it is fair on its face and the burden was on the defendant to overthrow it. . . . Of course the contractual clauses of a bill of lading are immune from variation or attack by parol testimony, except for fraud. accident or mistake, but the mere receipt for the goods therein involved is in no sense conclusive, and the carrier is permitted, if it can, to show that, notwithstanding the recital of a receipt of the goods, the goods were in truth and in fact never delivered to it. But in such cases, the burden is on the carrier to show the goods were never delivered to it and therefore not in its possession. (Hutchinson on Carriers [3 Ed.]. secs. 158 Milne v. Chicago, R. I. & P. Ry. Co. (1911).

159, 160, 161, 162, 163.) " 155 Mo. App. 465, 472, 474.

1 The statement of the case and the argument of counsel are omitted.— ED.

drawn, and since which time there had been no agent there. It was a post office, and passenger trains stopped there regularly. Freight trains stopped occasionally, whenever freight was to be delivered to the company for shipment, or when freight was to be received. The freight trains were stopped by flagging them down. Even when there was a regular agent at Fairfield, freight trains did not stop unless they were flagged or had freight to unload. The company had its switch and platform on its own premises for the purpose of receiving and shipping freight. Freight shipped there had to be prepaid. For years John P. Murphy had been shipping cotton from Fairfield. The witness, in answer to the question, "What was the custom of the defendant company in the acceptance of freight for transportation?" said: "When we had cotton to ship, we notified the company's agent at Noble Lake or Pine Bluff, and they would lay off a car at the switch. We would load the car, and notify the same agent that we had finished loading it, and then they would move the car. The conductor would come along, and give us a receipt for the cotton, and we would carry the receipt to the agent at Pine Bluff, and he would give us a bill of lading." The witness further stated: "The conductor would take the car, and give us a receipt for it. He would check the cotton before he gave a receipt. They had a blank form which I would fill out and the conductor would sign. I had such a receipt filled out from Tuesday, when the car was loaded up, to the time it was burned." In the present instance the car was ordered when the cotton was ready for shipment. The conductor laid it off at the switch on Saturday. It was loaded with the 25 bales of cotton by John P. Murphy on the Monday following, and on Tuesday the following letter was sent to the agent at Pine Bluff:

Mr. Reinach, Agent Pine Bluff:

"Fairfield, Nov. 25, 1891.

Dear Sir: Have car loaded with cotton on switch here for Please have moved as soon as possible.

New Orleans.

Yours truly,
JOHN P. MURPHY.

per C. McN."

This letter was received by the agent at Pine Bluff on the morning of the day after it was written, who immediately telegraphed the train master at Little Rock that the car was ready to be moved. A book was identified as the cotton book kept by John P. Murphy, the entries in his handwriting showing the weights, marks of the cotton, names of consignor and consignee, and date of shipment,

and the witness testified his belief as to its correctness. The book was admitted in evidence over the objection of the defendant. The cotton was set fire to and destroyed by a tramp on the night of the 27th of November, 1891.

The dominant question in the case, as presented by the pleadings, the proof, and the instructions, is, was there a delivery?

When the shipper surrenders the entire custody of his goods to the carrier for immediate transportation, and the carrier so accepts them, eo instanti the liability of the common carrier commences. When this occurs, the delivery is complete, and it matters not how long or for what cause the carrier may delay putting the goods in transitu; if a loss is sustained, not occasioned by the act of God or the public enemy, the carrier is responsible. But, on the contrary, as there is no divided duty of safe-keeping and no apportionment in the event of a loss between the owner and the carrier, the surrender of control over the goods by the shipper must be such as to give the carrier the unqualified right to put them at once in itinere, and the carrier must have received them for that purpose. So that, when goods are delivered to the carrier that are not yet ready for shipment, awaiting further orders from the owner, or the happening of some contingency or compliance with some condition before they are ready to be moved, the liability of the carrier in the meanwhile can be no greater than that of an ordinary depositary or bailee. These general principles are recognized by all the authorities. Hutch. on Car. secs. 82, 88, 89, 94; Angell on Car. secs. 129-131; 2 Rorer on Railroads 1279; 2 Redfield on Railways 67 et seq.; L. R. & F. S. Railway v. Hunter, 42 Ark. 203; O'Neil v. N. Y. Cent. &c. R. Co., 60 N. Y. 138; Rogers v. Wheeler, 52 N. Y. 262; Story on Bailments, sec. 532; Wells v. Railroad Co., 6 Jones (N. C.) 47.

But the statement of the law is much easier than its application to the facts of each particular case. As Mr. Hutchinson says: "It frequently becomes a question of the greatest importance and of great nicety to determine at what instant of time the delivery becomes complete." Hutch. on Car. sec. 94. The true legal test of the common carrier's liability, then, is a complete delivery. The time, place, and manner of such delivery, to make it complete, may depend upon the conventional arrangement between the parties. But, in the absence of any express stipulation, the carrier may as effectually bind himself by a uniform and usual course of business, sufficiently long continued to have become an established usage. Hutch. on Car. secs. 90, 93; 2 Rorer on Railroads 1279; Chitty on Car. 27, note; Montgomery &c. Ry. Co. v. Kolb, 73 Ala. 396: