(dissenting.) I do not agree with the majority of the court in holding that the liability of the railway company for the loss of the cotton is established by undisputed evidence, and that the trial court was correct in directing a verdict for the plaintiff. The cotton was consigned to the shipper’s order, care of the compress compaany at El Dorado. The railway company complied with the contract by delivering it to the compress company. The language of the contract was, in effect, a selection in advance by the, consignee of a place of delivery and a designation of an agent to accept delivery for him. The consignee can not complain because the carrier delivered the cotton at the place and to the agency designated, without requiring a surrender of the bill of lading, nor can the assignee of the consignee complain, unless the statute quoted in the majority opinion prohibits a delivery by the carrier, under the circumstances of this case, without requiring a surrender of the bill of lading. I do not think that the statute in question has any application to the facts.
In the absence of any statute on the subject, it is the duty of a common carrier of freight, either by land or water, when the point of destination is reached, and .the consignee fails to call for the property or refuses to accept it, not to abandon it, but to properly store it for the benefit of the consignee; and the carrier may, when it has no warehouse of its own for bulky freight such as cotton, grain and the like, discharge itself from further liability by placing the goods in store with a responsible warehouseman for the benefit of the owner. When thus delivered, the warehouseman so selected becomes the agent and bailee of the owner. The carrier is not bound to provide storage of its own for bulky freight of that character. 2 Rorer on Railroads, p. 1286; Fisk v. Newton, 1 Denio, 45; Ala. & Tenn. R. Co. v. Kidd, 35 Ala. 209; Navigation Co. v. Marshall, 48 Ind. 596; Merchants Dispatch Co. v. Hallock, 64 Ill. 284.
There is a clear distinction between the duty of a carrier to furnish suitable facilities for loading and unloading freight and its duty in respect to storage of freight. after it reaches its destination. The warehouseman so selected being the agent of the owner, and not of the carrier, the latter is liable to the former for his negligence. The measure of the carrier’s duty is in the selection of a responsible and trustworthy warehouseman. If it exercises ordinary care in selecting a warehouseman of known reliability, and delivers the freight to him for the benefit of the owner, it is not responsible for any loss occurring thereafter by reason of the negligence of the warehouseman in delivering the property to the wrong person. Now, the statute in question does not alter this rule of law in anywise. Notwithstanding the statute, a carrier is not bound to provide warehouse room for storage of cotton or other bulky commodity, nor is it compelled to keep the cotton in cars until called for by the holder of the bill of lading. It may still store with a responsible warehouseman, and thereby discharge itself from further liability. In fact, it is a feature of the transportation and handling of cotton, sufficiently notorious for us to take knowledge of, that railroads do not provide warehouses for cotton at points of destination, but that this feature of the business is taken care of by other concerns owning and operating compresses and storage warehouses at intermediate and terminal points. In the face of this universal custom, I can not believe that the Legislature meant to change the established rules of law concerning the duties of carriers in this respect, and to require the carrier of cotton or other bulky freight either to provide at its own expense warehouses for the storage of such freight, or constitute as its agent other warehouseman whom it may select for the purpose. This would be carrying the effect of the statute, in my judgment, far .beyond the obvious intention of the lawmakers. It seems to me that by this statute it was only intended to prevent a delivery of the freight except upon surrender of the bill of lading, and that the same duty and responsibilty is imposed upon the warehouseman after the freight passes into his hands for storage. In this case it can not be said that the railway company was guilty of any negligence in the selection of a responsible warehouseman. The compress company is conceded to have been entirely responsible at the time of the delivery of the cotton. It was the only storage place for cotton at that point, and was generally used for compress and storage purposes by all who shipped cotton to El Dorado. Moreover, the selection was made by the consignor, who was the consignee, and negligence in the selection, if any, would be chargeable to him, and not to the carrier.
But it is contended that the railway company is liable in this case for the loss of the cotton because its agent was guilty of negligence in failing to notify the manager of the compress company of the fact that the cotton had been consigned to shipper’s order. The opinion of the majority is, as I understand, based upon this theory.
I am not sure that, under the facts of this case, any duty rested upon the railway company to notify the compress company of the nature of the shipment. The consignee having selected the compress company as his agent to receive and store the cotton, it would seem to have been his duty to give the necessary notice that the cotton was to be held subject to his own order. Be that as it may, however, I think the trial court was clearly in error in directing a verdict, as it was not shown beyond dispute that the agent of the railway company failed to notify the manager of the compress company that the cotton was consigned to shipper’s order.
' In the first place, this instruction was erroneous because the negligence of the railway company in this regard was not put in issue by the pleadings. The complaint contains no allegation of negligence in this respect. It is simply alleged therein that the defendant received the cotton for shipment, and failed to deliver the same to plaintiff as the holder of the bills of lading, and judgment is asked, on that account, for the value of the cotton. The plaintiff manifestly relied upon __ the force of the statute in prohibiting a delivery without surrender of the bills of lading, and not upon any negligence of the carrier in delivering to the compress company without notice of the nature of the consignment. The court, in directing a verdict on this question, did so upon a charge of negligence not set forth in the pleadings.
In the next place, the direction was erroneous because the testimony was conflicting as to whether proper notice was given, and it should have been submitted to the jury. The railroad station agent testified that the book from which the manager of the compress company checked up the cotton and signed .receipts for same showed that the cotton had been consigned to shipper’s order. The jury would have been justified in finding from this that the manager received information as to the nature of the consignment and that the cotton must be held subject to the shipper’s order. It is true that on cross-examination of the witness the plaintiff undertook to discredit this testimony by showing that the letters “S. O.,” meam ing “shipper’s order,” appeared written on the book in a different handwriting from that of the other memoranda. The witness admitted that this appeared to be true in some instances, but he does not say when it was written, or that it might have been added after the delivery of the cotton and signing of the memoranda in the book, and, taking the whole of his testimony, the jitry might have found from it that the letters “S. O.” were a part of the memoranda in the book when signed by the manager of the compress company, and that it conveyed the necessary information to the latter. The manager of the compress company, ydio received the cotton, was introduced as a witness by plaintiff, and testified concerning the transaction, but he does not say positively that the letters “S. O.” were not in the book when he signed it. He merely said that “if it did, I don’t remember ever seeing it in there.” I think the majority opinion is inaccurate in th.e statement that the letters “S. O.” appear to be upon the book, but were placed there after the cotton was delivered. There was sufficient evidence to go to the jury upon the question of defendant’s negligence in delivering the cotton to the compress company without directions or information.
Moreover, the undisputed testimony shows that the compress company and the Alphin & Take Cotton Company, two corporations, were under the same management. 'E. H. Take was the active controlling officer in both, and directed the business affairs of each. He purchased the cotton for' the Alphin & Take Cotton Company, and directed the method of shipment; the cotton was handled by the compress company under his management and direction, and he shipped it out from the compress company. He is the individual who is solely responsible for the diversion of the cotton. Under those circumstances I think it would be a manifest injustice to charge the railway company with negligence in failing to give information to the compress company of facts which it already knew through the man who was controlling and directing' its affairs and business in handling this cotton. At least, it seems to me that this situation was sufficient to go to the jury on the question of negligence; for, if the compress company already knew that the cotton was to be held subject to the shipper’s order, the railway company should not be charged with negligence in failing to again give information of that fact, nor could the negligence of the railway company under those circumstances be the proximate cause of the loss of the cotton.
The judgment should, in my opinion, be reversed, and the case remanded.