D'Utassy v. Southern Pacific Co.

Headnote

D’Utassy v. Southern Pacific Co., 174 App. Div. 547 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 11, 1916, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. Plaintiff’s assignor delivered to the defendant as a common carrier for hire forty-five bales of cotton consigned to New Orleans, La. The answer admitted the non-delivery of the cotton; and its value and ownership and the assignment of the claim to the plaintiff were duly proven. It appeared that the defendant and its connecting carriers had duly transported this cotton as far as Houston, Tex.; that at Houston, Tex. the cotton

was in the actual possession of the Galveston, Harrisburg and San Antonio Railroad Company, the connecting carrier, which delivered the cotton to the Cleveland Compress for compressing by it as the agent of the defendant and as a part of contract of carriage; and that the cotton was destroyed by fire while in the compress without negligence on the part of the defendant or of the compress company. Plaintiff contended that the defendant was at the time of the loss of the cotton under the common-law liability of an insurer, inasmuch as neither the tariffs nor the bill of lading under which the shipment moved in any way limited the defendant’s liability for the loss.