Safe KF i146 '.S5 \ ■ -LJ o I » 2 S? z / [SAmPIiE FAOES.] Ga.] CENTRAL RAILROAD v. nyjGHT.MANUF'G CO./ SUPREME COURT OF GEORGIA. Cenxral Railroad, etc., v. Dwight Manufacturing Co. Filed Feb. 9, 1886. 1. Eailkoads— Connecting JIines— ^Theough Freight Contsaot. ■Wherr a railroad company contracts for the shipment of goods over its own and several con- necting lines, it is a common carrier for the whole route, and liable as such for lo^s any- where along the line. ■2. Ibid— Limiting Legal Liability by Publication. A carrier cannot limit its legal liability by publication or recitals in bills of lading not a part of the contract. Complaint, from Fulton County. The Dwight Manufacturing Co., of Chlcopee, Mass., brought an action in Fulton superior court against the Central Railroad, etc., of Georgia, as a common carrier, for the loss of ten bales of cotton, shipped by S. M. Inman & Co., con- signed to the defendant in error, at Ohicopee, Mass., on two bills of lading dated 15th and 17tb December, 1880, respectively, covering 100 bales each. (Terms of bills of lading appear in opinion.) It was admitted by counsel that the cotton was delivered by the consignor to the railroad company in good order, and was of the value of $574.38; that pending litigation five of the bales had been delivered to consignee ; that plain- ■tifi' in error had delivered the ten bales to connecting carrier, the Ocean Steam- ship Co., and held its receipt for the same in good order; that the Ocean Steam- ship Co. at Savannah had likewise delivered the cotton in good order to the next connecting carrier in New York, and held its receipt for the same. The testimony showed that five bales of the cotton had not been delivered to consignee at desti- nation; that at the time of the shipment of the two lots of cotton in question, plain- tiff in error was holding itself out to the world as a common carrier for the whole distance; that its agent solicited business for the line, representing that it would •carry cotton through safely and speedily; that the rates charged on this cotton was just what other lines leading out from Atlanta was charging on cotton consigned to the same point; that the cotton was placed on the cars before the bills of lading were signed ; that the attention of the consignors was not ■called to the exceptions in the bills of lading, nor did they assent thereto. The bills of lading were admitted in evidence without objection. Plaintiff in error introduced no evidence, relying on the terms of the bills of lading, and the admission of defendant in error, that*he latter had delivered the •cotton to connecting carrier, this being a discharge of its liability. Judgment for defendant in error for value of cotton, with interest from date •of loss, for which error was assigned. Jackson & King, attorneys for plaintiffs in error. (1.) Several connecting railroads, and no express contract by the first for de- livery at final terminus, only the defaulting road liable. Code §2084. (2.) A through freight bill of lading held here as requiring only safe delivery to next carrier. 42 Ga. 641. (3.) In Georgia, the English rule, that the first carrier is liable for the whole route, does not apply to railroads, but does to express companies, the latter not being exempted in the statute. Code ?2084; 38 Ga. 41, 2 SOUTH-ATLANTIC EEPOETER. [Ga> (4. ) No express contract, no obligation beyond terminus of own line. 25 Ga^ 222; 39 Ga. 636. (5.) "Whatamountstoexpresscontractbypubliclyadvertising,etc. 44Ga.278.. B. F. Abbott, for defendant in error. (1.) Cited Code 82066; 37 Ga. 103. (2.) Through bill of lading. Lawson on Carrieri, ^238; Huteh. Carrier*, §?151,. 152; 10 Rich (S. C.) 382; 52 111. 123; Lawson Carriers §242. (note 29). Blanks unfilled in bill lading. Lawson Carriers §242;. 42 Vermont 566. (3.) The shipper did not assent to the bill of lading. 2 Ga. 349; 36 Ga. 532; 36 Ga. 635; 66 Ga. 485; 68 Ga. 350; 70 Ga. 533. Blandfoed, J. The defendants in error brought their action against the. plaintiff in error for the value of five (5) bales of cotton lost in its transmission from Atlanta, Ga., to Chicopee, Mass., upon the following bill of lading: "Great Southern Freight Line via. Savannah, "j Central Kailroad Company, > Atlanta, Ga., December 17, 1880. J "Received of S. M. Inman & Co. two hundred bales of cotton, marked and numbered as below, to be transported by the Central Railroad, for transporta- tion by that line to Savannah, and thence shipped, with liberty to compress in Savannah, by connecting steamship or steamships bound for ;, to be carried upon said steamships, with leave to tranship to any other steam- ships of the line, and to touch at port or ports, to tow and assist vessels in all situations, and to sail with or without pilots into the port of . The dangers of the seas, of governments, collisions, of fire at sea, or at port, or on shore, accidents from machinery, boiler or steam, or any other accidents or dangers of the sea, river or steam navigation, of whatever nature or kind soever, excepted unto D wight Manufacturing Company, Chicopee, Mass., upon payment of 90 cents per 100 lbs. freights as below." Then there was added this stipulation, in Email print: "In consideration of the cotton herein described is transported at reduced rates, it is mutually agreed,. understood and enacted as a contract between the shippers and the Central Rail- road Co. that since said cotton must pass through the custody of several carriers to the place of ultimate destination, the exception from liability cade by such carriers respectively shall operate in the carriage of them respectively of said cotton as though herein inserted at length, and especially that for all loss or damage occurring in the transit of said cotton the legal remedy shall be sought and held against that particular carrier only in whose custody the said cotton niay be at the time of the happening thereof." This bill was signed C. B. Wal- lace, General Agent. , The evidence shows that S. M. Inman & Co. had contracted with the Central Railroad Co. to ship two hundred bales of cotton from Atlanta to the Dwight Manufacturing Co., at Chicopee, Mass., over the Great Southern Freight Line via. Savannah, at 90 cents per 100 lbs., and had delivered the cotton to the Central Railroad, afterwards the bill of lading was sent to S. M.Inman & Co. It is not shown that Inman & Co. ever agreed to any stipulation therein con- tained. The Central Railroad, under these circumstances, was a common car- rier, and as such was bound for any loss occurring to the cotton, as common car- riers are bound at common law, and the shipper was unaffected by any stipula- tion contained in the bill of lading. The court below held that the stipulation in the bill of lading, "That for all loss or damage occurring in the transit of the cotton, the legal remedy shall be sought and held against that particular carrier N. C] B. F. ELLIOTT V. R. H.WHEDBEE. ' 3 only in ■whose custody the said cotton may be at the xime of the happening thereof," was a condition and stipulation repugnant to the contract, and for that reason void. Whether the court was right or not, is immaterial, under the view of. this case. The Central Railroad ^as liable, as a common carrier, to transport the cotton from Atlanta to Chicopee, Mass., and itcould not limit its jiability in this respect by a mere stipulation to that effect inserted in the bill of lading. Code §2066. "A common carrier cannot limit his legal liability by any notice .giyeii, either by publication or by entry, or receipt given or ticket sold. He may make an express pontract, and then be governed thereby." Code §2068. The stipulation in the bill of lading referred io is not an express cohiract; it was never agreed to by Inman <& Co.; it was merely an attempt on the part of the ■carrier to limit its liability by the insertion of the stipulation in the receipts or bill of lading which is forbidden by the statute. 36 Ga, 532; 68 Ga. 350; 66 Ga. 488; 70 Ga. 533. TJpon the whole, we think the conclusion reached by the court was right, and judgment is affirmed. SUPREME COURT OF NORTH CAROLINA. R. F. Elliott, Adm'r, et als. v. R. H. Whedbee, et als. Filed February — , 1886. 1. EvrDENCE— Wbittes Not Variable by Parol— Cobpoeations— Transfer of Stock. The Intestate died owning a beneflt certificate in a Mutual Insurance corporation, made payable to his personal representative. The by-laws permitted assignment prescribing the formalities. In a contest for the proceeds of the policy between the representative and some of the heirs : Held, that parol evidence of an assignment was Inadmissible, and that the formalities of the assignment must be strictly followed, the same being intended for the pro- tection of the Association. 2. Beneficiaeies in Mutual Insurance Company. A clause in the charter of a Mutual Insurance Company, that the purpose is in part for the "relief of widows and orphans by voluntary contributions," does not mean that the beneflt necessarily enures to the widow and orphans. The representative is entitled to recover, in the absence^of a valid assignment under the by-laws, for purposes of administration. (Sonald v. Benton, 4 Dev. & Bat., 435 ; Etheridge v. Patin, 72 N. C, 213 ; WUsm v. Sandifer, 76 N. C, 347 ; Baker v. T^e SaUroad, 91 N. C, 308 ; Sogers v. Chestnut, 92 N. C. , 81, cited and approved.) This was a civil action tried before Shipp, judge, at spring term, 1885, of Chowan superior court, upon the following case agrdid, to- wit: John W. Nowell died intestate in Chowan county in 1883, leaving him sur- viving, Cornelia O. Nowell, his widow, and the plaintiflF, J. W. Nowell, Jr., and the three feme defendants, Julia, wife of R. H. Whedbee, Ada Nowell, and Sallie, wife of W. H. Elliott, none of whom had any estate, and all are now of full age except the plaintiff, J. W. Nowell, Jr., who was born since the death of his father. Letters of administration on his estate were granted to the plaintiff, B. F. Elliott. Before his death the intestate procured a certificate of membership in the Christian Brotherhood of Norfolk, Virginia, an insurance organization, of which the following is a copy : 4 SOUTH- ATLANTIC REPORTER. [N. C- No, 956. Class 1. The Christian Brotherhood. BenefU Certificate. Know all men by these presents, that John W. Nowell is this day admitted a member of the Christian Brotherhood, entitled to all the benefits of Class No. One, and no other, as the same may appear. In case of the death of the said John W. Nowell, being at the time of his decease a member hereof in good stand- ing and repute, and not in arrears to said Brotherhood in annual dues, assess- ments, or otherwise, the said Brotherhood hereby agrees to pay to the personal representative or representatives of said John W. Nowell, or to the person or persons herein designated by the said John Nowell to receive the same, as the- case may be, a sum of money aggregating in all not more than the sum of one- thousand dollars. * * * * (Signed) John W. Nowell. Countersigned by Richard H. Jones. J. H. Garrett, J gent. General Secretary. On the back of this policy was a printed form for the designation of the beneficiaries, which was as follows: "I desire and direct you to pay all sums of money due and owing my estate, at the time of my death, by reason and virtue of this certificate to , of the State of . Witness : Signature of Holder." The blank after the word "to" was filled in, in the handwriting of the intes- tate, with "my three daughters, Sallie, Julia and Ada," but it was not signed by the intestate, nor was there any witness to the same. At the time of the appli- cation to the agent of the said Brotherhood for the certificate, the intestate said to him that he desired to procure Ihe same for his said three daughters, and al the time of making the above endorsement, he called it to the attention of his- daughter, Ada Nowell, and gave his reasons why he intended it for his three daughters. At the death of Nowell the said certificate was found among his papers and effects, and in the condition exhibited. The defendants, other than Elliott and wife, took possession of the same, and demand-ed payment thereof of the company. The officers of the company said they thought the designation sufficient, but declined to pay because of the adverse claim set up by the plaintiflf, Elliott,. administrator, etc. By consent of the parties, plaintifi' and defendant, the money due bj" the Brotherhood, on said certificate, was collected by the defendants, and deposited in bank, to await the deteiminaticn of this action. In a few w'eeks after the death of Nowell, the plaintiff', John W. Nowell, Jr.- was born. John W. Nowell, Sr., took out the policy in February, 1882, died in February, 1883, and his son John was a child of his second marriage. One of the by-laws of the corporation was, that "members of the society may issue their certificates to whomsoever they may choose, or they may desig- ' nate the person or persons to whom payment shall be made aftfer death." The plaintiffs claim that the money belongs to Elliott, the administrator of Nowell, to be distributed under the statute. Whedbee and wife, and Ada, claim that it belongs exclusively to Sallie, Julia and Ada. The estate of Nowell is solvent, and this fund is not necessary to pay debts.. If the opinion of the court shafl be in favor of the plaintiflfs, judgment shall be rendered in favor of B. F. Elliott, administrator, for $609.85, and interest from; 1884, otherwise for the defendants. N. C] B. F. ELLIOTT v. R. H. WHEDBEE. 5 The Court rendered judgment jin favor^of the defendants, and the plaintiffs appealed. W. D. Pruden, of Pruden & Vann, for plaintiffs. , L. L. Smith, for the defendants. Ashe, J. (after stating the facts). The Christian Brotherhccd was a corpor- ation, chartered by the General Assemby of Virginia, upon the mutual insurance principle. It was made by the charter, capable in law and equity, to sue and be sued, to plead and be impleaded, contract and be contracted with, and use a com- mon seal, etc. In the second paragraph of the charter it was declared : "The objects of this Brotherhood are entirely benevolent, and shall be established in the city of Norfolk, State of Virginia, for the purpose of encouraging a high standard of morality, lightening the burdens of the poor, abating privation and suffering, promoting industry, economy and needed reform, and providing relief for widow and orphans by voluntary contributions." By the fifth paragraph it was authorized to adopt such by-laws as may be necessary for the government of the Brotherhood. The only by-law bearing on the question before us, and the only one referred to by the counsel for the defendant, is as follows: "Members of this society may issue their certificates of membership to whomsoever they may choose, or they may designate the person or persons to whom payment shall be made after death." The next question presented by the record for our consideration is whether the defendants, the three daughters of the insured, John W. Nowell, are entitled to hold the whole of the fund paid on his policy, or whether the plaintiffs, the widow and posthumous son of the insured, are not entitled to share equally with'the defendants in the fund, and if so, whether the administrator may not recover the same for their use. The plaintiffs insist that under the by-law above cited, the representative of J. W. Nowell, that is, his administrator, is designated in the policy as the personi who is to take the amount due upon the death of Nowell, and the defendants- contend, that notwithstanding the policy was made payable to the representa- tive of the insured, the insured had the right under the charter and by-law to- designate the person or persons to whom the policy should be paid, which he had done, by filling in the names of his three daughters in the blank form found, on the back of the policy. We will first consider the question, whether by the designation on the back of the policy, or other matter connected with the transaction, the right to th& policy was transferred to the defendants. There is no provision in the charter, nor any by-law that has been brought to our notice, that the policy issued by the Brotherhood must be taken in the name or for the benefit of the widow, children or family of the insured. The contract evidenced by the policy, is to pay to the personal representative of the insured. That is the agreement. It is in writing and under the seal of the cor- poration, and the evidence offered by the defendants to show that the insured intended the policy for the defendants, was insufficient for the purpose for which it was offered. For parol evidence is not admissible to vary, explain, or contra- -dict an agreement in writing. Donaldson v. Benton, 4 Dev. & Bat., 435; Etheridge V. Palin, 72 N. C, 213; Wilson v. Sandifer, 76 N. C, 347. But it is contended that if the parol evidence tending to show the intention of the insured is not sufficient, the policy and all interest in it was transferred to the defendants by the designation indorsed on the back of the instrument. c6 SOTTH-ATLANTIG REPORTEE. [N. 0. , But; we are of the opinion that it did not* have that "effect, for seyeral reasons. First, because it was incomplete. The by-law permitted the assignment and designation of the person to whom it was to be paid, but the company prescribed the mode by which it should be done, by pla,cing the blank form in pifin^ upon the back of the policy, with the place designated for the signature of the holder and for the names of the witnesses, which shows that it required the assignment as well as designation, to be signed by the holder and attested by a subseribirig witness. In this case, it was neither signed ty the holder, nor attested by a witness. The holder of the policy, when he filled up thri blank in the form for des- ignation with the names of his three daughters, could not help seeing below the printed form, the words: "Signature of holder," and"witness." This omission to sign, under the circumstances, leads to the conclusion that it was done with a pur- pose, and that he had some reason for not completing, at that time, the designa- tion, by signing his name and having it witnessed. The designation bears no date. It may have been that he was then contemplating his second marriage, or if married, that he was expecting the birth of the child, with which his wife was enceinte at the time of his death, and he forebore to complete the designation in the mode prescribed by the company, reserving to himself the right to modify it, according to circumstances that might arise. But whatever may have been his motive, he left it incomplete, and the mere attempt to make the designa- tion, which was not consummated, could have no effect upon the original contract. The form for the designation of the person to whom the holder might direct the policy to be paid, was evidently prescribed by the company for its own pro- tection ; that upon the death of the holder there might be no question as to the person to whom it was to be paid, and not leave it to the uncertainty of parol evidence. Therefore, the form of designation was prescribed, and it required that it should be signed by the holder, and attested by a witness or witnesses. But in this case, it was not complied with, and the designation having been thus put out of the way, the question arose, can the action be maintained by the ad- ministrator of John W. Nowell, deceased ? We can see no reason why it cannot. The express terms of the contract, as manifested by the certificate, is that the - amount due upon the policy, on the death of the holder, shall be paid to his representative or representatives,- and there is nothing in the charter or by-laws that makes it payable even by implication to any one else; for by the by-law ;above cited, the holder may assign the policy to whomsoever he may choose. There is no provision in the charter or by-laws indicating, as in many other ^corporations of like kind, some of which have been referred to in the argument of the defendants' counsel, that the policies issued by the company shall enure to the benefit of the "widow, children or family" of the insured. The only refer- ence in the charter to "widows and children," is the declaration that one of the objects of the incorporation is for the relief of "loidows and orphans" by voluntary ■contributions. Contributions by whom? It is susceptible of no other construction, than that it means contributions made by the association for the relief of "widows and orphans" "by lightening the burdens of such as are poor, arid abating their priva- tion and suffering,"- Our opinion is, the administrator had the right to maintain the action, but as it is agreed that the fund in controversy is not needed for the payment of the debts of the intestate, and when received must go in distribution among the next of kin, who are the defendants and the plaintiffs other than the administrator, Ala.] ASHUEST v. THE SfATE OF ALABAMA. 7 and in as much as the fund is in the possession of the defendants, the adminis- trator should have judgment only for two-fifthe thereof, the shares going to the two plaintiffs or next of kin of the deceased, and the defendants shall be allowed to retain their shares, to-wit, three-flfths of the fund, for as was said in Baker v. Bmlroad, 91 N. C, 308, "there is no reason why it should be required to be paid, when it must he returned ;" and see Eogera\. Chestnut, 92 N. C, 81. Our opinion is, there was error in the judgment of the superior court, and the plaintiff Nowell, as administrator, is entitled to judgment as indicated in this opinion. Let this be certified to the superior court of Chowan, that the case may be disposed of in conformity to this opinion. Error. Reversed. SUPREME COURT OF ALABAMA. AsHURST V. The State of Alabama. Filed , 1886. 1. Latts— Taking Effect upon Contingencies Where an act incorporating a manufacturing company provided tlxat if any person should sell liquors within four miles of the factory, such person should be subject to indictment, etc.: Held, that the law went into operation as soon as the corporation begun business. 2. Repeal by Implication not Favoeed. Held, further, that the sale of the property to another corporation which continued the same business at the same place did not repeal the law. Eepeals by implication are not favored. Appeal from Tallapoosa circuit court: Tlie indictment in this case was found at the fall term, 1885, of the circuit court of Tallapoosa county. At the trial at said term trial was had upon the plea of "not guilty," and resulted in the conviction of defendant, from which judgment this appeal is prosecuted. The evidence as set forth in the bill of exceptions tended to show that the defendant sold spirituous liquors to sundry persons within twelve months before the finding of the indictment, and within four miles of a certain building known as the Tallapoosa Factory. There was introduced in evidence "an act to incor- porate the Tallapoosa Manufacturing Company, Number One," approved Janu- ary 29, 1852, section 4 of which is as follows; "Sec. 4. Be it further enactedf. That if any person or persons shall sell ardent, spirituous or intoxicating liquors^- within four miles of the factories of said corporation, by the retail or otherwise, . such person or persons shall be subject to indictment in the circuit court of the county in which such selling or retailing was done, and be liable to all the pains and penalties then in force against retailing without license." » * « ThebilK of exceptions further states that prior to the passage of said act there had been for many years a cotton factory, called the Tallassee Factory, located at the point, where the building is now located; that the owner of said property, soon after- the passage of said act, conveyed it to the Tallassee Manufacturing Oompanyv No. 1, and the land and property attached, which, together with the other build- ings erected, have been since and are now used to manufacture cotton goods, and called the Tallassee Factory. The said corporation continued in business until 1874; in 1876 the property was sold under a decree of the chancery court, and the purchasers thereof organized under the general incorporation laws of the state, under the name of "The Tallassee Falls Manufacturing Company," to whom 8 GULF EEPORTER. : [Ala. all said property wasxonveyed, and , that the latter company are now, and have been since said date, ,doi:5ig business at said^place. The defendant iatroduced in evidence a license, in all respe(?t9 regular, and as required by the, revenue laws^ of the state, authorizing him to, retail liquors of the kind sold at said place. The court charged the jury, at the request in writing of the state, that if they be- lievecl the evidence, tq find the defendant guilty; and an exception was reserved to the giving of said charge. Sumter & Blakey, for appellant. Hon. T. N. MQClellcmd, contra. SoMERViLLB, J. The defendant was indicted for selling spirituous liquors without license and contrary to law. He justified under a license which the court, in effect, pronounced to be void, because of the existence of a prohibitory liquor law, which, in the opinion of the court, was of force within four miles of the factory of the Talla= see Falls Manufacturing Company. It is our opinion that this ruling of the court was free from error. The prohibitory law in question derived its origin and force from an act of the legislature, approved January 29, 1852, entitled "An act to incorporate the Tallassee Manufacturing Company, Number One," which may be found in the session acts of 1851-52, pp. 262-264. It was enacted in section 4 of this law, that "if any person or persons shall sell ardent, spirituous, or intoxicating liquors within four miles of the factories of said corporation, by the retail or otherwise, such person or persons shall be subject to indictment in the circuit court of the county in which such selling or retailing was done, and be liable to' all the pains and penalties then in force against retailing without license." The case presented, in the first instance, is the familiar one of a law enacted by the legislative department of the government, which was to take efiect upon a contingency. This contingency was, by necessary implication, the corporate organization of and commencement of business by the company, evidenced by the construction and operation of a factory or factories. When this event trans- pired, the law was immediately put in force, and was as valid as if the legislature had expressly prohibited the sale of spirituous liquors within four miles of the place ■where these factories were located. It became at once a fixed rule of conduct, prescribed by the supreme power of the state, and operating upon all persons with- in the locality. How could its operation be suspended or destroyed except by a new act repealing it, or by its expiration from some fact which limits its contin- ued existence as a law of the land. It is not contended that the act has been srepealed either expressly or by any repugnant statute. The only contention is, that it has ceased to operate because the property of the corporation in question ■was sold out, under the decree of the chancery court, and purchased by private persons, who have organized another corporation, which contiaues the same business in the same locality under the name of the Tallassee Falls Manufactur- ing Company. This repeal thus contended for is one by implication, which is not favored by the law. The argument for it is based on the idea that the law was a chartered privilege of the dissolved corporation, and did not attach to the locaUty after its dissolution. We see nothing to justify this construction. The reason for continuance of the law is just as great after the old company ceased to exist as before, in view of the fact that its purpose was to protect the owners and employes of a factory against the evils incident to the sale of intoxicating liquors, and the same kind of business has been continued in the same place by the owners of the same property. The charge of the court being free from error, the judgment is aflirmed. Clopton, J., not sitting. LEGAL DIRECTORY. For the convenience of subscribers, and the business com- munity in general, we will publish a list of Attorneys, inserting one line cards, in either of the Reporters, one year for $2,00. This feature will be duly appreciated by subscribers, as it will afford a ready medium for the collection of claims, that has not heretofore existed. Owing to the extended circulation of our publication, both north and south, no better opportunity is afforded members of the legal profession, to increase their business. 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