The opinion
On Motion for Rehearing.
[5] Renewing their contention that the provision in the contract covering the shipment requiring them within four months after the delivery of the cotton to present to the carrier in writing their claim for “loss, damage or delay” was void by force of the Carmack amendment, appellants say:
“It was very plainly held, we think, in the Harriman Case, the liability imposed upon the carrier by the Carmack amendment to the Hepburn act is the liability imposed by the common law upon a common carrier. The Carmack amendment provides that this liability shall not be limited by contract. If to give effect to the stipulation in the bill of lading before us would be to permit the carrier to limit its common-law liability for negligence, the stipulation ought not to be given effect, because to give it effect would be to repeal the Carmack amendment.”
The argument indicates, we think, that appellants misapprehend the purpose and effect of the Carmack amendment and the effect of decisions of the federal courts construing it. The liability imposed by the amendment upon the initial carrier was liability “for any loss, damage or injury” to property received by it for carriage caused by its connecting carriers. In other words, the purpose and effect of the amendment was, not to impose upon the initial carrier a liability for its own conduct different from or greater than that imposed upon it by the common law, but to impose upon it in favor of the shipper the liability to him under the common law incurred by its connecting carriers. Therefore what was said by the federal Supreme Court in Southern Express Co. v. Caldwell, cited in the opinion, is as applicable to this case, notwithstanding the Carmack amendment, as it would be had that amendment never been enacted.
Appellants vigorously insist that we erred in holding (because the time necessarily consumed in having the cotton compressed at Pine Bluff, and the time when it reached New York, was not shown) that the testimony did not authorize a finding that the shipment was negligently delayed. In support of the contention it is argued:
[6] 1. That “the law in Texas is that a railroad cannot leave cotton at a compress longer than five days.”
Appellants do not cite us to, and we have not been able to find, any such a law. They probably had in mind a regulation of the Railroad Commission of Texas. State v. Railway Co., 31 Tex. Civ. App. 219 , 71 S. W. 994 . If they did, and thought it applicable to an interstate shipment originating in the state of Arkansas, as the one in question was, as a basis for the contention made here they should have offered the regulation as evidence.
[7] 2. That the compress company was not their agent, but appellee’s, and therefore that it did not devolve on them to show the time reasonably necessary to be consumed in compressing the cotton.
What was said in the opinion with reference to this phase of the ease was based upon a telegram sent by appellants to appellee’s freight agent at Little Rock, before the cotton was delivered to it at Stephens, as follows:
“Shipping 475 bales cotton from Stephens, Ark., to New York to deliver on July. Will you wire trace to destination? Don’t stop at any press not running. Must reach New York fifteenth.”
And a reply as follows:
“Will trace Stephens to New York cotton and give best possible service and arrange prompt compression at Pine Bluff, which press will understand necessity for quick sendee.”
We thought the telegram indicated an understanding between the parties that the cotton was to be compressed'at Pine Bluff, and therefore that appellants should be held to have contemplated and authorized the delay in the transportation thereof necessary to *814 compress it. We thought, and think, it devolved on appellants, in establishing their charge of negligence on the part of appellee, to show that the delay in the transportation of the cotton to its destination was not due to delay they had authorized for the purpose of compressing the cotton.
[8] 3. That it was appellee’s duty not only to transport the cotton to its destination, but to deliver it to the consignees there within a reasonable time; and, the time when the cotton was delivered to the consignees being shown, that it therefore was of no importance that the testimony did not show when it was that the cotton reached its destination.
[9] In several states it is held that the carrier has discharged its duty as such when it has transported the goods to the place they were destined to, that it is the duty of the consignee to be there to receive them, and that the liability of the carrier after so transporting them, even without notice to the consignee of the arrival of the goods, is that of a warehouseman only. 2 Hutch, on Carriers, §§ 702 and 711. In New York, however, the rule is otherwise. 2 Hutch, on Carriers, § 708. There the carrier is charged with the duty of notifying the consignee of the arrival of the goods. We are of opinion therefore that appellants’ contention, that in the absence of proof by appellee that the consignees, having been notified by it of the arrival of the cotton at its destination, there-afterward neglected to apply for and receive same, it was of no importance that the testimony did not show the time when the cotton reached New York, should be sustained. But if sustaining it required us to hold that the testimony was sufficient to show a negligent delay in the transportation of the cotton, we nevertheless would overrule the motion, because it does not appear from the record before us that the delay resulted in any injury to appellants. On the contrary, the testimony indicates that the cotton was worth more on the market in New York when it reached that place than it would have been worth had it reached there at the time appellants contend it should have been delivered to their consignees there.
[10] Appellant Stevens testified:
“In July and August, 1910, there was a heavy advance in the cotton market. In the latter part of June it was selling at around 152 5/100 cents per pound, .and the latter part of July it was selling at about 16 cents per pound.”
Tire theory upon which appellants sought a recovery because of the delay complained of was that they had sold a part (what part not shown) of the cotton at approximately 15% cents per pound, to be delivered in July, and to comply with their contracts had been compelled because of the delay to buy other cotton to deliver to the purchasers in lieu of it at approximately 15°<¡/:ioo cents per pound. It is obvious, we think, that they were not entitled to recover on such a theory without, showing that the cotton in question was worth less on the market when it reached New York than the price they had to pay for cotton to use in its stead in complying with their contracts. If the cotton they had shipped to New York was worth on the market when it was delivered to their consignees there as much or more than the cotton they purchased to enable them to conrply with their contracts, they suffered no loss because of the delay complained of.
The motion is overruled.