Page:Federal Reporter, 1st Series, Volume 9.djvu/826

FBEBIDENT^ ETC., Of INS. CO. NOfiXH AMISF.IGA V. ST. L., ETC., BY. 00. 811 �President and DiREnT0K3 of the Insukvxce Company of North Amjsbica V. Sx. Louxs, Ibon Mountain & douihern Ey. Co. �Same V. Same. �Same V. Same. �(Circuit Court, E. D. Missouri. January, 1882.) �1. CoMMON Oaeeibk— BiiiL op Lading—Nbgligence. �A provision in a bill of lading, issued by a common carrier, to the effect that the carrier shall not be liable for loss by fire, will not exempt it from liability for a loss by flre occurring through its negligence. �2. Samb— Kegligence. �Where a common carrier undertakes to transport cotton for hire npon open flat cars, it is bound to take all needful precautions for the cottou's safety and protection. �3. Same — Same— MEAsimB oi' Damages. �Where cotton In course of transportation by a common carrier was destroyed by flre in consequence of the carrier' s gross negligence, and the owners assigned and transferred their interest in said cotton and their rights against said carrier to a flre insurance company, by which the cotton was insured, upon its indom- nifying them for the loss sustained, held, that tho insurance company v/as en- titled, as against the carrier, to the value of the cotton at the time of the lossi vrith 6 per cent. Interest from the day upon which the cotton would probably have been delivered to the owners if it had not been destroyed. �The facts alleged in the petitions in the above entitled cases are, 80 far as it is thought necessary to set them eut bere, substantialiy as follows : �Certain baies of cotton, owned by different parties in each case, were lost while in the custody of the defendant, a common carrier, and while being transported by it for hire. �At the time of the loss the cotton was covered by certain policies of insur- ance issued by the plaintifif, and upon its paying certain sums to the owners of the cotton they assigned all their rights, titles, and interests in, to, and con- cerning it to said company. The owners of the cotton are alleged in said petitions to have been damaged in certain speoified sums, and the insurance company asked judgment for the amount of damages sustained by them. �The answers deny the facts alleged in the petitions, and allege that the losses complained of occurred from lire, without negligence on the part of the defendant, and that it was expressly stipulated and agreed by the ship- pers of the cotton that the defendant should not be liable as a common carrier or otherwise for loss or damages caused by fire. �In the replies the aflirmative allegations in the answers are denied, and gross negligence on the defendant's part is alleged. �A jury was waived and the three cases were tried together by the court sit- ting as a jury. ��� �