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very efficient means would be that which they adopted, for if persons who rent furnished rooms for lodging in a city like Greenville are permitted, with impunity, to use their rooms as places for gaming, the vice would flourish, even if every public gaming house in the city were entirely suppressed. We are satisfied, therefore, that appellant's first position cannot be sustained.

strued as contended for by appellant, and the municipal legislation here in question, can both stand together, and there is no conflict whatever. The utmost that can be said is that the municipal corporation, under the authority vested in it by its charter, has seen fit to make an act done within the corporate limits a criminal offense, which the legislature has not seen fit to constitute such an offense. Indeed, it is well settled in this The second point made by counsel for ap state, at least, that the same act may be made pellant is thus stated in his argument: an offense both against the state and the "Even if the ordinance is valid, the defendmunicipal law. As that great jurist, Judge ant is not guilty of the offense charged." This Cooley, expresses it in his work on Constitu- point, as developed by the argument, seems tional Limitations, at page 199 of the sec- to rest, first, upon the theory that the charge ond edition: "Indeed, the same act may made against defendant was “keeping a gam constitute an offense both against the state bling house," which, as we have shown above, and the municipal corporation, and both was not the charge made against the defend may punish it without violation of any con- ant, and therefore more need not be said as stitutional principle." And in a note he says, to that. The real ground, however, upen "Such is the clear weight of authority, which this second point made by appellant though the decisions are not uniform," and seems to rest, is that the room which it is proceeds to cite the cases. In one of the alleged the defendant permitted other per cases which he cites (Rogers v. Jones, 1 sons to use as a place for gaming was reWend. 261), we find the following language, ther his "inclosure" nor "place," nor "house," which is so appropriate to the case in hand and, as the ordinance used those terms in dethat we quote it: "If the legislature have scribing the offense denounced, he could not passed a law regulating as to certain things legally be convicted. This is quite technical, in a city, I apprehend the corporation are but still defendant has a right to make the not thereby restricted from making further point, and it must be considered. But the regulations." To the authorities cited by question is whether the point is well taken. this distinguished author we may add the We do not think so, for two reasons: case of Cross v. North Carolina, 132 U. S. The room which defendant rented and oe132, 33 L. ed. 287, 10 Sup. Ct. Rep. 47, es- cupied was certainly his "place" as long as pecially at page 139, 132 U. S. page 290, 33 he continued to occupy it. He could lawfulL. ed., and page 49, 10 Sup. Ct. Rep. decidedly forbid any person who was objectionable since Judge Cooley wrote. This doctrine has been expressly recognized and approved in this state (see State ex rel. Burton v. Wil liams, 11 S. C. 288, and the cases therein cited), and has again been approved in the comparatively recent case of Anderson v. O'Donnell, 29 S. C. 368, 369, 1 L. R. A. 636, 637, 7 S. E. 528, 529. If this be so, then it is clear that even though the legislature may have passed a statute in reference to the offense against the state of gaming, the municipal corporation of Greenville is not thereby restricted from making further regulations no operation except within the corporate upon the same subject, which of course, have

limits of Greenville. See also the cases of

Heisembrittle v. Charleston, 2 McMull. L. 233; Charleston v. Ahrens, 4 Strobh. L. 241. The case of State ex rel. Heise v. Columbia, 6 Rich. L. 404, cited by counsel for appellant, has no application to this case. There the

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to him from entering his room or "place" of abode. Even his landlord had no right to enter upon it without the consent of the tenant, except under circumstances not neces sary to be stated here. It was his castle, as much as the poor man's hut in the wilder

ness.

But (2) we have very high authority for saying that the room was his "house" See 2 Bishop, Crim. Law, §§ 107, 108. And as was said by O'Neall, J., in State v. M'Dow ell, Dud. L. at page 347, in speaking of bawdy houses: "Without concert between the offenses are just as distinct as when they defendants occupying different rooms for purposes of prostitution in a lodging house, occupy different houses; for, in the case sup posed, each room is a bawdy house and its not therefore be sustained. inmate the keeper." The second point can

The third and last point made is that the case turned upon the fact that the town certainly was within the limits prescribed fine imposed "was excessive and unjust." It council had no power, under its charter, to both by the charter and the ordinance, and impose a forfeiture as a penalty for a viola- therefore there was no error of law in impo tion of its ordinances. Here, however, the ing a fine within those limits. This be city council of Greenville are expressly inso, the amount of the fine was a matter exvested by its charter with the power to pass clusively within the discretion of the mayor,

such ordinances as shall appear to them nec

and in his return he gives a very good reason essary for securing the peace and good gov- for going to the limit of the law in this inernment of the said city; and, if we were at stance, as he had found that the imposition liberty to inquire into the propriety of the of a smaller fine had proved to be ineffica

means which they saw fit to adopt to suppress the pernicious vice of gaming, we

cious in suppressing the evil.

The judgment of this court is that the or I would be inclined to agree with them that der or judgment of the Circuit Court be af

in order to effect the laudable purpose a

firmed.

TENNESSEE SUPREME COURT.

ILLINOIS CENTRAL RAILROAD COM- | deduct for the penalty.
PANY, Plff. in Err.,

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2. A stipulation in a through bill of lading, limiting liability for loss or damage to that line on which it should occur,

will not relieve the initial carrier from liability for delay on another line, where this was caused by a negligent misdirection in the waybill made out by the initial carrier. 3. Interest on the amount of damages recovered against a carrier for delay in delivering goods will not be allowed. 4. The costs of an borne

appeal must be

where

appellant, by the he brought the whole case to the supreme court for review, and was unsuccessful as to everything except a small item of interest, although he obtained a decision for reversal on a remittitur account of that item, unless should be entered therefor.

(May 21, 1900.)

ERROR to the Circuit Court for Madison County to review a judgment in favor of plaintiff in an action brought to recover damages for loss alleged to have occurred because of defendant's failure to promptly deliver property placed in its possession for transportation. Affirmed.

The facts are stated in the opinion.

Mr. C. G. Bond, for plaintiff in error: The measure of damages for failure to ship and deliver goods at the place of des

tination within a reasonable time is the depreciation of the market value of the goods at the place of destination between the date when they should have been, and when they were in fact, delivered.

The notice of the penalty must be full,--the character of the same, and when delivery is to be made.

A local railroad agent has no power to make a special agreement extending the liability of his company beyond its own line, unless it has been expressly conferred upon him, or is implied from the course of busi

ness.

Hutchinson, Carr. § 152A; Page v. Chicago, St. P. M. & O. R. Co. 7 S. D. 297, 64 N. W. 137; Grover & Baker Sewing Mach. Co. v. Missouri P. R. Co. 70 Mo. 672, 35 Am. Rep. 444; Burroughs v. Norwich & W. R. Co. 100 Mass. 26, 1 Am. Rep. 78; Hoffman v. Cumberland Valley R. Co. 85 Md. 391, 37 Atl. 214; 1 Wood, Railroads, § 508; 4 Elliott, Railroads, § 1437.

Messrs. Hays & Biggs, for defendant in error:

Where carriers unite to complete a line of transportation, and receive goods for one freight, and give a through bill of lading, each such carrier is the agent of all the others to accomplish the carriage and delivery of the goods, and is liable for any damage to them, on whatever part of the line the damage is received.

2 Rapalje & Mack's Digest of Railway Law, § 541, p. 200; Texas & P. R. Co. v. Fort, 1 Tex. App. Civ. Cas. (White & W.), § 1252, p. 722; Harp v. The Grand Era, 1 Woods, 184, Fed. Cas. No. 6,084.

The person entitled to damages for such loss or injury may at his election sue either

one or all of such lines.

Gulf, C. & S. F. R. Co. v. Golding, 3 Tex. App. Civ. Cas. (Willson) § 33, p. 60; Rice V. Indianapolis & St. L. R. Co. 3 Mo. App. 27; 2 Rapalje & Mack's Digest of Railway Law, § 545, p. 203.

Each carrier becomes the agent of the others to carry into effect the transportation and delivery of the property.

Missouri P. R. Co. v. Twiss, 35 Neb. 267, 53 N. W. 76.

A common carrier cannot contract against its own negligence or that of its servants, where such negligence has in any degree contributed to such loss.

East Tennessee, V. & G. R. Co. v. Hale, 85 Witting v. St. Louis & S. F. R. Co. 101 Tenn. 69, 1 S. W. 620; Erie Despatch v. Johnson, 87 Tenn. 490, 11 S. W. 441; Mc-Mo. 631, 10 L. R. A. 602, 14 S. W. 743; Donald v. Unaka Timber Co. 88 Tenn. 38, 12 Michigan S. & N. I. R. Co. v. Heaton, 37 Ind. S. W. 420; 2 Rapalje & Mack's Digest of 448, 10 Am. Rep. 89; 2 Rapalje & Mack's DiRailway Law. §§ 757, 758, p. 287; Hutchin-gest of Railway Law, § 455, p. 173; Merson, Carr. § 770.

The law refuses to take into consideration damages remotely resulting from a breach of a carrier's contract or neglect of duty. 3 Rapalje & Mack's Digest of Railway Law, 87, p. 673; Hutchinson, Carr. § 773. If notice was given to the shipping clerk of the railroad that it was a penalty contract, this would not bind the company for the penalty and what the consignee might

chants' Despatch Transp. Co. v. Bloch Bros. 86 Tenn. 392, 6 S. W. 881; Western U. Teleg. Co. v. Munford, 87 Tenn. 190, 2 L. R. A. 601, 10 S. W. 318; Louisville & N. R. Co. v. Wynn, 88 Tenn. 321, 14 S. W. 311; Louisville & N. R. Co. v. Gilbert, 88 Tenn. 430, 7 L. R. A. 162, 12 S. W. 1018; Marr v. Western U. Teleg. Co. 85 Tenn. 529, 3 S. W. 496; Louisville & N. R. Co. v. Sowell, 90 Tenn. 17, 15 S. W. 837; Bird v. Southern R. Co. 99 Tenn. 719, 42 S. W. 451; Coward v. East Tennessee, V. & G. R. Co. 16 Lea, 225, 57

NOTE.-As to measure of carrier's liability for delay in delivery of goods, see note to Dunt-Am. Rep. 227.

ley v. Boston & M. R. Co. (N. H.) 9 L. R. A. on page 451; also Baltimore & O. R. Co. v. O'Donnell (Ohio) 21 L. R. A. 117.

The contract of the Southern Seating & Cabinet Company with W. A. R. Goodwin to

Williams v. Vance, 9 S. C. N. S. 344, 30 Am. Rep. 26, and note; Cockle v. Flack, 93 U. S. 344, 23 L. ed. 949; Wood's Mayne, Damages, 203, note.

Dec. 38.

When goods are forwarded by the carrier in pursuance of a contract of sale between the consignor and the consignee, the contract price furnishes the measure of damages in case of loss or delay.

have the pews in the church by May 3, 1898, | tered into a contract with W. A. R. Goodor forfeit $10 a day for every day they win, rector, to manufacture and put up failed, was a valid and binding contract be- certain pews in St. John's Episcopal Church, tween them, and in law regarded as liqui- at Petersburg, Virginia, for the sum of $524. dated damages. The contract contained a provision that the company "shall forfeit $10 per day for every day it fails to have pews in place after May 6, 1898," but that provision was subsequently so changed as to waive the forfeiture if The contract for the payment of the for- the pews should arrive at Petersburg by the feit or penalty being good between the par- 3d day of the month. The pews were manuties, the carrier, being notified that it was factured, and by the contracting company "a penalty contract" at the time of the de- delivered to the Illinois Central Railroad livery and acceptance of the goods for ship-Company, at Jackson, Tennessee, on the 20th ment, would be liable for the damages sus- of April, 1898, for shipment to the purchastained by its negligence and delay in trans- er, at Petersburg, Virginia. The represenportation. tative of the manufacturing and selling Hutchinson, Carr. § 772; 3 Wood, Rail- company at the time of delivering the pews way Law, 454, p. 1607; Deming v. Grand for transportation said to the railway agent: Trunk R. Co. 45 N. H. 455, 2 Am. Rep. 267; "I wish you would forward this car as quick St. Louis, I. M. & 8. R. Co. v. Mudford, 44 as you can. This is a penalty contract." Ark. 439, 21 Am. & Eng. R. Cas. 139, note;The railway agent expressed assent to the Masterton v. Brooklyn, 7 Hill, 68, 42 Am. request, and promptly executed a bill of lading, properly stating the name of the consignee and the destination of the pews. Nevertheless the car remained in Jackson two days after the issuance of the bill of lading, and, when it left, the waybill, through some inexcusable mistake of the railway agent, called for Parkersburg, West Virginia, as the destination of the pews. The car reached the latter point on the 27th of April, and there remained until the 13th of May, when by direction of the defaulting carrier it was started to Petersburg, Virginia, its true destination, where it arrived on the 21st of May,-twenty-four days later than it would probably have arrived but for the misdirection in the waybill, and eighteen days after the contract limit for arrival of the pews had expired. The purchaser accepted the pews, but in doing so required a deduction of $180 from the contract price, and paid only the balance of $344. He says he deducted that sum, not upon the mere ground that he had the right to do so under the forfeiture clause of the contract, but because he considered it "just compensation" for the inconvenience and expense resulting from the delay, and for the damage done to the pews "in the transportation, and that he would not have received the pews in their damaged condition, and after he had suffered the inconvenience and expense of the

2 Am. & Eng. Enc. Law, p. 907, and note; 3 Sutherland, Damages, p. 228; Adams Exp. Co. v. Egbert, 36 Pac. 360, 78 Am. Dec. 382.

Where the carrier has notice of the special circumstances, either expressly or by the nature of the articles, that make delay or loss of particular moment to the consignee, it is liable to respond in damages for all injury which it may reasonably foresee may

occur.

Baltimore & O. R. Co. v. Humphrey, 59 Md. 390, 9 Am. & Eng. R. Cas. 338, note; Gulf, C. & S. F. R. Co. v. Maetze, 2 Tex. App. Civ. Cas. (Willson) § 631, p. 553, 18 Am. & Eng. R. Cas. 617, note; Cunningham v. Chicago, M. & St. P. R. Co. 5 McCrary, 465, 17 Fed. Rep. 882; Missouri P. R. Co. v. Nevin, 31 Kan. 385, 2 Pac. 975; Norris v. Savannah, F. & W. R. Co. 23 Fla. 182, 1 So. 475.

The carrier's duty is to forward freight without delay and as speedily as possible; and, if it be unnecessarily or negligently delayed or detained by it, it is liable for the loss resulting thereby; and the burden of proof is on the carrier to account for unrea-delay, without that deduction from the conBonable delay in transporting the goods.

Lamont v. Nashville & C. R. Co. 9 Heisk. 58; Taylor Mfg. Co. v. Hatcher, 3 L. R. A. 590, and note, 39 Fed. Rep. 440; Nettles v. South Carolina R. Co. 7 Rich. L. 190, 62 Am. Dec. 409; 4 Elliott, Railroads, §§ 1482, 1483; Michigan, S. & N. I. R. Co. v. Day, 20 Ill. 375, 71 Am. Dec. 278; St. Clair v. Chicago, B. & Q. R. Co. 80 Iowa, 304, 45 N. W. 570.

Caldwell, J., delivered the opinion of the

court:

This is an action of damages by a shipper against a common carrier. On the 26th of February, 1898, the Southern Seating & Cabinet Company, of Jackson, Tennessee, en

tract price. In December, 1898, the Southern Seating & Cabinet Company commenced this action against the Illinois Central Railroad Company before a justice of the peace, whose warrant stated the nature and ground of suit as follows: "For damages caused by the delay in shipping and delivering certain goods consigned by the plaintiff to W. A. R. Goodwin, Petersburg, Va., April 20, 1898, on account of which delay the said goods were damaged, and the plaintiff damaged in the sum of $180, forfeited by it under its contract for the delivery of said goods, of which the defendant had notice." The justice of the peace pronounced judgment in favor of the plaintiff, and the defendant appealed to the circuit court,

where verdict and judgment were rendered | bly be supposed to have been in the contemfor the plaintiff for $180, with interest. plation of both parties at the time they From the latter judgment the railway com- made the contract, as the probable result of pany has appealed in error to this court, and the breach of it. Now, if the special cirhere assigned several objections to the pro- cumstances under which the contract was ceedings below, on account of which a rever- actually made were communicated by the sal and new trial are sought. plaintiffs to the defendants, and thus known In the course of his charge, the trial judge to both parties, the damages resulting from instructed the jury as follows: "If the the breach of such a contract, which they goods were shipped, and it was the fault of would reasonably contemplate, would be the the railroad company in making a misdirec- amount of injury which would ordinarily tion or misshipment that caused the delay follow from a breach of contract under these after the 3d day of May, 1898, and if the special circumstances so known and complaintiff in this case, through its agents and municated. But, on the other hand, if these representatives, notified Mr. Reavis or Col. special circumstances were wholly unknown Dinkins, or both of them, and they were to the party breaking the contract, he, at representatives of the railroad company in the most, could only be supposed to have had receiving and shipping the goods, that it in his contemplation the amount of injury was a forfeit contract,-that it was which would arise generally, and, in the a penalty contract, and they received it great multitude of cases, not affected by any with the knowledge that there was a penalty special circumstances, from such a breach of attached to the contract, then it would have contract." This rule has been adopted in been the duty of the railroad company to cases too numerous to mention at this time. have shipped the goods; and if it accepted It was quoted approvingly by this court in them that way, and was guilty of negligence McDonald v. Unaka Timber Co. 88 Tenn. 43, in not getting them to Petersburg in the 12 S. W. 420. Where property is shipped to time stated in the contract, and it had am- market for general sale to such purchasers as ple time to have done so, then it would be may be obtained, and the carrier unreasonaliable for the damages the plaintiff has sus-bly and negligently delays the transportatained because of the penalty contained in tion, the measure of damages for that dethe contract. Now, the burden of proof is fault is the depreciation in salable quality upon the plaintiff to show that the railroad and market value of the property at the employees did receive the goods for the pur-place of destination between the time when pose of shipping them, had notice of the it should have arrived and when it did in penalty, and it was a penalty contract. If fact arrive. East Tennessee, V. & G. R. Co. it did have notice of the penalty contract, v. Hale, 85 Tenn. 69, 1 S. W. 620; Hutchinand the goods were accepted by it to be son, Carr. § 771; 3 Wood, Railway Law, p. shipped, and it was the fault of the railroad 1607. But, if the property is sold at an adcompany that they were not delivered by vantageous price before shipment on condithat date, to wit, the 3d day of May, 1898, tion that it be delivered within a certain the railroad company would be responsible time, and the carrier, with knowledge of for the penalty of the contract, for the time that fact, undertakes the transportation, the goods were not delivered, if the delay and through negligence fails to make the dewas caused by the fault of the railroad com-livery in time, and the conditional purchaspany." The first assignment of error is di- er declines to receive the property on acrected against that instruction; the point of count of the delay, the liability of the car. objection being that it makes the loss sus-rier is measured by the difference between tained by the plaintiff under the penalty the market value of the property when it arclause of its contract with Goodwin, and not rived at the place of destination and the the actual injury and depreciation of the price at which it was conditionally sold bepews by the delay, the measure of the de- fore shipment. Deming v. Grand Trunk R. fendant's liability. Compensation is the Co. 48 N. H. 455, 2 Am. Rep. 267; Hutchinprimary principle underlying the law of son, Carr. § 772. The difference between the damages; and, where one of two contracting modes of measuring the carrier's liability in parties breaches his obligation, he is ordin- the two cases is due to the difference bearily liable to the other party, according to tween its obligations and the consequences the nature and purpose of the contract, for of their breach. In the former case the oball loss suffered by him as the natural con- ligation is general, and the loss and liabilisequence of the breach. In the case of Had- ty are general, while in the latter case the obley v. Baxendale, 9 Exch. 341, where a car-ligation is special, and the loss and liabilirier was sued in damages for negligent delay ty are special. Referring to the carrier's rein the transportation of a mill shaft, the sponsibility for the breach of a special concourt, referring to the rule for the admeas-tract by delay, a distinguished author has urement of damages, said: "Where two said: "But if the intended use and applicaparties have made a contract, which one of tion of the goods to be carried was expressthem has broken, the damages which they brought to the notice of the company's other party ought to receive in respect of servants at the time they received them, or such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasona

could be reasonably inferred from circumstances known to them, so that the special use or application might be fairly considered to be within the contemplation of both parties to the contract, the consignor is entitled

to recover the damages naturally resulting|tion; and such sum, when reasonable (that from his so being unable to use or apply the is, not excessive), is generally, if not univergoods, since both parties may be said to have sally, held to be recoverable as liquidated made this the basis of the contract." 3 damages, if there be a breach. Clark, Wood, Railway Law, p. 1607. Contr. 600, note; Williams v. Vance (S. C.) 30 Am. Rep. 31, 32, 35, note. The enforcement of such a rule against the carrier with full_notice cannot operate as a hardship upon him, because the sum stipulated by the consignor and consignee must be reasonable, to be enforceable between them; and, for the same reason, it must be so before it can be made the measure of responsibility on the part of the carrier. If it be unreasonable or excessive, the stipulation, however named, is a penalty, and only actual damages, to be ascertained in the ordinary way, can be recovered. "According to the better opinion, the parties, even if they intended to fix upon the amount stipulated as liquidated damages, will nevertheless be limited to the recovery of actual damages, if the amount stipulated for is so greatly in excess of the actual damages that it is in effect a penalty." Clark, Contr. 601; 2 Story, Eq. Jur. § 1318; Baird v. Tolliver, 6 Humph. 187, 44 Am. Dec. 298; 3 Parsons, Contr. 157, 161; Wood's Mayne, Damages, 203, note.

The contract, breached by the defendant, now before the court, was undoubtedly a special one. The pews in question were manufactured after a peculiar design, for a particular church, under a particular contract, of which the defendant was distinctly notified at the time it accepted them for carriage. The contract of carriage being special, the liability for its nonobservance was likewise special, and the plaintiff was entitled to recover all damages naturally resulting from the breach, whatever the amount may have been. The trial judge, in that portion of the charge heretofore quoted, instructed the jury, in substance, that the proper measure of the plaintiff's recovery, if any should be allowed, would be the penalty of its contract with the consignee for the period the pews were delayed beyond the time therein stipulated as the required date of delivery, which, the record shows, amounted to $180, the sum actually deducted by the consignee from the purchase price of the pews. That was certainly the amount of the plaintiff's real loss, and, in view of the notice given at the time of the shipment, it may fairly and reasonably be assumed to be the exact extent of the injury which the plaintiff and the defendant contemplated as the natural result of so long a delay in the delivery of the pews, and therefore the true measure of damages recoverable for the breach. In opposition to this view, it might be said with force and plausibility that what is denominated the "penalty clause" of the plaintiff's contract of sale was against public policy, and therefore not enforceable, and that for that reason the carrier, though fully informed of that feature of the contract, would not be legally responsible for the deduction made and permitted thereunder; but that suggestion, if made, could not prevail in the end, for while contractual penalties, as such, are now rarely enforceable either in law or equity, provisions like that in this contract, whatever called by the parties, when deemed reasonable, as this one must be, are by the courts treated and enforced as stipulations for liquidated damages. If the contract is for a matter of uncertain value, and a reasonable sum is fixed by the parties as the amount to be paid on breach, that sum, though actually called a "penalty" in the instrument, is recoverable as liquidated damages if the obligation be not in fact performed. Clark, Contr. 600, 601; 1 Pom. Eq. Jur. § 440; Tennessee Mfg. Co. v. James, 91 Tenn. 154, 15 L. R. A. 211, 18 S. W. 262; Kemble v. Farren, 6 Bing. 147; Jaquith v. Hudson, 5 Mich. 123; King Iron Bridge & Mfg. Co. v. St. Louis (C. C. E. D. Mo.) 10 L. R. A. 826 et seq., note; 3 Parsons, Contr. 156, 157. It is not uncommon, in building contracts, to which class this one belongs, for the contractor to bind himself to pay a stipulated daily or weekly sum for delay beyond the time appointed for comple

The Illinois Central Railroad Company, as initial carrier, issued a through bill of lading for the pews, and routed them over its own line to Louisville, Kentucky, and thence over that of the Chesapeake, Ohio & Southwestern Railroad Company, as ultimate carrier, to Petersburg, Virginia. In the bill of lading it limited liability for loss or damage to that line on which it should occur; but that limitation, though valid in law (Bird v. Southern R. Co. 99 Tenn. 719, 42 S. W. 451), is of no avail in this case, because the injury complained of unquestionably resulted from the negligent misdirection in the waybill made out by the initial carrier before the goods were started upon their journey. The ultimate carrier delivered the goods at the destination for which they were billed in ample time to meet the terms of the contract between the consignor and consignee; but that was not the true destination, and hence not a compliance with the shipping contract. It may be, as suggested in argument, and as implied from special instructions requested by the initial carrier and refused by the trial judge, that the ultimate carrier received notice of the misdirection in time to have sent the goods from Parkersburg, West Virginia, to Petersburg, Virginia, sooner than it did, and thereby to have prevented some of the loss to the consignor; yet, if that were established as a fact, it would at most, only fix joint liability upon the ultimate carrier, and would not lessen the liability of the initial carrier for the consequences of its negligence. No limitation can have the effect of relieving a carrier from responsibility for its own negligence. Bird v. Southern R. Co. 99 Tenn. 721, 42 S. W. 451, and citations.

The court below peremptorily instructed the jury to allow interest on whatever amount the plaintiff should be found entitled to recover as damages, and the jury ac

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