Atlantic Coast Line Railroad v. Powell

61 S.E. 1111, 131 Ga. 75, 1908 Ga. LEXIS 23

Opinion

Evans, P. J.

(After stating the facts.)

1. The petition contained two counts. The first was predicated upon the Civil Code, §2298, seeking a recovery against the defendant as the last connecting carrier receiving the goods as in good order. From the agreed statement of facts it appears that the defendant, as a connecting carrier, received two cars containing cotton from the initial carrier, and gave its receipt for the freight as in apparent good order. At the time the ears were turned over to the defendant they were in good condition, the seals were unbroken, and there was no indication that they had been tampered with; and there was no way to enter the car without injuring the seals. When the defendant broke the seals for the purpose of delivering the cotton, it was ascertained that, one bale was missing. These facts overcome the presumption raised by section 2299 against the carrier who executed his receipt for the goods as having been received in good order, and can lead to no other conclusion but that there had been an error in counting the bales of cotton when loading the cars, and that in point of fact the bale of cotton, the value of which was sought to be «recovered, was not in the car at the time the car was delivered to the defendant by the initial carrier.

2-5. The other count was based upon the Civil Code, §§2317, 2318: These sections are as follows: §2317. “When any freight that has been shipped, to be conveyed by two or more common carriers to its destination, where, under the contract of shipment or by law, the responsibility of each or either shall cease upon delivery to the next “in good order,” has been lost, damaged, or destroyed, it shall be the duty of the initial or any connecting carrier, upon application by the shipper, consignee, or their assigns, within thirty days after application, to trace said freight and inform said applicant, in writing, when, where, how and by which carrier said freight was lost, damaged, or destroyed, and the names of the parties and their official position, if any, by whom the truth of facts set out in said information can be established.” §2318. “If the carrier to which application is made shall fail to trace said freight and give said information, in writing, within the time prescribed, then said carrier shall be liable for the value of the freight lost, damaged, or destroyed, in the same manner and to the same extent as if said loss, damage, or destruction occurred on its line.” The defense is twofold: first, that under the agreed statement of facts these sections were not applicable to the case as made by the record; and second, if they were applicable, the facts- show a compliance on the part of the defendant with the statute. Section 2317 applies only to a case where freight has been shipped to be conveyed by two or more common carriers to. its destination, where, under the contract of shipment or by law, the responsibility of each carrier is to cease upon delivery to the next carrier “in good order.” As was said in Central of Ga. Ry. Co. v. Murphey, 116 Ga. 863 (43 S. E. 265, 60 L. R. A. 817), “The statute is nothing more or less than a legislative declaration that where a railroad company in its own interest, to secure business, makes a contract to transport goods beyond its own terminus and limits its liability to loss or damage upon its own line, in the interest of those who deal with the company, who come in contact with it as a public carrier, in the interest of shippers, that is, in the interest of the public, the railroad company making such a contract shall, when the goods are lost or damaged in transit, be required to furnish to the shipper such information as that he may make a legal demand upon those who are responsible for the loss or damage.” It therefore becomes necessary to determine whether the cotton was shipped on a through contract of carriage.

The liability of a carrier who receives goods marked to a destination beyond its own line is that if the goods are accepted by the carrier, marked to a destination beyond the carrier’s line, and there is no other contract than such as is to be implied from the acceptance of the goods for carriage, the initial carrier is liable for the loss of the goods or injury to them in the hands of the connecting carrier. Mosher v. Sou. Ex. Co., 38 Ga. 37; Sou. Ex. Co. v. Shea, 38 Ga. 519; Cohen v. Sou. Ex. Co., 45 Ga. 148; Sou. Ex. Co. v. Palmer, 48 Ga. 92; Falvey v. Ga. R., 76 Ga. 597 (2 Am. St. R. 58); E. T., V. & G. Ry. Co. v. Johnson, 85 Ga. 497 (11 S. E. 809). This is the rule -which was adopted in Muschamp v. L. & P. J. R. Co., 8 M. & W. 421, where it was held that when a common carrier receives goods to be transported beyond the terminus of its own line, it undertakes to transport them to the point of destination, either by itself or competent agents, and if the goods are lost beyond the terminus of its own line, it will be liable therefor. We are aware that the current of American authority repudiates this rule, and holds that the liability of the first carrier, in the absence of any contract to the contrary, terminates when it transports the goods to the end of its line of carriage and delivers them to a connecting carrier to be taken to their destination. But this court is committed by several decisions to the rule announced by the English Court of Exchequer in the Muschamp case, and such is the law of this State. It may be urged that the contract of carriage, as evidenced by the bill of lading, limits the receiving carrier’s contractual obligation to carry the cotton only to the terminus of its own line, and there deliver it to a connecting carrier to be transported over the balance of the route to destination. It will be noted that the initial carrier in its bill of lading acknowledged receipt of the cotton, “which said carrier agrees to carry to said destination) if on its own road, or otherwise to deliver to another carrier on the route to said destination.” But this stipulation must be considered in connection with the other provisions of the bill of lading; and if that instrument discloses the real contract to be to carry the goods throughout the whole route, 'it will not be limited by the use of a form of expression which would seem intended to impose upon it only the obligation to deliver to a connecting carrier at the termination of its own route. In the bill of lading the initial carrier stipulated for an integral sum — a speciaj price — for the service of transportation to the ultimate destination of the cotton, which was beyond its own route, and known to be so when it issued its bill of lading. It also stipulated in Article 10 that it signed the bill of lading for the different carriers who may engage in the transportation, each of which was to be bound by and have the benefits of the provisions thereof. These stipulations inserted in the bill of lading evince an intention by the initial carrier that the whole service of transportation was to be governed by the terms of its contract. The receiving carrier purports to act in behalf of every carrier who is expected to en gage in the transportation of the cotton to Savannah. It is true that the connecting carrier would not be bound by the receiving carrier’s stipulation unless it assented to or ratified the contract Goodin v. Sou. Ry. Co., 125 Ga. 630 (54 S. E. 720, 6 L. R. A. (N. S.) 1054); Ga. R. Co. v. Murrah, 85 Ga. 347 (11 S. E. 779). But in the agreed statement of facts it is admitted that the defendant, a' the connecting carrier, accepted the cars at the terminus of the in itial carrier’s route, and transported the cars under the oontracl of shipment or bill of lading issued to the shipper by the first carrier. The authority, therefore, of the initial carrier to contract for a through shipment must be conceded as established. In the light of the contract and the admission of fact, no other conclusion can be drawn from the transaction between the shipper and the first carrier than that he obligated himself to carry the cotton through to destination for an integral sum, and attempted to impose upon the shipper certain conditions, one of which is contained in Article 3, that no carrier engaged in the service of transportation shall be liable for loss or damage not occurring on its own portion of the route. See Seaboard Air-Line Ry. v. Friedman, 128 Ga. 316 (57 S. E. 778). A carrier which undertakes to transport goods beyond its own route may limit its liability to its own line by contract; but it can not limit its liability by a stipulation in the bill of lading unless assented to by the 'shipper. Central B. Co. v. Hasselkus, 91 Ga. 382 (17 S. E. 838, 44 Am. St. R. 37). In the Cohen case, supra, the receiving carrier gave its receipt as follows: “Beceived of H. B. C. & Co. one case . . value . . Marked Cohen & Menko, Atlanta, Ga. which it is mutually agreed is to be forwarded to our agency nearest or most convenient to destination only, and there delivered to other parties to complete the transportation,” followed by a stipulation that it was not responsible for the negligence or non-performance of its connections; and the court held that this was a through contract of shipment, and, as the shipper did not assent to the stipulation of exemption of liability beyond the initial carrier’s line, the receiving carrier was responsible for the loss of the goods occurring beyond its own line, while in the possession of the connecting carrier. There b»ing, therefore, no contract between the plaintiff and the initial carrier, limiting its responsibility upon the delivery of the goods “in good, order” to the connecting carrier, and no such limitation aris ing by operation of law, the Civil Code, §2317, is not applicable so as to require a connecting carrier to respond to the application of the shipper or his assignees to trace the freight, and inform the applicant, in writing, when, where, how, and by which carrier the freight was lost, damaged, or destroyed, and the names of the parties, their 'official position, if any, by whom the truth of the facts set out in the information can be established. Being under no duty to furnish this information, the defendant is not liable for the penalty prescribed in section 2318.

Judgment reversed.

All the Justices concur.