Eckles v. Missouri Pacific Railway Co.

87 S.W. 99, 112 Mo. App. 240, 1905 Mo. App. LEXIS 120

• Court: Missouri Court of Appeals
• Decided: April 18, 1905
• Status: Published

Opinion

BLAND, P. J.

(after stating the facts). — 1. The evidence shows that defendant’s agent solicited the ship-■meat of the goods from Swift & Company, named the ■routing and the through rate and furnished Swift & Company’s agent with a blank printed form of contract, which was filled out in ink by the agent and presented to the defendant’s agent at South Omaha, who signed it for the railroad company. We think this evidence is conclusive that both parties agreed to the contract, although it was not signed by the plaintiffs or by Swift & Company as their agent.

The shipment was made wholly without this State and for this reason the statutes of the State do not control. The statutes of Nebraska (the State in which the contract was made) were not offered in evidence, and as there is no presumption that the statute of one State exist in another, the rule of the common law must control in the interpretation of the contract and the defendant’s liability thereunder. [Morrisey v. Perry Co.,. 57 Mo. 521.]

In Crouch v. Railway, 42 Mo. App. l. c. 249, Thompson, J., said:

“By the principles of the common law, as- established in this State, a common carrier, who receives goods for transportation to a point beyond his own line, engages only to carry them safely and within a reasonable time to the end of his own line, and deliver them to the next connecting carrier to continue or complete the transit, unless’the usage of the business, or of the carrier, or his conduct or language, shows that he takes the parcel as carrier for the whole route. [Coates v. United States Express Co., 45 Mo. 238; McCarthy v. Railroad, 9 Mo. App. 159, 166; Goldsmith v. Railroad, 12 Mo. App. 479, 483.] Nor does the fact that the carrier, so receiving the goods, gives a through rate of freight, take the case out of this rule; but he is still deemed to have received them in the character of carrier for his own route, and of forwarding agent for the shipper for the remaining route. McCarthy v. Railroad, supra; Goldsmith v. Railroad, supra.”

There are many authorities, including some Missouri cases, which hold that payment of full freight for carriage between two points is a contract to carry between those two points, and that the first carrier is responsible for the delivery of the goods. [Davis v. Jacksonville Southeastern Line, 126 Mo. 69, 28 S. W. 965; Lin v. Railroad, 10 Mo. App. 125; Fischer v. Transportation Co., 13 Mo. App. 133; Baltimore & Ohio Steamboat Co. v. Brown, 54 Pa. St. 77; Jennings v. Railway, 127 N. Y. 438; Atlanta & West Point R. R. Co. v. Texas Grate Co., 81 Ga. 602; Falvey v. Georgia Railroad, 76 Ga. 597; Hill Mfg. Co. v. Railroad, 104 Mass. 122; Adams Express Co. v. Wilson, 81 Ill. 339; Perkins v. Railroad, 47 Me. 573.] On the other hand, there are many respectable decisions, especially by the Federal Courts, holding that prepayment of the through rate of freight does not oblige the initial carrier to do more than safely,, and within a reasonable time, deliver the goods to its connecting carrier. But we think the doctrine of the cases last above cited is more consonant ■with reason and fairer to the shipper. And we do not understand defendant’s contention to be that the -shipment was not a through one, but as the goods had to be transported over several lines of railroad to reach their destination (a fact known to the shipper) it was competent for the defendant, by contract, to protect itself against liability for loss not occurring on its own line. That it might protect itself against liability not occurring on its own line, we think, is well settled by the following authorities. [Read v. Railroad, 60 Mo. 199; Nines v. Railway, 107 Mo. 475, 18 S. W. 26; Ketchum v. Express Co., 52 Mo. 390; Snyder v. Express Co., 63 Mo. 376; Myrick v. Railroad, 107 U. S. 102; Mulligan v. Railway, 36 Iowa 186; Detroit & Milwaukee Railroad Company v. Bank, 20 Wis. 122; Pendergast v. Express Co., 101 Mass. 120; Berg v. Railroad, 30 Kan. 561; St. L. & I. Mt. R. R. Co. v. Larned, 103 Ill. 239; Keller v. Railroad, 46 Alt. Rep. (Pa.) 261; Harris v. Howe, Receiver, 74 Texas 534.]

The contract of shipment expressly provides:

“This contract is. accomplished and the liability "of the companies as common carriers thereunder, terminates on the arrival of the goods or property at the station or depot of delivery.”

And if there was nothing in the waybill itself and no evidence to qualify the exemption clause, we would without hesitation, hold that the defendant’s liability ceased when, without reasonable delay, it delivered the car to the Denver & Rio Grande Railroad Company. But the evidence shows that the defendant selected the particular lines of railroad, over which the car should be transported to its destination and had these lines of road specially designated on the waybill, and collected and receipted for a through freight charge. The evidence also tends to show that the defendant had a traffic arrangement with the Atchison, Topeka & Santa Fe Railroad Company for the transportation of transcontinental freight, whereby a through rate was agreed upon which was to be shared in common by them. We think the reasonable inference to be drawn from this evidence is that the defendant made the Denver & Rio Grande and the Atchison, Topeka & Santa Fe Railroad Companies its agents for the transportation of the car of meat to Los Angeles, and that the exemption clause was inserted in the waybill for the purpose of fixing liability as between the several lines, over which the car would have to be hauled to reach its destination, and does not have the effect to restrict defendant’s liability to the shipper for losses which might occur on its own line. We so construed the contract on the former appeal (72 Mo. App. 296) and think this construction is supported by the case of Harp v. Grand Era, 1 Woods (U. S. C. C. ) 184, where it was held:

“Where several carriers unite to complete a line of transportation and receive goods for one freight, and •give a through bill of lading, each 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.”

A similar ruling was made in Baltimore & Ohio R. R. Co. v. Wilkens, 44 Md. 11; in Barton v. Wheeler, 49 N. H. 25, and in Wyman v. Railroad, 4 Mo. App. l. c. 39, where it is said:

“It may be regarded as equally well settled, upon authority, that if several common carriers, having each its own line, associate and form what to the shippers is a continuous line, and contract to carry goods through •for an agreed price, which the shipper or consignee pays in one sum, and which the carriers divide among them, then, as to third parties and with whom they contract, they are liable jointly for a loss taking place on any part of the whole line. [Barton v. Wheeler, 49 N. H. 25; Bradford v. Railroad, 7 Rich. 201; Cincinnati, etc., R. Co. v. Spratt, 2 Duv. 4; Nashua Lock Co. v. Railroad Co., 48 N. H. 339; Quimby v. Vanderbilt, 17 N. Y. 306; Chouteaux v. Leach, 18 Pa. St. 224; Boston, etc., Steamboat Co. v. Brown, 54 Pa. St. 77; Hart v. Railroad, 4 Seld. 37.]”

Also to the same effect is the case of Cummins v. Railway, 9 Am. & Eng. Railroad Cases 36, where it was ruled:

“Railroad companies have the power to contract to carry goods beyond their own line, and where they enter into such contract they will be liable as a common carrier throughout the whole transit.

“Three railroad companies, whose lines formed a continuous road between X and Y, held themselves out to the public as having formed a combination for the transportation of goods on the entire route. A at X shipped goods with one of the companies addressed to B at Y, and took a receipt whereby the company undertook to forward as per directions. Said receipt contained numerous provisions limiting liability, and provided that- all the carriers transporting the property as a part of the through line should he entitled to all the exceptions and conditions therein mentioned. Heldt that said carrier had contracted to carry the. goods through to Y, and was liable for' a loss occuring in consequence of delay in. said transit although the same occurred beyond his own line.”

It is true, there is no direct evidence to show that the Denver & Rio Grande Railroad Company was a party to the traffic arrangement shown to exist between the. defendant and the Atchison, Topeka •& Santa Fe Railroad Company, but we think, from its selection as one of the connecting carriers and from the evidence and circumstances shown in the case, it may reasonably be inferred that it was either a party to the arrangement or' was selected by defendant company as its agent to forward the car to the Atchison, Topeka & Santa Fe Railroad Company. When such connection or. agency is shown, Hutchinson says: “It is universally ágreed that' if any connection of that character exists by which they they become participants in common in the profits of the business, any one or all of them may be held liable at the option of the loser.” Hutchinson on Carriers, sec. 158.

The routing of the car was diverted without the consent or knowledge of the shipper, and the evidence shows that this change of route caused the delay and the damage to the goods. The agreement was- specific that the car should be transported .over the roads designated' on the bill of lading. This agreement was not satisfied by a change in the routing and was a clear breach of the contract. [Hutchinson on Carriers, sec. 310; Goodrich v. Thompson, 44 N. Y. 324.] And the defendant is liable notwithstanding the exemption clause in the bill of lading. [G. H. & H. Ry. Co. v. Allison, 59 Texas 193; Texas & P. Ry. Co. v. Boggs, 40 S. W. 20; Stewart v. Transportation Co, 47 Iowa 229; Illinois C. R. Co. v. Southern Seating & Cabinet Co., 50 L. R. A. (104 Tenn. 568) 729.]

We think the court properly refused defendant’s declarations of law and that the evidence supports the judgment. The judgment is therefore affirmed.

All concur.

SEPARATE OPINION.

GOODE, J.

— the appellant was liable as a common carrier for the loss of the carload of meat in controversy at any point of its transit from Omaha to Los Angeles, was adjudged on the former appeal of this case and the decision of the present appeal might have rested on that fact alone. 72 Mo. App. 296. But I think the very words of the bill of lading show the appellant contracted to transport the meat from South Omaha, Nebraska, to Los Angeles, California, and deliver it at the latter point to the consignee or a connecting common carrier. The meat was ruined in transit by somebody’s negligence. It was too long on the road and was not iced at proper times. Moreover our conviction is strong that appellant is to blame for the delay, as it must have known the dispute between it and the Santa Fe Railway Company was likely to cause the latter to-refuse to receive the car on the division of the freight money accorded by appellant. This dispute had arisen prior to the shipment in controversy, and when appellant routed the car to be delivered to the Santa Fe at Trinidad, it invited loss. It had no arrangement with the Santa Fe Company to receive freight at that point and knew the latter company insisted on not receiving it there. If the appellant’s contract was to carry over the whole route, it cannot be excused from liability for the loss of. the meat by negligence, even though the loss occurred while it was. in the custody of some intermediate carrier. The appellant remained responsible throughout. If the appellant had stood on its common law right and contracted to carry to the end of its line only, or had it not contracted to carry further, tlie clause in the bill of lading exonerating it from liability for losses occurring on other than its own line, would be valid. The case is really one of interpretation of the contract: What did the appellant agree to do? The first sentence of the bill of lading is as follows:

“Received from Swift & Company, the following packages, contents unknown, in apparent good order, marked and numbered as per margin, to be transported from South Omaha to Los Angeles, Calif., and delivered to the consignee, or a connecting common carrier.”

That language made a contract for through carriage by the appellant, which contract could be completed, only by delivery to the consignee, or a connecting carrier at the destination named; not to a connecting carrier anywhere on the route, but at Los Angeles. There is a subsequent clause in the bill of lading which implies that the appellant received the goods to be forwarded over lines of connecting carriers and recites that it assumed no responsibility for the safety of the meat except on its own line. In view of the facts in proof the use of the words “to be forwarded” did not make the contract one on the part of the appellant to carry only over its own line and thereafter be liable as foiwarder and not as carrier for the balance of the route. Hutchinson, Carriers (2 Ed.), sec. 157 and cases cited in note. The appellant collected the freight for the whole journey and took part in, if it did not control, the routing of the car. In my opinion the only fair construction of this contract is that the appellant Avas to transport the goods from Omaha to Los Angeles; and that other railroad companies which assisted in carrying out the contract, did so as agents of the appellant. Nanson v. Jacob, 12 Mo. App. 125; Germain Fruit Co. v. R. R., 65 Pac. Rep. 948. So far as the evidence shows this appellant need not have contracted to carry beyond its own line. The contract was a Nebraska one and the Nebraska statute which would make the contract a through one in any event, was not put in evidence. But in point of fact and by express words, tbe appellant’s agreement was to carry over the entire route. Therefore, it cannot be excused from liability for the negligent acts of intermediate carriers who must be regarded as its agents. In the Missouri cases cited and relied on by appellant it did not appear that the bill of lading bound the initial carrier to transport the goods to destination. In Nines v. R. R., 107 Mo. 475, the petition alleged the defendant agreed to carry the property to destination and the answer denied that allegation and averred the defendant agreed to carry no further than St. Louis, its terminus. In Dimmitt v. R. R., 103 Mo. 432, 15 S. W. 761; Miller, etc., Co. v. R. R., 138, Mo, 658, 40 S. W. 894, the bills of lading showed on their faces that the defendant' companies agreed to carry, not to destinations, but to the end of their respective lines. I think the judgment should be affirmed.,