Page v. Chicago, St. P. M. & O. Ry. Co.

64 N.W. 137, 7 S.D. 297, 1895 S.D. LEXIS 72

• Court: South Dakota Supreme Court
• Decided: August 3, 1895
• Status: Published

Opinions

Kellam, J.

This is an action to recover for damages to a car load of popcorn shipped by respondent from Mitchell, S. D., over appellant’s road. The corn was consigned to a party in Boston, and it is practically undisputed that it was damaged in transit, but after it left appellant’s line of road. It is evident that the rights of the respondent and the liabilities of appellant must depend upon the contract under which the corn was shipped. If appellant made a through contract, by which it undertook to transport the corn through from Mitchell to Boston, then it may be liable; but unless it did by contract undertake to do more than to carry it safely over its own line, then it would not be liable for injuries occurring on other lines after its own duty had been discharged by properly delivering it in good condition to such connecting line. This is statute law. Comp. Laws, sec. 3905. At the conclusion of the evidence the court refused to direct a verdict for the defendant, and, under instructions excepted to by defendant, submitted the questions in issue to the jury, who found for the plaintiff. From the judgment entered thereon the defendant appeals.

While, as already stated, the duty of appellant company, in the absence of a different contract, was fully performed when it safely carried the corn to the terminus of its own line and delivered it in good condition to the connecting line; yet it was entirely competent for it to make a contract to carry it through to Boston, and if it did so undertake, such contract would be binding upon it. Railroad Co. v. Pratt, 22 Wall. 132; Hill Manuf’g Co. v. Boston & L. R. Corp., 104 Mass. 122; Quimby v. Vanderbilt, 17 N. Y. 306; Condict v. Railway Co., 54 N. Y. 500. It is probably equally well settled that a .local station agent, as such, has no power, without further authorization, express or implied, to bind his company by a contract to transport freight beyond its line. Grover & Baker Sewing Mach. Co. v. Missouri Pac. Ry. Co., 70 Mo. 672; Railroad Co. v. Pratt, supra; Burroughs v. Railroad Co, 100 Mass. 26; Wait v. Bailroad Co, 5 Lans. 475.

Neither of these propositions is disputed by either party, but the claim of appellant is that there was no evidence in the case so tending to show an enlargement' of the authority or power of the station agent, or a recognition by the company of the contract claimed to have been made, as to justify the submission to the jury of the question of his authority to bind the company by the contract which respondent claims he undertook to make. Assuming for the moment that the agent had authority to make a through contract, we think the question of whether he did so or not is settled affirmatively by the verdict of the jury, for they were distinctly charged by the court to find from the evidence what was the intention and understanding of the parties, as to whether the undertaking was to carry the corn through to Boston and in a through car, without transshipment, or simply to carry it to the end of appellant’s road and deliver to a connecting line, and that, unless they found affirmatively on the first proposition, they could not find a verdict for the plaintiff. We conclude, therefore, that the open question in the case is this: Did the trial court err in submitting to the jury, against defendant’s objection, the question of the station agent’s authority to make and bind his company by a through contract? The settlement of this question will require an examination of the evidence. While the testimony of the station agent and the plaintiff may be in some respects discrepant, the question must be considered from the standpoint of the plaintiff’s evidence, for the jury was entitled to accept his version of what was said and done as correct, and so the question before the trial court was, would the plaintiff’s evidence, if accepted by the jury, sustain a verdict in his favor? The plaintiff after testifying that he had a lot of popcorn which he desired to ship, and that Mr. Obeland, appellant’s station agent at Mitchell, solicited the consignment, proceeded as follows: “Mr. Obeland said that he understood that I had a car of corn to ship to Boston and that he would like me to consign that corn over his road * * * I told him that if he would give me as good -or better rate than the Milwaukee road would do, that I would consign over his line of road. He said he could not give me a rate, a cut rate, but he would write for instructions and see what he could do. I next saw him a week or ten days afterwards. He then said he had a rate, — that he had got instructions and had received a rate. That is all he said at that time. I then said I would ship over his road. That is all I said at that time. I next had a conversation with him in reference to the shipment of this freight, probably a week later at my place. He came out and asked me when I would be ready to ship, and when to order a car. I told him I would ship, and there was a conversation about a through car, and I made an-agreement with him then for a new car and a through car, and a car that was not to be transferred, — no transferring of the goods,— through'to Boston without a transfer. He said that he had received a rate, a lower rate than the Milwaukee was giving at that time. He stated the rate was 62-| cents. * * * I insisted on a car that must be a through car, without any transfer of goods. The freight was to be payable at Boston. I said that I would ship the corn if I could get the rate, a through car and a car that would not be transferred. He said that was the kind of & rate and the kind of a car that he would give me. Q. To whom did you instruct Mr.-Obeland, if at all, to ship that corn to Boston? A. It was billed to James Spear. Q. What did he say in reference to the shipping of it to Mr. Spear? A. He said he would bill it through to Mr. Spear.” By the testimony of Station Agent Obeland, it appeared that the car furnished for the shipment of this corn was not one of appellant’s cars, but a new car of the Sao line, which connected with appellant’s line at Minneapolis, and that he did not order a Soo car, and that he did not know who did. He further says: “I know how it came that the Soo car was sent here for that shipment, I ordered a car that I could load popcorn in to be consigned to Boston, and tbey gave me a foreign car because we could not load any of our own cars off our own line. This oar being sent care of Soo line, they gave me a Soo car. I suppose that is the reason.”

It is very evident that no specific authorization of the agent Obeland is shown to make a through contract or a contract binding appellant company to carry this freight beyond the limits of its own road, but authority to contract and the contract may be inferred from facts and circumstances whose existence, if found to exist, could hardly be accounted for except upon the theory that the parties had mutually and authoritatively agreed upon what should be done. Accepting Page’s testimony as correct, and, as before remarked, in the settlement of the immediate question now before us we must assume that the jury would have so accepted it, there could be little doubt that when the corn was accepted for shipment, both he and the agent understood that the understanding of the company was to take it thr mgh to Boston in the Soo car, into which it was loaded at Mitchell. If the agent did not so understand it, and Page’s testimony is true, he was dealing fraudulently with Page, for by such testimony the exact condition under which the shipment was made by Page and received by the agent was that it was to be a through shipment in a car without a transfer. It is true, the testimony does not very directly or satisfactory connect the general freight agent or the other general officers of the company with such understanding between Page and the station agent, but we are inclined to think that, while the agent’s authority could not be safely found from any one particular and isolated fact found, yet all the facts, with the inferences properly deducible therefrom, were sufficient to justify the court in submitting the question to the jury as one of fact, whether the company had so empowered the agent, or had recognized the contract claimed to have been made with him as binding upon it. First, a through price was given and agreed upon, which was to be the on e and entire compensation for carrying through. In Railroad Co. v. Pratt, 22 Wall. 132, the court, in speaking of the significance qf such fact, says: “Again, a specific price was agreed upon for the transportation over the whole route. This was in accordance with the practice, and whether paid at Potsdam or at Boston was unimportant. * * * The jury were justified in inferring that, where a carrier fixes a price for transportation over the whole route, he makes the entire contract his own. One who carries simply over Ms own line, and thence forward by other lines, would ordinarily, the jury may say, make or collect his own charges, and leave the remaining charges to be collected by those performing the remaining service. Receipt of the entire pay affords a fair presumption of an entire contract.” In Root v. Railroad Co., 45 N. Y. 532, the court, referring to the manner in which a through contract may be shown, said: “Such an undertaking may be established by express contract, or by showing that the company held itself out as a carrier for the entire distance, or received freight for the entire distance, or other circumstances indicating that it was to carry through.” In Railroad Co. v. Copeland, 24 Ill. 332, where the question was as to the liability of the receiving company for the loss of baggage beyond its own line, where the owner had paid through fare to such first company, the court thus tersely put the undertaking of such company with the passenger: “You pay through, and you and your baggage shall be carried through.” This view of the effect of a through payment was declared in Candee v. Railroad Co., 21 Wis. 587, to be a “safe, sound, and reasonable rule.” In each of the following cases, the fixing and receipt of one entire compensation for the through route is spoken of as a circumstance, in connection with others, tending to show a through contract, or such a “connection in business” between the several lines as to make the first carrier liable for the whole route. Weed v. Railroad Co., 19 Wend. 534; Hart v. Railroad Co., 8 N. Y. 37; Wilcox v. Parmelee, 3 Sandf. 610; Nashua Lock Co. v. Worcester & N. R. Co., 48 N. H. 339; Chouteaux v. Leech, 18 Pa. St. 232; Steamboat Co. v. Brown, 54 Pa. St. 82. In 2 Pars. Cont. p. 212, the learned author, in speaking of what would tend to show a com tract to carry through, says: “And his receipt of payment for the whole route would be evidence going far to prove such undertaking.”

We should be unwilling to hold that the payment and receipt of one entire compensation was sufficient of itself to establish a through contract, but we do think it reasonable, and justified by well considered authorities, to hold that it is of itself a fact to be considered, in connection with other circumstances, if any are shown, as going to show the intent and understanding, and therefore the contract, of the parties. It further appears that the car furnished for this shipment was not one of its own, but one of an eastern line. The agent says he did not order such car. Presumably, then, it was sent by the company. The agent accounted for tliis car being sent on the ground that appellant company did not send its own cars off its own line of road, but this would not explain if the company contemplated a transfer of this freight at Minneapolis, the end of its line. We do not regard the fact at all controlling, and, considered alone, would probably not be very important, but it is right in line with plaintiff’s claim that the company was to take the corn through without transshipment, and, unexplained, was another circumstance from which, with others, the jury might infer an agreement so to do. The company did just what it seems to us it would have done if it fully understood that the corn was to be taken through without reloading. It sent, not one of its own cars, but one of a connecting line, over which the freight was to be transferred after it left the defendant’s road. This circumstance, which the company itself created, would certainly confirm Page in the understanding that he had made'a valid contract with the agent for a through car, and that the company was recognizing and carrying it out. Ag was said in Hill Manufactoring Co. v. Boston & L. R. Corp., 104 Mass. 135: “Such being their position, they offer to receive goods to be carried to New York. They receive them to be delivered there. They give a way bill for the entire distance. They take pay for transporta^ tion over the whole of the line. The whole course of proceedings is exactly what it would be if they meant to contract for the whole distance, and to all appearances, as between them and the owner, the freight money is one indivisible item. We think these circumstances justify the inference that they assume the liability for the entire transit, relying upon a third party for indemnity against all risks occurring beyond their own limits.” In the above case, the freight was billed through. In the case at bar, the appellant attaches much importance to th.e fact that this corn was billed only to Minneapolis, but the billing was the act of the station agent. If he billed it through to Boston, as Page swears he said he would, the company would doubtless have claimed, as now, that he had no authority to, and did not bind it by so doing. It nowhere appears that Page knew that it was not billed through, as he testifies it was to be, but was only billed to Minneapolis. The fact that it was so billed without Page’s knowledge is only important as tending to show the agent’s understanding of the contract. It is not controlling.'

Suppose a shipper applies to the station agent at Pierre, on the Northwestern Bailway, for a rate and a through car to Mitchell on the Milwaukee road. The agent informs him that he will get him a rate from his superior officers. He afterwards gives him the rate so received. The shipper accepts the terms, and the company, from its headquarters, sends him a Milwaukee car, which he accepts and loads. Can it be fairly said that there is nothing in such facts, unexplained, tending to show a knowledge and an understanding on the part of the company that he was to have a through car? It would not prove such contract, and its probative force might be weak, but it would not be immaterial, certainly, when considered in connection with other circumstances, such as the payment of one entire compensation to the point of destination. Through shipments of freight under one entire contract with the receiving carrier, over its own and connecting lines, are not unfrequent or extraordinary transactions, and while the carrier, like any other party is only liable upon such contract as it has made, the making of the contract may be inferred from its conduct and attending circumstances which it creates. It would be wrong and intolerable to bold that such contract could only be shown by evidence of an express and formulated agreement by the manager or general freight officers of such carrier. In this case the facts and circumstances, as testified to by Page, in our opinion tended to show an understanding by the company that it was to take the corn through to Boston without change of cars. As against the evidence of the station agent, it might not have satisfied us that such was the company’s understanding; but it was a question of fact, and under an instruction which we think stated the law correctly and with fairness to both sides, the jury found the fact in favor of the plaintiff. The other assignments of error are generally subordinate to, and controlled by, the views we have here expressed upon the main question. We have examined them all, and see no good reason for disturbing the judgment of the trial court, and the same is affirmed.

Córson, P. J., concurs.