Piedmont Manufacturing Co. v. Columbia & Greenville Railroad

19 S.C. 353, 1883 S.C. LEXIS 89

• Court: Supreme Court of South Carolina
• Decided: October 25, 1883
• Status: Published

Opinions

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

In November, 1880, the plaintiff delivered to the defendant at Piedmont station, Green-ville county, twenty bales of domestics, to be transported to-Woodward, Baldwin & Co., at New York, and at the same time and place three bales for Woodward, Baldwin & Norris, at Baltimore. The bill of lading given by the defendant will be found in the brief. It contains a stipulation, that, in case of loss, “ the company in whose actual custody the property was at the time of the loss should be answerable.” Also an exemption for loss by fire. The twenty bales were destroyed by fire in transit on the wharf at West Point, Va.,-and the three bales at the same place on board the steamer Shirley, lying at the wharf. This action was brought to recover damages for the loss of these goods.

The defendant relied upon the exemption in the bill of lading as to fire — that being one of the excepted perils in said bill — and also upon the stipulation as to the liability of the company actually in custody. Two actions were brought below, but as the facts and principles involved were substantially the same in both, it was agreed that the result of the trial in one should determine the other. The jury found for the plaintiff in both cases. The defendant has appealed.

It is admitted that common carriers in this State cannot limit their common law responsibility by any notice or declaration or special contract for or in respect of any goods to be carried by them. This was specially provided by act of legislature (Gen. Stat., 1872, p. 336,) of force at the time of this loss. The first and prominent question, therefore, in the case is, Was the defendant a common carrier as to the goods in question when they were destroyed ? If so, then the exemptions in the bill of lading (supposing that to contain the contract) would not avail. If, however, the defendant did not sustain the relation of common carrier as to these goods at the time of their destruction, then, upon equally as well-settled principles as the above, its liability would depend upon the terms of the contract by which the company undertook to ship the goods beyond the terminus of its own line. In other words, the law is, that a common carrier is responsible to the full . extent of his common carrier liability, notwithstanding any contract he may make with reference thereto as to all goods, &c., to which he sustains the relation of common carrier; while, on the other hand, one who is not a common carrier may make any contract for transportation which the parties choose, not contrary to law. R. R. Co. v. Pratt, 22 Wall. 129; R. R. Co. v. Manufacturing Co., 16 Wall. 324.

The true test of the character of a party, as to the fact whether he is a common carrier or not, is his legal duty and obligation with reference to transportation. Is it optional with him whether he will or will not carry ? or must he carry for all ?' If it is his legal duty to carry for all alike, who comply with the terms as to freight, &c., then he is a common carrier, and is subject to all those stringent rules which, for wise ends, have long since been adopted and uniformly enforced, both in England and in all the States, upon common carriers. If, on the contrary, he may carry or not, as he deems best, he is but a private individual, and is invested, like all other private persons, with the right to make , his own contracts, and when made to stand upon them. While the law has imposed duties and heavy responsibilities upon common carriers, which they cannot avoid, limit or shake off, yet it has never attempted to hamper and surround those who are not common carriers with the stringent rules applicable to carriers, or to prevent them from exercising their own judgment as to the responsibilities which they are willing to assume in a special case^/

‘Now the important question arises: Was the defendant a common carrier with reference to the goods in’ question ? The defendant is a corporation created under an act of the legislature, and was formed and organized for railroad transportation between certain points in this State, and as to this railroad and between these points it is certainly a common carrier in the full sense of that term, subject to all the laws and principles, statutory and otherwise, which have been established in this State in reference to common carriers. And if this loss had occurred between the termini of the road there would be no difficulty in the case. In fact, in that event, we suppose the case would not have been here.

It is equally as certain that, so far as the charter of the company is concerned, under its provisions this corporation is not a common carrier beyond its own termini, there being no legal duty imposed to receive and transport goods beyond those points. It would seem to follow then, from these principles, that if liability has attached to the company it must be either because the said company has become a common carrier beyond its termini and over the connecting lines by usage, its character of business, or by contract,.express or implied; or it has become liable in this special case by a special contract covering the case.

There is no foundation for the first position; in fact, it has not been urged in the argument that this company has become generally a common carrier outside and beyond the limits of its charter and over its connecting lines, and that it is legally bound to transport goods to any point beyond its line as may be ■designated by the shipper. It is true that the destination of the passengers embarking on this road, and of the goods shipped thereon, is frequently beyond its own termini, and at points . reached only by connecting roads; but this fact cannot, nor does the payment and receipt of the fare and freight through to the destination, which is as much for the convenience of the traveler and shipper as for the roads, make the company first concerned ex vi termini a common carrier through the whole distance. Such a doctrine would make railroad enterprises a fearful business. It would destroy them utterly, and it finds no place in the books or in reason.

Eailroad corporations, however, while being common carriers between their termini, and bound inflexibly by the law on this subject; with no power to alter, amend or limit it as to transportation on their immediate line, may yet contract to deliver consignments at any point beyond such terminus as may be agreed upon, and this contract may be either absolute or conditional, and when made it is subject to the adjudication of the courts, as all other contracts are. The defendant being a carrier "V only to the extent of its line under its charter, was not bound to receive and ship the goods of the plaintiff beyond its termini. This was optional, as we have seen, and its liability, therefore, in such cases must depend entirely upon the contract made between the parties. Was it absolute, or was it conditional? and if conditional, did the conditions happen which were to exempt the road ?

The complaint charges that in consideration of a certain sum the defendant “ agreed safely to carry from Piedmont station to the city of New York, over their connecting lines, and there deliver to Woodward, Baldwin & Co., in good order,” the goods in question. This is an allegation of an absolute and unconditional agreement, and, had it been sustained by the evidence, there would have been no escape for the defendants; the case of Kyle v. Laurens R. R. Co., 10 Rich. 382, would have been directly in point. The answer of the defendant puts in a positive denial of the charge in the complaint, and sets up a special and conditional agreement as to the shipment of these special goods. Upon the complaint and answer, the first question before the court below, as it appears to us, was one of fact, and for the jury, to wit: Was the contract absolute and conditional, as alleged in the complaint, or was it, as stated in the answer, subject to conditions and contingencies ?

The testimony on this subject on the one side was the evidence of Mr. Hammet, the president of the plaintiff company, where he said generally: “All our arrangements for shipment and through rates were made with the general freight agent of the Columbia and Greenville Eailroad Company at Columbia. We were to pay sixty cents per one hundred pounds freight to New York. No contract as to limiting liability of defendant was made or even alluded to. I was in New England when goods burnt.” The evidence of the agreement set up in the answer was the bill of lading given when the goods were received at Piedmont station by W. D. Vaughn, agent of the Columbia and Greenville Company, and signed by him as such agent. This bill of lading, it seems, was given to the plaintiff, and by it forwarded to the consignee in New York.

The judge, in his charge, instructed the jury that the agreement between the parties was the one detailed in the testimony of Mr. Hammet; that this agreement was unconditional and had no limited liability attached; that the agent, Vaughn, had no right to alter the terms of this contract and attach conditions, and that, in his judgment, the bill of lading was simply a receipt to carry out the agreement previously entered into between Mr. Hammet and the general agent of the defendants.

We think this charge was erroneous. It is true that it is the province of the judge to construe agreements and extract their meaning, but it is first the province of the jury to determine what agreement has been made. Here, it seems to us, the judge went beyond construction and charged upon facts, the finding of which is alone the province of the jury. The charge in this respect is subject to the fifth exception of defendant. It is not for this court to adjudge or indicate what the precise agreement between the parties was. This, as we have said, is a question of fact for the jury, and the jury should have been left untrammeled in the duty of determining the fact; and as, in our opinion, they were not so left, the cases must go back on this ground if no^ other.

But, even supposing that the evidence of Mr. Hammet is the controlling testimony in the case, and that he detailed truthfully what occurred between himself and the general agent (of which there is no doubt), yet we think it was error of law in the Circuit judge to hold that that agreement amounted to an unconditional contract on the part of the defendants to transport and deliver at all times and to all points whatever goods the plaintiffs might ship over the road of the defendant to some destination by connecting lines beyond its termini, and that the agent of the defendant, who gave the bill of lading, could not alter the terms of this previous contract.

We do not see anything of a positive agreement in the interview between Mr. Hammet and the general agent of Columbia, except as to the rates upon which his goods were to be shipped. He says: “All our arrangements for shipment and through rates were made with the general freight agent of Columbia and Greenville Railroad Company at Columbia.” But what these arrangements were is not specified, except as to the rates. Under such circumstances we do not see why the agent of the company and the plaintiff might not specify the terms and conditions of the shipment, when he came to receive a special consignment. It would certainly not be illegal for the shipper and the agent at that time to include in the bill of lading such stipulations as might be agreed upon. Whether both parties consented and agreed upon the stipulations, or understood them alike, might be a question dependent upon the facts, but that they would have the right to insert such as they deemed proper, there could be no question. The error of the charge was, that the Circuit judge assumed that the stipulations found therein were inserted by the agent of defendant without the knowledge and consent of the plaintiff. This we think was a question of fact, and should have been left to the jury.

The legal propositions mainly relied on and earnestly pressed by the respondent’s counsel, need not be nor can they be successfully contested. They are sustained by abundant authority. “Where a carrier undertakes, without more, to transport beyond its own line, the liability attaching at the commencement will ■continue throughout the transit to destination; all connecting lines of carriers employed in furthering and completing such transportation become the agents of the first carrier, and for their defaults he becomes responsible to the owner of the goods.”

We need not go behind Kyle v. Laurens Railroad Company, 10 Rich. 382, for support to this proposition. There the Laurens Eailroad undertook to deliver cotton in Charleston. The cotton was burnt on a connecting line. The Laurens road was held responsible, and why ? Because its contract had been breached; it failed to deliver in Charleston. The court did not hold that the Laurens Eailroad was a common carrier as to this •cotton, and upon that ground liable for its loss, but that it had contracted to do what it had failed to do, and therefore was liable. And here, if it had appeared as a fact found by the jury, that the defendant had made a contract which, upon a legal construction, was without conditions and absolute, then the ■defendant would be responsible upon the same principle as in Kyle v. Railroad Company, supra.

The respondent further contends, that a common carrier cannot generally limit his liability by a special agreement. And in no event can he shield himself from the consequences of negligence or misconduct by an unconditional exemption from certain perils as fire, &e. This, too, he sustains by abundant authority. But it seems to be overlooked in the application which is sought to be made of these principles on behalf of the respondent, that they apply to common carriers and to common carriers alone; that they have no reference to others who may happen to transport goods at a certain time and place, when and where they are under no legal obligation to do this work, but have assumed it voluntarily, perhaps as much for the convenience as otherwise of the owner of the goods. It is conceded that they do have reference to common carriers; those who have undertaken the business of a common earner either as a chartered company or otherwise, but we fail to see their application to the other class suggested.

The argument of respondent, it appears to us, has assumed the real point at issue, to wit: that defendant, as to the goods in question, was a common carrier. We do not think that the defendant was a common carrier beyond its termini under its charter. We hold that there was no legal duty on it to deliver goods beyond its line; that it might contract to do so, however,, according to such terms as might be agreed upon between it and the shipper. This agreement might be either absolute or conditional. It might make the company substantially a common carrier, and therefore subject it to all the rules and principles-contended for by the respondent-, or it might contain limitation and restriction far short of this. But, whatever may be the contract in a given case, is a question of fact for the jury, which,, when found and properly construed, must become the law of the case.

There is really no great difference between the English and' American doctrine on this subject. The one holds that, to-exempt a carrier from liability beyond its terminus there must be a special contract to that end. The other, that to make the-first carrier responsible there must be a special contract to that end. Both admit that the carrier is not- bound to go beyond the terminus, but that he may do so; and if he undertakes to do so he is bound by his undertaking. In the one case, if the contract contains no exemption it is absolute; in the other, if conditions are-specified they must govern. This is nothing more than saying that the whole thing is per contract, and that whatever the contract is that must be enforced — the legal construction being, that in the one case, in the absence of exemptions, the carrier has contracted, unconditionally, to deliver; the other, with conditions inserted,, they must control. But if there be a difference, that difference-is immaterial here, because both parties claim a contract — the plaintiff an unconditional contract made with Mr. Hammet,. and the defendant a conditional one made by ’Vaughn and accepted by the plaintiff in the receipt of the bill of lading. So at last, as we have said, the case hinges in the first instance upon a question of fact.

The principles announced in the leading case referred to by respondent’s counsel (Railroad Co. v. Lockwood, 17 Wall. 357,) do not conflict with those above. The court in this case, as is said in the argument, after a most careful examination of the principal authorities, both English and American, reached the conclusion, as announced in its opinion: “ First, that a common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law. Secondly, that it is not just and reasonable, in the eye of the law, for a common carrier to stipulate for exemption from responsibility for negligence of himself and servants. Thirdly, that these rules apply both to carriers of goods and carriers of passengers, and with special force to the latter.”

These, no doubt, are all sound conclusions, and are not only well sustained by authority, but are founded on justice and wisdom, when applied, as this case evidently intended they should be, to the business of common carriers acting within their sphere —which business, in this day, has assumed such important and immense proportions. There is not a word, however, in this case, or in the conclusions announced, which make these principles applicable to one who is not a common carrier, or denies to such one the privilege and right to contract for himself. It must not be taken for granted that, because one is a common carrier between certain points, that he is also a common carrier beyond those points, and then apply the principles which have been established in reference to common carriers to him, both within and beyond his lines.

This distinction, it appears to us, has not been clearly observed in this case. Hence we think that many of the authorities cited are not applicable. In Railroad Co. v. Lockwood, supra, Mr. Justice Bradley, drawing the true distinction, said: “A common carrier may undoubtedly become a private carrier or a bailee for hire, when, as a matter of accommodation or special engagement, he undertakes to convey something which it is not his business to convey. * * * In such case such agreement might be made in reference to his taking and conveying the same, as the parties chose to ma,ke, not involving any stipulation contrary to law or public policy. But when a carrier has a regularly established business for carrying all or certain articles, and especially if that carrier is a corporation created for the purpose of the carrying trade, and the carriage of the articles is embraced within the scope of its chartered powers, it is a common carrier, and a special contract about its responsibility does not divest it of the character."

Neither is there any conflict between the principles herein, and the well-considered case from New Hampshire, where the court held that where several common carriers are associated in a continuous line, one price for through freight being received by the initial company, the goods being marked and received to be delivered at a distant point beyond the termini of such initial company, that in such case the initial company is bound to carry them or see that they are carried to their final destination, and is liable for loss happening at any point along the line. Nashua Lock Company v. The Worcester and Nashua Railroad Company, 48 N. H. 339. That was upon the ground that from the facts mentioned, and nothing more, the court would conclude in accordance with the English doctrine, that the contract to deliver in that case was not an. absolute contract to deliver at the point mentioned, and, of course, should be enforced as made by the parties. But there is nothing in that case which even intimates the idea that the initial company was bound to receive the goods, whether it wished to do so or not, or that the parties could not make a contract with stipulations if they saw proper to do so. That case is authority for the position that, where the initial company receives the goods, marked, and to be delivered to a distant point, with the freight paid to that point, and no stipulations are made - to the contrary, the contract is absolute. It decides nothing more, and it is in accord with Kyle v. Laurens Railroad Co., supra, but not at all in conflict with the positions taken hereinabove.

We think the charge of his Honor is subject to exception first and the specifications (b) and (c) thereunder, in that he declined so to charge. The other specifications under this exception assume a question of fact which the judge was not authorized to assume. These cannot be sustained.

Exceptions third, fourth and sixth are overruled. The third because the request is based on an assumption of fact, to wit: that the bill of lading was the contract. This, as we have seen, was a question of fact for the jury and could .not be assumed by the judge. The fourth claims that no previous agreement could alter the terms of the bill of lading. This would be true if the bill of lading constituted the contract, but that was the very question at issue. The sixth called upon the judge to charge that “whether the contract was the contract of the Columbia and Greenville Company or the contract of each successive line, yet that the exemption from the peril from fire attached to the goods all through.” Each successive company was certainly a common ' carrier along its line, and while the goods were on each line, the common law liability of a common carrier, with all its absolute force, attached, and exemptions could not be made by which the company in possession could divest itself of the character of a common can’ier; hence, the judge could not have charged this request.

Exceptions second, fifth, seventh and ninth are sustained.

Exception eighth we do not consider in the case. The exceptions have not been set out in full in this opinion, as this would have encumbered it too much. It is to be hoped that the reporter, in giving a statement of the case, will set them out.

Next and last, as to the admissibility of the letters of McCaughrin, the president of the defendant company. These letters were the written declaration of an agent, and their admissibility must depend upon the rules of evidence in such cases. These rules would allow such declarations when constituting a part of the res gestae, or when made within the scope of the agency, but declarations made some time after the act and beyond the scope of the agency should not be allowed. The letters contained an admission by the president of the liability of his company, or rather the expression of a legal opinion to that effect, and they were written some time after the controversy began. We do not think that this opinion was within the scope of the agency of the president, nor its expression a part of the res gestae. They were, therefore, inadmissible. Had they contained an admission of some fact connected with the contract, it would have been otherwise.

It is the judgment of this court that the judgment of the Circuit Court be reversed.