Pittsburg, C. C. & St. L. Ry. Co. v. Viers

113 Ky. 526

• Court: Court of Appeals of Kentucky
• Decided: April 15, 1902
• Status: Published

Opinion

Opinion oe the court by

JUDGE DURELLE

Aeeirmtno.

The appellee shipped 68 head of cattle at Sonora, on the line of the Louisville & Nashville Railroad Company, to be transported to Indianapolis. The cattle appear to have been injured in the course of transportation, but not while on the line of the Louisville & Nashville Railroad. Suit was broughi by the shippers against the Louisville & Nashville Railroad Company and the Pittsburg;, Cincinnati, Chicago & St. Louis Railway Company for damages for the injury to the cattle in transportation. The Louisville A Nashville Railroad Company set up its contract, which contained a stipulation that all liability upon it as a carrier of the stock should cease at its terminus, when the stock should be ready to be delivered to the carrier whose line might constitute a part of the route to destination, denied all injury to the cattle while in course of transportation over its. line, and pleaded certain other matters not necessary to be here considered. By reply to the answer oí the Louisville A Nashville Railroad Company, the appellees set up section 196 of the Constitution, as avoiding the stipulation against liability for injury to the stock except upon its own line. A demurrer to the reply was sustained, and the petition dismissed, as to the Louisville & Nashville Railroad Company.

The action of the circuit' court in sustaining the demurrer of the Louisville A Nashville Railroad Company to the reply was correct. The provision of the contract is not one limiting the company’s common-law' liability. At common law the carrier was under no liability .beyond its own line. Such liability could be created by contract. If so, it was the result of the contract, and was not imposed by the common law. Therefore, whether the company contracted to be liable or to be exempt from liability, the contract was not in reference to any common-law liability, and section 396 of the Constitution can have no application. This was distinctly recognized in Ireland v. Railroad Co. (105 Ky., 400) (20 R., 1586) (49 S. W., 188), where, in an opinion by Chief Justice Hazelrigg, it was said: “It is urged that the clause is an attempted limitation of the carrier’s common-law liability, and is therefore void. We do not think so. A't the common law, without a contract to the contrary, there was no liability beyond the carrier’s own line. About this there is no dispute. The carrier, however, might contract to carry beyond its own line, and then it became, of course, liable beyond its terminus.” And in Railroad Co. v. Tartar (19 R., 230) (39 S. W., 698) it was said- “The general rule is that a carrier is not liable beyond its own line, unless by contract to that effect, express or implied.” Elliott, R. R. section 1433; Bryan v. Railroad Co., 11 Bush, 597. To the same’ effect is the decision in Railroad Co. v. Cooper (19 R., 1152) 42 S. W., 1134, and United States Mail Line Co. v. Carrollton Furniture Mfg. Co. (101 Ky., 658) (19 R,, 833) (42 S. W., 342). And see Hutch. Carr., section 149b, and note to Wells v. Thomas, 72 Am. Dec., 231.

The appellant, the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, pleaded to the jurisdiction. It also answered, traversing practically all the averments of the petition, except the averment of the contract with the Louisville & Nashville Railroad Company; and a trial was had, resulting in a verdict for appellees for $425, on which judgment was entered.

The principal question presented upon this appeal is as to the jurisdiction of the court. The contention for appellant is that it had no agent or office in Hardin county, where the contract of shipment was made, and that theappellees can not give jurisdiction to the Hardin circuit court of an aci ion against the Pittsburg-, Cincinnati, Chicago ■Sc St. Louis Railway Company by joining the Louisville & Nashville Railroad Company as a defendant, — it being a resident of nardin county, — unless it shows a cause of action against the resident defendant. Meguiar v. Rudy, 7 Bush., 432; Fernold v. Speer, 3 Metc., 459; Stamper v. Lumber Co. (9 R., 175) (4 S. W., 330); Eichhorn v. Railroad Co. 112 Ky., 338 (23 R., 1640) (65 S. W., 797). This contention may be conceded. Under section 73 of tlie Civil Code, it is provided that an action of this character must be brought in the county in which the defendant, or either of several defendants, resides, or in which the contract is made, or in which the carrier agrees to deliver the property. It therefore^ follows that as appellant denied residence1 in Hardin county, and was not to deliver the property in that county, the circuit court did not have jurisdiction, unless, within the meaning of the Code provision, the contract was made in that county; for the cause stands as it would if appellees had sued the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company alone, without joining the Louisville & Nashville Railroad Company as a defendant.

The contract, which is on the form of the Louisville & Nashville Railroad Company, and signed by the agent of the company and by the. appellees, begins:

“Received by the Louisville & Nashville Railroad Company the following described live stock, to be transported in accordance with the terms and conditions of the contract entered into below:

“Tariff rate on this shipment from Sonora to/ Louisville is |32.00 per car.

“Contract for transportation of live Stock. Sonora, Ky.. Station, Dec. 28th, 1899. This agreement, made between the Louisville & Nashville Railroad Company audits connecting lines, of the first part, and Yiers and Patterson, or the second part, witnesseth,” etc.

Then follows a provision for transportation to Louisville-at the rate of $16 per car, and a release of liability beyond ihe Louisville & Nashville Railroad’s terminus.

Clause IB of the contract is as follows: ■“And it.is further agreed that, when necessary for said animals to be transported over the line or lines of any other carrier or carriers to the point of destination, delivery of such animals may be made to such other carrier or carriers for transportation upon such terms* and conditions as the carrier may be willing to accept; provided, that the terms and conditions of this bill of lading shall inure to such cariler or carriers, unless they shall otherwise stipulate, but in no event shall one carrier be liable for the negligence' of another.’’

Now appellant insists that this contract does not undertake to cover the transportation of the stock beyond Louisville; that its application is limited to the terminus of the Louisville A Nashville road at Louisville; that the charges stipulated did not cover any transportation beyond that point; that there is no agreement that the stock should go over the appellant’s road; that the agent at Sonora had no authority to contract for it, and never undertook to do so, and that no traffic arrangement or agreement existed or was shown which authorized the Louisville & Nashville Railroad Company to make a contract of this or any other kind, binding upon the appellant; that there was no express contract by the appellant regarding this shipment, but that it received the cattle from the Louisville Bridge Company, to which company they had been delivered by the Louisville A Nashville Railroad Company, transported them fo the nearest point on its line to the Union Stock Yards, at Indianapolis, and there delivered them to the Belt Railroad Company, which collected from the consignees freight at the rate of 10 cents per 100 pounds for the transportation over appellant’s line; that it received tlie cattle at Jeffersonville, as a common carrier, for shipment, it should carry the cattle safely to the point on its line nearest to the point of destination, and that appellee should pay the regular tariff rate for such shipment; (hat this implied contract had no relation whatever to 1he contract made by the Louisville & Nashville Railroad Company, and was not affected by it; that therefore the contract was not made* in Hardin county, and therefore the lower court had no jurisdiction to entertain the action. On the other hand, the appellees rely upon the recital in the contract that it was Avitli the Louisville & Naslmlle Railroad Company and its connecting lines; that a connecting carrier is one of scweral carriers whose* lines, or parts thej-eof,* unite to constitute a route over Avliich any particular shipment is to pass (Hutch. Carr., section 157); that interrogatory 6, attached to the petition and addressed to appellant, is as folloAvs: “(G) State whether or not on or about-December 28th, 1800, you had a traffic arrangement or any business arrangement with the Louisville & Nashville Railroad Company, under which you received freights brought into LouisAÚlle by it, destined and consigned to points along your lines north of tin; Ohio river; and, if so, state the nature of that arrangement, and ‘ state also whether this stock Avas received and transported by you under a general arrangement, or whether you made a special contract as to the transportation and delivery of these* cattle?” To Avhich appellant made the following response: “This defendant has no such arrangement with said company. Without any special or explicit arrangement, it receives traffic of said company, all of which must pass over the inteiwening tracks and bridge of the Louisville Bridge Company, and pay toll to that company. The stock in question came to this defendant from the Louisville Bridge Company, like any other shipment from a connecting carrier, destined to points on this defendant’s lines, without any previous arrangement or understanding or contract that it should do so; and this defendant never, until it received said stock at Clarksville, was under any obligation or contract respecting it. When it received the stock it' undertook to perform the duties of a carrier of live stock in transporting the stock to Indianapolis.”

Appellees contend that this response shows a ratification of the contract made for the connecting lines by the Louisville- & Nashville Railroad Company in Hardin county, and that this ratification is the equivalent of a previous direction, and renders appellant liable upon! the written contract as made in Hardin county. In support of this contention, the case of Railroad Co. v. Carrico, 95 Ky., 489 (16 R., 66) (26 S. W., 177) is relied on. In that case it appeared that the contract was> made with the Louisville & Nashville Railroad Company, “which undertook to transport the animals to Nashville, Tennessee, to be carried' from there by the latter company [the Nashville, Chattanooga & St. Louis Railway Company], which appears to either own, or have in its possession and control, a ■ continuous 'kne of railway to Atlanta. It is, in substance, alleged that the Nashville, Chattanooga & St. Louis Company agreed to transport appellant’s mules from Nashville to Atlanta, receiving therefor a proportion of the whole amount fixed in the contract with the Louisville & Nashville Company for the whole distance, but, by negligence of its agents in operating the train on which the animals were placed, they were greatly injured.” The action was dismissed as to the Louisville & Nashville Railroad Company, and the same question arose which is presented here,. under section 73 of the Civil Code. In that case the court states that the Louisville & Nashville Railroad Company, in making the contract, -was acting as the agent of the other company. It was there said: “But it seenisi to us the contract in this case, having been made • in Marion county by the Louisville & Nashville Railroad Company, acting as,appellant’s agent, must, in the meaning of that section, be regarded as made there by appellant itself. . . . The record, in our opinion, shows the existence of each of the conditions of jurisdiction of the Marion circuit court, and validity of a service of summons prescribed by the. Civil Code.” So, in the case of Railroad Co. v. Tabor (17 R. , 569) (32 S. W., 168) it was assumed by the court that the company which made the contract of shipment made it “under authority from appellant to contract for the carrying. of the cattle over appellant’s line.” In United States Mail Line Co. v. Carrollton Furniture Mfg. Co. (101 Ky., 658) (19 R., 833) (42 S. W., 342) the English rule as to the liability* of connecting carriers is discussed, and stated to be based upon the ground of want of privity of contract between the injured party and the connecting carrier; and, in denying the application of the English rule, Hutch. Carr., section 150, is quoted - with approval, as follows: “And the mere fact that the auxiliary carrier acts, in the transportation as the agent of the contracting carrier, and that there is no privity of contract between him and the owner of the goods, furnishes no legal reason why L>> may not be held liable to the owner for any loss which may arise either from negligence or misfeasance.” And in the case of Ireland v. Railroad Co. (105 Ky., 400) (20 R., 1586) (49 S. W., 188), the court is careful to state that “the connecting line, having entered its appearance, it also liable to the owner, if the damage occurred on its line.”

These seem to be all the cases in this State which bear even remotely upon the question here presented. The question here presented for decision has therefore never been decided in this State. While, as an original propositi on, it would seem that a contract, though made, in terms, not only for the benefit of the parties thereto, but for the benefit of a third person would neither bind nor benefit such person in the absence of an acceptance of its provisions, and that the mere receiving of goods by a connecting line, without anything to show information of the terms of of the contract made with the initial carrier, should not be held to be an acceptance of the terms of such contract, because the law requires the connecting carrier to so receive the goods, and what is done in obedience to a legal requirement ought not to be construed to create any implied contract, other than that which the law implies, the current of authority has led us to a different conclusion. It maybe conceded, however, that there is considerable authority for the proposition, that there is no implied contract other than that created by the law from the receipt of goods for transportation by a common carrier, whether such receipt is required by statute, or by the provisions of the common law. Railroad Co. v. Dwyer, 75 Tex., 572, 12 S. W., 1001, 7 L. R. A., 478, 16 Am. St. Rep., 926. Same v. Baird, 75 Tex., 256, 12 S. W., 667. And this has been held with special reference to the rate of freight contracted for by the initial carrier, which is held not binding, without showing some privity between the two carriers, or a knowledge'of the contract on the part of the connecting line. Wells v. Thomas, 27 Mo., 17, 72 Am. Dec., 229. See, also, note to this decision on page 242. And see Lawson Carr., section 244; Express Co. v. Harris, 120 Ind., 70, 21 N. E., 340, 7 L. R. A., 214, 16 Am. St. Rep., 315; Bancroft v. Transportation Co., 47 Iowa, 262, 29 Am. Rep., 483. As might be expected, most of the cases which bear upon this question arise upon claims of connecting carriers to the benefit of provisions of contracts with the initial carrier. It is 'quite difficult at times to determine the reason for the distinction made in the cases. As matter of course, if the contract is held binding- upon the connecting carrier, the stipulations must inure to its benefit. The obligation of the contract must be reciprocal. If the carrier is a party to the contract, and therefore bound under the contract, it must have the advantage of the stipulations whicli limit its liability, unless such limitation is forbidden. The carrier’s liability in such case is deduced from its ratification of the original contract. In this case, the Louisville & Nashville Company made the contract of shipment. It contracted on behalf of itself and connecting carriers, without stipulating what carriers should complete the transportation to the point of destination. It limited its own liability to such damages as should occur upon its own line. It also undertook to further limit its liability, and the contract provides that such limitations should inure to the benefit of connecting carriers. Although it is not shown that the Pittsburg, Cincinnati, 'Chicago & St. Louis Company had knowledge of these provisions, it must be charged with knowledge that the Louisville & Nashville Company received the cattle under some contract. Though, so far as the record shows, it did not know the terms of that contract, it could have ascertained ¡them, or it could have limited its own liability by the terms of the receipt which it gave for the cattle to the intermediate carrier, the Louisville Bridge Company, which received them from the Louisville & Nashville Company’s terminus, and delivered them to the Pittsburg, Cincinnati, Chicago & St. Louis Company. Having received the cattle without any such limitation, we are of opinion that, under the authorities, it must be assumed to have accepted them under the terms of the original contract. The ratification was the ratification of the contract made in Hardin county. It bound the shipper as if it had been signed in Hardin county by him and by the connecting carrier. When ratified, it bound the connecting carrier as if it had been there signed by it or its agent, and it became a contract made in Hardin county between appellees and the Pittsburg, Cincinnati, 'Chicago and St. Louis Railway Company. In Elliott, R. R. section 1446, the general doctrine is thus laid down, and a number of authorities' cited: '“If a connecting railroad company is designated as such in the initial carrier’s bill of lading, or if the bill provides that all stipulations shall-inure to the benefit of all the carriers, then, having accepted the goods thereunder without any separate agreement, it becomes virtually a party to the contract, bound by the undertakings therein, and benefited by the limitations. If, however, the connecting carriers are not designated, but are left to the initial carrier’s selection, and there is no provision that the stipulations shall inure to the benefit of any other carrier, the connecting carrier may not claim the benefit of the original contract, and when it accepts the. goods, it does so under the law. So, where the connecting carrier, on receiving the goods, gave a receipt containing definite provisions, it was held that, it thereby lost the right to avail itself of provisions for its benefit in the receipt given by the first carrier. And it has also been held that a connecting carrier can not be considered as ratifying the original contract, where, in receiving and transporting the goods, it merely does what a valid statute requires it to do.” In Halliday v. Railway Co., 74 , 41 Am. Rep., 311, it was said: “When a carrier undertakes to transport to a point beyond the terminus of its own line, or to a point not on its line, it will be responsible, according to the terms of the contract of shipment, if it contain no prohibited exemptions, for loss or injury occurring upon the connecting lines, as well as upon its own line; and the connecting earner will also- be responsible to ‘the shipper for its own fault- or negligence, and according to the terms of the shipper’s contract with the contracting carrier. The connecting carrier, by receiving the goods from the contracting carrier, becomes its agent for the purpose of completing its contract with the shipper: and where, as in t.hi,s casé, the contract of the shipper contemplates the employment of connecting lines, the ' law will imply from this circumstance sufficient privity between the shipper and the connecting carrier to enable the shipper to maintain an action against such carrier on the contract. . . . By simply accepting the stock from the receiver, Bond, to be transported to St. Louis, the defendant became entitled to claim the benefits of all valid exceptions he had made with the shipper. Lawson Carr., section 243.” And in Express Co. v. Harris, supra, the court, distinguishing the case before it, said: “If the appellant had been designated in the contract with the first carrier as one of the intermediate carriers, or if the contract had provided that its stipulations should inure to the benefit of all the carriers, then the contention of the appellant would find strong support from the authorities. Express Co. v. Harris, 51 Ind., 127; Railroad Co. v. Weakly, 50 Ark., 397, 8 S. W., 134, 7 Am. St. Rep., 104; Halliday v. Railway Co., 74 Mo., 159, 41 Am. Rep., 309; Evansville & C. Railroad Co. v. Androscoggin Mills, 22 Wall., 594, 22 L. Ed., 724; Maghee v. Transportation Co., 45 N. Y., 514, 6 Am. ; Lamb v. Transportation Co., 46 N. Y., 271, 7 Am. Rep., 327.” And see, also, Evansville & C. Railroad Co. v. Androscoggin Mills, 22 Wall., 594, 22 L. Ed., 724; Fairbank v. Railway Co. (C. C.), 66 Fed., 471. In Railroad Co. v. Weakly, 50 Ark., 397, 8 S. W., 134, 7 Am. Rt. Rep., 111, it was- held: “The appellant, by receiving the stock, became tlieir agent to complete their contract to the extent of shipping-the stock over so much of its road as formed a part of the route over which the shipment "was to be made. From this fact the law implied a privity between the parties to this action sufficient to enable appellees to sue appellant for any losses sustained by reason of its failure to perform the contract, and gave to appellant the benefit, of all valid limitations contained in the agreement upon the carrier’s liability. So that, while the burdens were imposed, the benefits of the limitations in the contract inured to appellant. Taylor v. Railroad Co., 39 Ark., 148-158; Halliday v. Railway Co., 74 Mo., 159, 41 Am. Rep., 309, 6 Am. & Eng. R. Cas., 433; Hutch. Carr., sections 251, 252, 254, 256.”

For the reasons given, the judgment is affirmed

Whole court sitting.

Petition by appellant for rehearing overruled.