Taffe v. Oregon Railroad

67 P. 1015, 41 Or. 64, 1902 Ore. LEXIS 56

Opinions

Mr. Justice 'Wolverton,

after stating the facts, delivered the opinion of the court.

Two errors were assigned; one relating to the court’s action in sustaining the demurrer to the separate defense, and the other in rejecting, as immaterial and irrelevant, the latter clause of said stipulation, both of which present but a single question; that is, whether the contract or agreement relied upon by plaintiff, and which is admitted by both parties to be the only one entered into with reference to the transportation of the car of salmon, is an undertaking on the part of the defendant to carry it to Huntington only, and deliver it to its connecting line, or to carry it through to Fulton Market, New York City. The contract, like others, must-be construed by looking through the whole instrument, and in the light of the circumstances attending the transaction and its execution by the parties concerned. The law applicable to the simple receipt or acceptance of goods by common carriers, directed or consigned beyond the line of the carrier, by the conceded weight of American authority, requires them to be transported to the terminus of its lines, and there delivered to a connecting carrier to be forwarded to their destination, and with this the responsibility ceases. This is the doctrine of the Supreme Court of the United States and a large majority of the state courts: Hutchinson, Carr. § 149; 4 Elliott, Railroads, §§ 1432, 1435; Gray v. Jackson, 51 N. H. 9 (12 Am. Rep. 1); Hoffman v. Cumberland R. Co. 85 Md. 391 (37 Atl. 214); Michigan Cent. R. Co. v. Mineral Springs Mfg. Co. 83 U. S. (16 Wall.) 318; St. Louis Ins. Co. v. St. Louis, T. H. & I. R. Co. 104 U. S. 146; Myrick v. Michigan Cent. R. Co. 107 U. S. 102 (1 Sup. Ct. 425); Taylor v. Maine Cent. R. Co. 87 Me. 299 (32 Atl. 905); Dunbar v. Port Royal & A. Ry. Co. 36 S. C. 110 (15 S. E. 357, 31 Am. St. Rep. 860); Ortt v. Minneapolis & St. L. R. Co. 36 Minn. 396 (31 N. W. 519); Rickerson Roller Mill Co. v. Grand Rapids & I. R. Co. 67 Mich. 110 (34 N. W. 269); McEacheran v. Michigan Cent. R. Co. 101 Mich. 264 (59 N. W. 612); Hoffman v. Union Pac. R. Co. 8 Kan. App. 379 (56 Pac. 331). “A railroad company is a carrier of goods for the public, ’ ’ says Mr. Justice Field in Myrick v. Michigan Cent. R. Co. 107 U. S. 102 (1 Sup. Ct. 425), “and as such is bound to carry safely whatever goods are intrusted to it for transportation, within the course of its business, to the end of its route, and there deposit them in a suitable pl^ce for their owners or their consignees. If the road of the company connects with other roads, and goods are received for transportation beyond the termination of its own line, there is super- added to its duty as a common carrier that of a forwarder by the connecting line; that is, to deliver safely the goods to such lines, the next carrier on the route beyond. This forwarding duty 'arises from the obligation implied in taking the goods for the point beyond its own line. The common law imposes no greater duty than this. If more is expected from the company receiving the shipment, there must be a special agreement for it.”

By the English rule, and by the doctrine of some of the courts of this country, such a receipt of goods for transportation, without else to indicate the intent of the parties concerned, implies, prima facie, an undertaking or contract upon the part of the carrier to convey them to the point of destination, as indicated by the direction or consignment, whether the carrier owns or controls all the lines of transportation in the route of their travel or not: Hutchinson, Carr. §§ 146, 147; 4 Elliott, Railroads, § 1435. The disinction between the two rules is that by the former the duty implied is to carry the goods to the end of the receiving carrier’s line, and there to deliver them to the next carrier in the route, to be forwarded thereby [Michigan Cent. R. Co. v. Mineral Springs Mfg. Co. 83 U. S. (16 Wall.) 318]; while by the latter the duty implied is to carry them through to their destination. The engagement, of course, may be varied in either case by express contract, or the circumstances attending the shipment may raise a different obligation by implication: and thus, in order to exempt the carrier beyond its own lines, under the English rule, there must be an express or implied limitation or restriction of primary liability; and to enlarge the liability, under the American rule, there must be an express or implied understanding to that effect, aside from the mere receipt of the goods destined to a point beyond the route of its own authority. The so-called American rule is perhaps better grounded in equal justice towards the shipper and carrier, and in public policy, and is therefore preferable upon principle, as well as by the preponderance of American authority.

Both the parties to the shipment were cognizant of the fact that defendant’s line of railroad extended no further east than Huntington. This is admitted by the averments in the separate defense, which must be taken as true as against the demurrer, and by the stipulation entered into relative to the facts attending the controversy; and it must be supposed that the contract was entered into in view of the legal rights of the shipper and carrier. As the bill of lading contains the whole contract, and does not depend for substantiation upon the proof of extraneous facts or circumstances, the controversy is resolved into a question of construction, which is solely for the court to determine. Plaintiff’s counsel submit that, by a proper construction of the contract, it should be made to read as follows: “The Oregon Railroad & Navigation Co., has on this 17th day of September, 1898, received from I. H. Taffe, at Celilo, Oregon, one F. G. E. car, No. 14685, containing nine and one half tons of fresh salmon, consigned to Chesebro Bros., Fulton Market, New York City, which it agrees, in consideration of the freight to be charged therefor, to transport without unnecessary delay, by the fastest passenger train service, to Fulton Market, and there deliver the same to the consignee.” Such a rendition, it is insisted, is the reasonable deduction to be made from the manner in which the contract was drawn, and the particular kind of service to be afforded. Referring to the bill of lading, it will be noted that the blank following the words “to be transported to” is left unfilled, and the words! ‘ on fastest passenger train service ’ ’ are written, which allows them to stand in preference to printed matter. As to the blank, it is apparent from an inspection of the instrument what was intended to be inserted. There is a direction immediately beneath not to insert points not on the line of this system; so that its manifest use was for points on the line of the Oregon Railroad & Navigation Co.’s transportation system, and could not serve the purpose of inserting any point of destination beyond its lines. And there is no particular significance to be attached to the fact that the blank was not supplied, as it cannot be assumed, in the absence of evidence respecting the point intended to be inserted, and in direct contravention of the instruction on the face of the instrument itself, that it was intended for the place of final destination. The omission, therefore, must be regarded as clerical in character, and affords no suggestion of significance for construction: Myrick v. Michigan Cent. R. Co. 107 U. S. 102 (1 Sup. Ct. 425); Rickerson Roller Mill Co. v. Grand Rapids & I. R. Co. 67 Mich. 110 (34 N. W. 269); Phillips v. North Carolina R. Co. 78 N. C. 294; Ortt v. Minneapolis & St. Louis R. Co. 36 Minn. 396 (31 N. W. 519); Hoffman v. Union Pac. R. Co. 8 Kan. App. 379 (56 Pac. 331). A further reading of the first clause makes it more apparent that the place of destination, where beyond the lines of defendant’s system, was not intended, for there is inserted parenthetically a clause, in effect, that, if such freight is to be forwarded beyond the lines of the company, then it is to be delivered to such company or carriers whose line may be considered a part of the route to the place of destination; and thus does the contract, by.its very terms, read into it the law as we have ascertained it to be when the shipment is to a point beyond the lines of the company receiving the goods for carriage, — containing simply a direction denoting the place of consigmnent. The particular kind of service to be rendered was transportation “on the fastest passenger train service.”

The stipulation must certainly prevail to its fullest import, but what is its significance? Looking upon the face of the bill of lading, we find by the first clause that the goods "were received of Taffe, “marked and consigned as noted below,” and the written pai’t denotes a consignnient ‘ ‘ as above, ’ ’ and in either instance the reference is to the direction, “Chesebro Bros., Fulton Market, New York City,” so that the consignment is nothing more than the ordinary one of designation by direction of the place of destination, without restriction or enlargement. This brings us to the especial and emphatic contention of counsel, which is that the service contracted for was a special one; that is to say, that the company agreed to cany a perishable quality of freight by fastest passenger train service, and, being a service that neither it nor any con necting road was required or obliged, to perform, that therefore it must be presumed plaintiff contracted for through transportation. We are not satisfied that-such conclusion follows. Plaintiff, by the allegations of his complaint, has, in effect, made the defendant, at least, if not all connecting lines, a common carrier of the kind of freight thus offered, and in the manner designated; for it is averred that, “when requested to do so by shippers, it was the custom and practice of the said defendant, as such common carrier, in consideration of the payment of the sums charged therefor by the defendant, over and above the amount charged for ordinary freight transported by freight trains, to receive perishable freight in refrigerator cars, requiring speedy transportation, and to attach such cars containing such freight to, and transport the same over said line and connecting lines by and as a part of, said passenger trains, to the said city of New York.” This allegation is admitted by the answer, except as there is any implication of the practice or custom on the part of the defendant to accept and carry such freight in the manner designated to the City of New York, or any point beyond its lines. Under the conditions thus existing, the plaintiff has made the defendant, at least, a common carrier 'of fresh salmon, in the manner described, for it could reject no freight of a like kind for like transportation by fastest passenger train service: 4 Elliot, Railroads, §§ 1474,1475; Beard v. Illinois Cent. R. Co. 79 Iowa, 518 (44 N. W. 800, 7 L. R. A. 280, 18 Am. St. Rep. 381); International & G. N. R. Co. v. Young (Tex. Civ. App.) 28 S. W. 819; North Penn. R. Co. v. Commercial Nat. Bank, 123 U. S. 727 (8 Sup. Ct. 266).

Now, are we to assume that the defendant is the only company that is a common carrier in that sense, or would it be more reasonable to assume that, by reason of the fact that it was willing to accept goods of the kind to be carried by a rapid service, its connecting roads are doing the same thing? If it was once conceded that its road was the only one conveying the special kind of freight on the particular condition, the presumption might be said to follow, without more, that it was the intendment to contract for carriage to destination; otherwise the freight would not have been received. But such is not the ease here, and we would rather incline to the view that the parties contracted with reference to the preferable assumption that other connecting lines were customarily engaged in like freight traffic, and were therefore bound to the same service when like freight is offered. But whether the freight was received to be transported as by a common carrier or in a private capacity, there must be an express or implied undertaking to carry beyond the lines of the carrier first receiving the goods for transportation, and such a one is not deducible from the contract relied upon. The stipulation contained upon the back, and expressly made a part of it, also lends support to this view. The expression “on the fastest passenger train service” is simply a designation as to how the freight should be carried, being the kind of service contracted for, which language is employed with reference to the car of fresh salmon “consigned as above.” It does not indicate an intendment of carriage to destination any stronger than if it had read “on ordinary freight train service;” so that the agreement on the back should be accorded the same weight that it would have if the contract was one with reference to the receipt of ordinary freight, to be carried in the ordinary way. The stipulation referred to is that “the company will not be responsible or liable for any loss, damage, or injury to property, except upon its own lines, and will not be responsible for any loss, damage, or injury to property after the same shall have been tendered to any connecting carrier or freight man for further transportation, ’ ’ so that, construing the contract as a whole, in the light of the circumstances and conditions under which it was entered into and executed, it must be held to be an undertaking to carry to Huntington, and there deliver in good order to the Oregon Short Line Railroad Co., the next connecting line. True, an ordinary freight bill of lading was used, but it is reasonable to suppose that it would not have been used if it had not been considered appropriate to evidence the true nature of the contract.

Decided 21 April, 1902.

We have not overlooked the case of Colfax Mount Fruit Co. v. Southern Pacific Co. 118 Cal. 648 (50 Pac. 775, 40 L. R. A. 78). That case, however, turns upon the interpretation of the meaning of the word “forward,” which was used in three different and distinct clauses of the contract; and, it having been necessarily used in two of them in the sense of “to carry,” it was quite logically held to have been employed in a like sense in the other clause, so the contract was interpreted as an undertaking to carry to destination, and this upon the face of the instrument itself. The case could not, therefore, be controlling. From these considerations, the judgment of the trial court will be reversed, and the cause remanded for such further proceedings as may seem proper, not inconsistent with this opinion. Reversed.