99 Tenn. 719 | Tenn. | 1897
Bird, Dew & Hale, of Powell’s Station, Tenn., consigned a box of fruit trees, by
The contract of shipment was made between the shippers and the initial carrier, and was for through transportation from the receiving point to destination. The printed form of contract, or bill of lading, then in use by that carrier, contained the provision that, ‘'in case of loss, damage, detriment, or delay, that road in whose actual custody the goods were at the time of such loss, damage, detriment, or delay, shall
The jury’s verdict resolved the issue in favor of this carrier, and is conclusive in this Court of the proposition that the controverted clause was really in the bill of lading when delivered.
The, first carrier had the legal right, at its election, to undertake the transportation of the goods to the terminus of its own line merely, or to their ultimate destination. It was -under no legal obligation, in the first instance,, to transport them beyond the end of its own line, and, for that reason, it was authorized in law, when contracting for through transportation, to limit its liability by the clause mentioned. Transportation Co. v. Bloch Bros., 86 Tenn., 415; Railroad Co. v. Brumley, 5 Lea, 401; Dillard Bros. v. Railroad Co., 2 Lea, 288; Telegraph Co. v. Munford, 87 Tenn., 190; 4 Elliott on Railroads, Sec. 1432; Lawson Con. Cars., Sec. 236; Schouler’s
The trial Judge, in his instruction to the jury concerning the effect of that clause in the bill of lading, if proven, erroneously limited its advantage to the initial carrier, and improperly denied the intermediate carrier the benefit of it in any event.
The contract made by the shippers and the initial carrier having been for through transportation over a particular and designated route, such of the other companies in that route as may have accepted the goods under that contract, became subject to its legal liabilities and entitled to its legal exemptions, the same as the initial carrier. Schouler says: “Where the freight contract is for through transportation, but not otherwise, each connecting carrier, as a rule, will be entitled to the benefits and exemptions of the contract made by the shipper and the first carrier.” Schouler’s Bail. & Cars., Sec. 604, p. 637. “If a connecting railroad company,” observes Elliott, “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 undertaking therein, and benefited by the limitations.” 4 Elliott on Railroads, Sec. 1446.
The statement of another author is as follows: “A bill of lading may provide that its stipulations.
Hutchinson uses this language: “Hence it follows that whenever the carrier is bound by his contract or by law to carry the goods to the place of their consignment, all carriers who engage in the transportation for any portion of the route are entitled to all protection which the first carrier has secured by his contract with the shipper.” Hutchinson on Cars. (2d Ed.), Sec. 273.
Our holding that the intermediate carrier now before the Court was entitled, under the facts stated, to the benefit of the first carrier’s contract, is sustained, likewise, by the adjudged cases, some of which are cited : Holliday v. St. L., K. C. & No. Ry. Co., 74 Mo., 159 (S. C., 41 Am. Rep., 309); St. L. & I. M. Ry. Co. v. Weakley, 50 Ark., 396 (S. C., 7 Am. St. Rep., 104); Maghee v. C. & A. R. R. Co., 45 N. Y., 514 (S. C., 6 Am. Rep., 124); Railway Co. v. Sharp (Ark.),
The same principle was recognized, though held inapplicable, in McMillan v. Mich. So. & No. Ind. R. R., 16 Mich., 79 (S. C., 93 Am. Dec., 208); Adams Express Co. v. Harris (Ind.), 7 L. R. A., 214; Babcock v. Railroad, 49 N. Y., 491.
This Court indirectly approved the rule in M. & C. R. R. Co. v. Holloway, 9 Bax., 188; L. & N. R. R. Co. v. Campbell, 7 Heis., 253; Deming v. Merchants’ Cottonpress Co., 90 Tenn., 307; Railroad Co. v. Manchester Mills, 88 Tenn., 653; Lancaster Mills v. Merchants’ Cottonpress Co., 89 Tenn., 2.
Nothing else appearing, the intermediate carrier would, undoubtedly, be entitled to a reversal for the error indicated. There is, however, another important aspect of the case, whose proper consideration requires an additional statement of the facts. The contract of shipment was made and the journey commenced on the 6th of November. The trees were delivered by the intermediate carrier to the ultimate carrier six days later ; but, on receiving them, the ultimate carrier “immediately” informed the intermediate carrier that George’s Creek, the point of destination, was a “prepay station,” and, therefore, that the trees would not be forwarded until all freight charges should be paid. With this
These facts fix great negligence upon the intermediate carrier and justify the. verdict against it. Its delivery of the trees was not complete in a legal sense, and, hence, did not terminate its responsibility under the contract. The acceptance by the ultimate carrier was' conditional only, and the condition was distinctly stated . at the time. The ultimate carrier was under no legal obligation to concur in the contract as made by the initial, and adopted by the intermediate carrier. It declined to do so, and its declination was conclusive. Thereupon, the intermediate carrier at once became charged with the positive duty of giving immediate notice to the initial carrier or the shippers, if not with that of advancing the charges itself. It did neither, and, by its dereliction in that regard, became liable for the delay of the trees and their consequent devital-ization and worthlessness.
The disputed clause in the bill of lading, though rightfully available to the intermediate carrier in its proper scope, as has been seen, did not cover this
A ‘ ‘ prepay station ’ ’ is one at which the carrigr delivers freight to the consignee directly and without the intervention of a local agent, and to which consignments are accepted alone upon the condition that all charges for transportation be prepaid by the shippers. By its contract for through transportation without prepayment of charges, the initial carrier in the present case impliedly represented to the shippers that George’s Creek, to which the trees were destined, was not such a station, and virtually assured them that no demand of charges would be made before the ultimate destination was reached; and, by receiving the goods under that contract, the intermediate carrier impliedly made the same representation and gave the same assurance. Both thereby became bound to see
In the Court’s charge to the jury the plaintiffs were denied any benefit of this latter aspect of the case as against the initial carrier. This denial affords ground of reversal. The provision against liability for the default of other carriers did not affect this carrier’s obligation, nor that of the intermediate carrier, in relation to the other matter just considered.
For the reasons indicated, the judgment of the lower Court is affirmed as to the intermediate carrier, and reversed and remanded > for a new trial as to the initial carrier.