159 N.W. 81 | N.D. | 1916
Lead Opinion
This is an action to recover damages for certain wheat which plaintiff asserts he delivered, and defendant as a common carrier received,'for the purpose of transportation; and which wheat, plaintiff asserts, was lost by reason of the negligence of the defendant and its employees, while in the possession and under the control of the defendant. The case was tried to a jury; a verdict was
The principal question presented on this appeal is whether plaintiff’s cause of action was established. This question in turn involves :a consideration of the issues raised by the pleadings and the admissibility of evidence thereunder.
Plaintiff’s complaint alleges:
“1. That the defendant, at all of the times hereinafter mentioned, was, and since said dates has been and now is, a foreign corporation ■organized and existing under and by virtue of the laws of the state of Minnesota, and engaged in the owning, operating, and running of .a line of railway from the city of Minneapolis, Minnesota, to Portal, North Dakota, as well as a line of boats on Des Lacs lake, a small inland waterway, extending from Kenmare, North Dakota, a small ■distance into the Province of Saskatchewan, Canada, and as such railway corporation engaged as a transportation company and inland ■common carrier of freight and passengers.
“2. That between the 25th day of September, 1910, and the first day of November of the same year, the defendant received from the plaintiff twelve (12) cai’loads of bulk wheat for transportation, eight (8) carloads of which were to be transported from points in North Dakota, to points in another state, and four (4) carloads of which were to be transported from Boscurvis, Saskatchewan, Canada, in through North Dakota, to points in other states; that for each of said ■shipments the defendant issued, signed, and delivered to the plaintiff a bill of lading; that plaintiff was and is the owner and consignor of all of such grain; that during its transportation the plaintiff did not accompany such grain or shipments, nor did he retain, or attempt to retain, or exercise any pontrol over it whatsoever, but from the time of the shipments of such grain from the different shipping' points the defendant, its agents, and servants had full and exclusive control thereof.
“3. That at Kenmare, North Dakota,. between the dates herein-before mentioned, while such grain was being transported according to the contract between plaintiff and defendant, and while it was in the possession and under the exclusive control of the defendant, its .servants, employees, and agents, it became necessary, in order to com
“4. That no part of the said one thousand bushels (1,000) of bulk wheat delivered by plaintiff to defendant- for transportation as hereinbefore alleged and dumped in said lake has ever been delivered by defendant to the consignees of said grain, nor has it or its value, or any part thereof, ever been delivered to or accounted for by defendant to the plaintiff although often demanded previous to the commencement of this action.
“Wherefore, plaintiff prays judgment against the defendant for the sum of nine hundred and forty dollars ($940) with interest thereon at the rate of 1 per cent per annum (7%) from and after the first day of November, 1910, together with his costs and disbursements of this-action.”
The answer admitted defendant’s corporate existence, and also admitted that during the times mentioned it owned and operated a line-of railway extending from the city of Minneapolis in the state off Minnesota to Portal in the state of North Dakota, but expressly denied all other allegations of the complaint.
The following facts were indisputably established by the evidence in this case: That the plaintiff, during the fall of 1910, opex-ated certain grain elevators at Newport and Paisley, North Dakota, and Boscurvis, Saskatchewan, all being situated on the shores of Des Lacslake. That such lake points wei*e all situated a considerable distance away from any railway line owned or operated by the defendant. That.
The defendant railway company published a schedule of freight tariffs of 22 cents per hundredweight for shipments of wheat between the above-mentioned lake points and Minneapolis and Duluth respectively. By an agreement between the navigation company and 'the defendant railway company it was provided that the navigation company should receive 5 cents per bushel (for wheat and certain other kinds of grain) as its proportionate share of such through tariff, and the railway company the balance.
(The proper division of such joint or through rate between the defendant railway company and the navigation company was one of the questions discussed in Knapp v. Minneapolis, St. P. & S. Ste. M. R. Co. 33 N. D. 291, 156 N. W. 1019. While this question is of no particular moment in the instant case, it may be stated that the evidence-in this case is all to the effect that the navigation company was to receive 5 cents per bushel, for' wheat and certain other kinds of grains, of such through rate.)
The apparatus for transferring the grain from the navigation company’s boats to the defendant’s cars at Smith’s (landing) was also owned by the navigation company. The entire equipment of the navigation company was owned solely by such company, and the defendant railway company owned no part thereof. The men who operated the boats
During September and October, 1910, the plaintiff shipped certain wheat from his elevators at the three lake points above-mentioned. Such wheat was transported upon the barges of the navigation company from the different lake points to Smith’s (landing), where it was transferred from the barges and loaded upon the cars of the defendant railway company, and forwarded to its' destination. Neither the navigation company nor the railway company had any agents at the lake points, nor were any bills of lading issued by the navigation company for any of the shipments. But after the grain had been loaded upon the defendant’s cars at Smith’s, the plaintiff or some one acting for him billed such shipments and received from the defendant’s agent at Kenmare bills of lading therefor. It is conceded, however, that no bill of lading Avas ever issued by the defendant for any shipment until after the grain actually had been loaded into the cars of the defendant railway company at Smith’s (landing), and the different bills of lading issued by the defendant described by number the particular car in which such grain had been loaded.
The original bills of lading were not produced upon the trial, but plaintiff offered in evidence certain receipts or memoranda, which, it is asserted, contain all the provisions embodied in the original bills of lading. Such receipts or memoranda show shipments as follows:
September 29, 1910, two carloads from Boscurvis, Saskatchewan, to Kingston, Ontario;
October 13, 1910, two carloads from Paisley to Minneapolis;
October 22, 1910, two carloads from Newport to Duluth;
October 27, 1910, two carloads from Newport to Duluth;
October 29, 1910, two carloads from Newport to Duluth.
The face of the receipt for the first shipment reads as follows:
For use in connection with the Standard form of Straight Bill of Lading approved by the Interstate Commerce Commission by Order No. 787 of June 27, 1908.
Des Lacs Lake Navigation Co.
Minneapolis, St. Paul, & Sault Ste. Marie By.
Shippers No.........
This Memorandum is an acknowledgment that a bill of lading has been issued Agents No.......... and is not the Original Bill of Lading, nor a copy or duplicate, covering the property named herein, and is intended solely for filing or record.
Beceived subject to the classifications and tariffs in effect on the date of the receipt by the carrier of the property described in the Original Bill of Lading.
at Boseurvis, Sask., Sept. 29, 1910, from D. C. Knapp, the property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown), marked, consigned and destined as indicated below, which the Minneapolis, St. Paul, & Sault Ste. Marie Bailway Company agrees to carry to its usual place of delivery at said destination, if on its road, otherwise to deliver to another carrier on the routé to said destination. It is mutually agreed, as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time interested in all or any of said property, that every sendee to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained (including conditions on back hereof) and which are agreed to by the shipper and accepted for himself and his assigns.
to...................... is in cents per 100 lbs.
Consigned to Barnum Grain Co................................
Destination Kingston,......State of Ont.....County of........
Koute c/o Great Northern Elev. Co. Superior, Wis. Car Initial Soo,. Oar No. 25,636.
' Ña ’
Packages Description of Articles and Special Marks Weight
Wheat 60000
Bonded Capacity
D. C. Knapp, Shipper. Agent'.
Per.............. Per
Among the conditions appearing on the back, and made part of such receipt, were the following: “Section 2. In issuing this bill of lading this company agrees h> transport only over its own line, and except as otherwise provided by law acts only as agent with respect to the portion of the route beyond its own line. No carrier shall be liable for loss, damage, or injury not occurring on its own road or its portion of the through route, nor after said property has been delivered to the next carrier, except as such liability is or may be imposed by law, but nothing contained in this bill of lading shall be deemed to exempt the initial carrier from such liability so imposed. Section 5. . . . Property destined to or taken from a station, wharf, or landing at which there is no regularly appointed agent shall be entirely at risk of owner after unloaded from cars or vessels or until loaded into cars or vessels, and when received from or delivered on private or other sidings, wharves, or landings shall be at owner’s risk until the cars are attached to, and after they are detached from, trains.” The receipt is a printed form used by the defendant railway company, but the words, “Des Lacs Lake Navigation Co.,” appearing at the top are in writing, and were written at the same time the blanks in the body of
Upon the trial plaintiff was permitted to testify (oyer objection) to an alleged conversation, or conversations, between himself and one Cole, whom plaintiff asserts was a soliciting or traveling freight agent ■of the defendant. Plaintiff claims that he first learned of the elevators .at the three lake points through Mr. Cole; that Cole informed him that they were good points; and that Cole quoted him a rate of 22 •cents per hundredweight from the lake points to Minneapolis or Duluth, grain to be shipped over the Soo line; that plaintiff agreed to .go down and look the proposition over and afterwards went to Ken-mare for the purpose of doing so and made a trial trip on the boat.
The record shows that the following colloquy took place between the •court and plaintiff’s counsel at the time this evidence was first offered:
The Court: What is the object of this examination?
Mr. Lambert: The object is to simply show that the Soo Kailroad ran that line of boats over there, made the contract, got him to g’o over there, went up and showed him the—
The Court (interrupting counsel) : The object is to show agency, isn’t it ?
Mr. Lambert: We figure we have the agency established, we want to show the Soo line operated that line of boats over there.
On the presentation of defendant’s case, the defendant, among •others, offered the testimony of one Von Neida, the secretary of the Des Lacs Lake Navigation Company, and it was clearly and indisputably shown that the defendant railway company in no manner ■owned or operated the boat line, and in fact had absolutely nothing to do with it, but that the boat line was owned and operated wholly by the Des Lacs Lake Navigation Company. Mr. Von Neida also
Von Neida’s testimony was afterwards stricken out by the court. But the plaintiff Knapp was afterwards called, and testified in rebuttal as a witness in his own behalf, in part as follows:
Q. Now this trip that Mr. Von Neida testified about your going up the lake with him, that was after you had had your first conversation with Mr. Cole, was it?
A. Yes, sir.
Q. What happened between you and Mr. Cole after that ?
A. Mr. Cole came to Portal and called me over by phone, and I told him then that the proposition did not look very good to me, and he assured me that the Soo Line would take care of me. They had expended a great deal of money, and there was no question but the thing would go well, and I told him if he would guarantee it I would go ahead.
A. Yes.
Objections were interposed by defendant’s counsel to the testimony relative to such conversations. The defendants also moved for a directed verdict at the close of plaintiff’s case, and at the close of all the testimony. Both motions were denied and the cause submitted to the-jury. In its instructions to the jury the trial court said: “Gentlemen of the Jury, this case resolves itself first into a question of just what the contract was between the plaintiff and defendant with reference to the hauling of this grain, whether it was a contract that defendant should take and carry this grain from these different lake ports,, Boscurvis, Newport, and Paisley, and transport it to destination, or whether they simply agreed or were to take it from the place where it was unloaded from the vessels onto the cars, as to what the contract was between Mr. Knapp and the railroad.
“Now Mr. Knapp claims that the contract was, they were to take the grain and become good for it or responsible for it from the time that it left the lake ports; while on the other hand the defendant claims they had nothing to do with the grain while it was on the lake at all, and that they had nothing to do with it until they received it on board' their cars near Kenmare, North Dakota, and until they actually took possession of the cars themselves while putting the cars into their train.
“Mr. Knapp, you will remember claims that Mr. Cole was the agent of the Soo line, and he claims that Mr. Cole came up to Portal to see him about this very matter, and made representations to him, and as to-what the evidence is on that point you will remember. . . .
“Of course if Mr. Cole was not the agent of the railroad company to make the contract with the plaintiff to carry this grain, he would have no power whatever to bind the defendant in any manner. If he-did not have pow7er or authority to make that sort of a contract, even though he might have been the company’s agent for some other purpose,
“In addition to that (general verdict) I am going to submit to you three special findings: First. What was the value of the grain
“Second. Was W. A. Cole the agent for the defendant company for the purpose of malting a contract with the plaintiff to carry the grain from Newport, Paisley, and Boscurvis to destination.
“Third. Did W. A. Cole make a contract with the plaintiff to carry .said grain from said towns to destination.
“In addition to your general verdict you will answer those three ■questions.”
The jury returned affirmative answers to interrogatories numbered 2 and 3, and fixed the value of the wheat lost in answer to interrogatory No. 1, and also returned a general verdict for $853.50. Judgment was entered pursuant to the verdict, and the defendant has appealed from the judgment.
The principal errors assigned are based upon the rulings of the trial court in tire admission of certain testimony relative to the alleged ■conversations between the plaintiff and Cole, and the denial of the motions for a directed verdict.
Plaintiff sought to establish defendant’s liability by the following ■evidence: (1) The receipts for the shipments issued by defendant’s agent at Kenmare. (2) Proof of certain conversations with defendant’s agent Cole. And in their final analysis, the various assignments ■of error resolve themselves into, and require a determination of, these questions: (1) Did the receipts offered in evidence establish the fact that the defendant railway company received the wheat as a common carrier at the lake points, and hence was responsible for the proper transportation thereof-from such lake points? (2) Was plaintiff entitled to introduce evidence tending to show, and recover upon the strength of, a prior parol contract with an agent of the defendant railway company, binding it to be responsible for the safety of such wheat while it was being transported by a preceding connecting carrier ? We will discuss these propositions in the order stated.
There is no contention on the part of the plaintiff that any of the .grain was lost after it had been loaded upon the cars of the defendant railway company. It is conceded that the grain, for the loss of which plaintiff seeks to recover herein, was lost on account of some defect .in, or improper operation of, the appliances used by the navigation
There is no controversy as to the facts with respect to the issuance of the shipping receipts. It is conceded that in -every instance such shipping receipts were issued by the station agent at Kenmare, only after the wheat had actually been loaded upon the different cars of the defendant railway company described in the various shipping bills. There is no claim made, or evidence offered to show, that the station agent at Kenmare had any authority, either actual or ostensible, except such as his employment as station agent conferred upon him. Plaintiff’s contention that the shipping receipts show a contract on the part of the defendant railway company to transport the wheat from the lake points rests primarily on the fact that the shipping receipts recite that the wheat was received at Newport, Paisley and Boscurvis, respectively.
"While, ordinarily, a common carrier does, or even may be required to, issue bills of lading for goods delivered to it for transportation, yet, in the absence of a statutory rule on the subject or express stipulation between the parties affecting the conclusiveness thereof, the issuance of a bill of lading does not render a carrier liable unless, or until, the property described therein is delivered to it for transportation. Conversely it may be stated that the carrier is not relieved from liability because it has not issued a bill of lading for property actually delivered to and accepted by it for transportation. In short the existence or nonexistence of primary liability on the part of the carrier does not depend upon whether a bill of lading has been issued, but
The common carrier’s duties and obligations with respect to the transportation of property commence with its delivery to and acceptance by him for that purpose. The point of time marking the carrier’s liability is therefore that moment when the shipper surrenders the entire custody of his goods, and the carrier receives complete control of them, for the purpose of shipment. The duty and obligation respecting the care and safety of such goods rests wholly either upon the owner of the goods or upon the carrier. The law recognizes no division of such duty or obligation. Until it has become placed upon the carrier by a delivery to and acceptance by him, he cannot be held responsible, but the responsibility rests upon the owner; after the delivery to the carrier is complete he alone is responsible, and no duty or obligation rests upon the owner. 4 R. C. L. 688, 690; Hutchinson, Carr. 3d ed. § 105; 6 Cyc. 412, 414; Michie, Carr. § 400. An owner who delivers, and a carrier who accepts, property for transportation, delivers or accepts the same subject to the duties and obligations imposed by law. The only way in which such duties or obligations can be varied, limited, or extended is by special contract between the parties. 5 Am. & Eng. Enc. Law, 187; 4 R. C. L. 695; Michie, Carr. § 407. This rule is in harmony with and recognized by § 6212, Compiled Laws, 1913, which reads: “A bill of lading does not alter the rights or obligations of the -carrier, as defined in this chapter unless it is plainly inconsistent therewith.” But, although not conclusive upon the parties, still a bill of lading issued by an authorized agent of a canier is always competent (and generally prima facie) evidence, tending to prove that the property therein described was delivered to such carrier for shipment, Michie, Carr. § 411; 5 Am. & Eng. Enc. Law, 188.
Ruling Case Law (4 R. C. L. 695), states the rule to be as follows: “A bill of lading or other receipt is not ordinarily essential to a complete delivery, but as such an instrument is merely evidence that the carrier has received possession of the property, this fact may be shown by any other legitimate evidence. Conversely, it may be stated that
The shipments involved in this action were all interstate shipments, and hence within, and controlled by, the provisions of the Acts of Congress relative to Interstate Commerce in so far as such acts are applicable. Southern P. Co. v. Crenshaw, 5 Ga. App. 75, 63 S. E. 865; State ex rel. Railroad Commission v. Adams Exp. Co. 171 Ind. 138, 19 L.R.A.(N.S.) 93, 85 N. E. 337, 966. And the question as to the proper construction of the bills of lading for such interstate shipments is a Federal one, and subject to review as such by the Federal Supreme Court. Georgia, F. & A. R. Co. v. Blish Mill. Co. 241 U. S. 190, 60 L. ed. 948, 36 Sup, Ct. Rep. 541. There is no contention, however, that the Acts of Congress define a bill of lading, prescribe its form, or give to it any additional or unusual contractual or evidentiary effect.
As comprehending all methods of transportation, a bill of lading has been defined by the courts and text-writers as a written acknowledgment of the receipt of goods, and an agreement to transport and to deliver them at a specified place to a person named or on his order. 4 R. C. L. 3; Bouvier’s Law Diet.; Whitnack v. Chicago, B. & Q. R. Co. 82 Neb. 464, 19 L.R.A.(N.S.) 1011, 30 Am. St. Rep, 692, 118 N. W. 67; Davis v. Central Vermont R. Co. 66 Vt. 290, 44 Am. St. Rep. 852, 29 Atl. 313. And under the laws of this state “a bill of lading is an instrument in writing signed by a carrier or his agent, describing the freight so as to identify it, stating the name of the consignor, the terms of the contract for carriage and agreeing or directing that the freight be delivered to the order or assigns of a specified person at a specified place.” Comp. Laws 1913, § 6209.
The Interstate Commerce Act as amended (June 29, 1906) pro
And Section 10028, Compiled Laws of North Dakota, provides: “Every person being the master1, owner or agent of any vessel, or officer or agent of any railroad, express or transportation company or otherwise being or representing any carrier, who delivers any bill of lading, receipt or other voucher, or by which it appears that any merchandise of any description has been shipped on board any vessel or delivered to any railroad, express or transportation company or other carrier, unless the same has been so shipped or delivered, and is at the time actually under the control of such carrier, or the master, owner or agent of such vessel, or of some officer or agent of such company, to be forwarded as expressed in such bill of lading, receipt or voucher, is punishable by imprisonment in the penitentiary not less than one and not exceeding five years, or by a fine not exceeding $1,000, or both.”
The above quoted statutory provisions, both state and Federal, clearly contemplate that bills of lading shall be issued only for goods which have actually been received by, and are in the possession of, the carrier at the time the bill of lading is issued.
A bill of lading is said to be an instrument of a twofold character. It is at once a receipt and a contract. In the former character it is an acknowledgment of the receipt of property delivered to a carrier for transportation. In the latter, it is a contract to carry safely and deliver. See Pollard v. Vinton, 105 U. S. 7, 26 L. ed. 998; Missouri P. R. Co. v. McFadden, 154 D. S. 155, 38 L. ed. 944, 14 Sup. Ct. Rep. 990; Elliott, Railroads, § 1415; Michie, Carr. §§ 473-476.
And “in its twofold character of receipt and contract the bill of lading is subject to different rules of construction. In so far as it is merely a receipt either party may explain or contradict-it by parol,
Oyc. (6 Oyc. 421) says: “A bill of lading is an instrument twofold in its character; it is a receipt as to the quantity and description of the goods shipped, and a contract to transport and deliver the goods to the consignee or other person therein designated, and upon the terms specified in the same instrument. It states the terms of the shipment, anl also specifies the quantity of goods received, and sometimes their condition. While it may not, as already stated, be varied by parol evidence so far as it embodies the terms of the contract, yet, so far-as it constitutes a receipt, it is like other receipts or written acknowledgments, subject to be contradicted or explained by proof as to the facts. Thus a bill of lading is evidence of the receipt of the goods by the carrier, but may be contradicted by evidence that no goods were received. Authorities agree without dissent to the proposition that recitals in the bill of lading as to the quantity of goods received by the carrier may be contradicted as between the parties by parol evidence showing a less quantity to have been delivered.”
Ruling Case Law (4 R. C. L. 17, 18), states the rule to be as follows: “So far as a bill of lading is a receipt, it has the same character as other receipts, and is subject to the same principles of law. There is no more solemnity in its execution nor any more importance to be attached to it than to other instruments of a like nature. It may be stated generally that the receipt clauses in a bill of lading are subject to explanation, variation, or contradiction by parol evidence, as the general rule applicable to the admissibility of parol evidence to vary a written contract is not applicable to such clauses. The fact that both a contract and a receipt are embodied in the same instrument forms no reason why they should be regarded as differing in effect from similar instruments executed in an independent form. The clauses in a bill of lading which relate to the quantity and condition of the goods received do not enter into the contract between the parties and are explainable by parol.” See also Michie, Carr. §§ 473-476.
As has been noted above, the authorities are agreed that, ordinarily, at least as between the original parties, the recitals in the shipping receipt relative to the kind, quantity, and condition of the goods received for shipment are construed as a receipt, and, hence, subject to the rules
While common carriers are required to carry all goods offered to them in the usual course of business, yet under the rule announced by the great weight of authority in this country a carrier is not “bound by law to accept and carry goods beyond the terminus of its own line. In the absence of any agreement, either express or clearly implied, for transportation beyond its own line, the common-law duty of an independent carrier is performed by safely transporting the goods over its own line and delivering them to the consignee or connecting carrier, as the case may be. If, in such a case, the goods are merely-to be delivered by the initial carrier to a connecting carrier for further transportation, the former is considered as a forwarding agent rather than a carrier as to such further transportation, and is not liable for the "default of subsequent carriers.” Elliott, Railroads, 2d ed. § 1432. See also 6 Cyc. 374; 4 R. C. L. 875. The above-quoted rule is in harmony with, and practically covered by, § 6259, Comp. Laws 1913, which provides: “If a common carrier accepts freight for a place beyond his usual route, he must, unless he stipulates otherwise, deliver it at the end of his route in that direction to some other competent carrier, carrying to the place of address, or connected with those who thus carry and his liability ceases upon making such delivery
Of course, all state laws are pro tanto superseded, and interstate shipments controlled, by the Carmack amendment to the Interstate Commerce Act, whereby a carrier receiving property for interstate transportation is made liable for loss or injury to such property anywhere en route, with a remedy over against the carrier at fault. The Carmack amendment, however, in no manner attempts to make a subsequent or terminal carrier liable for the acts of a preceding carrier. See klichie, Carr. § 3653. The Carmack amendment has no application to, and places no additional liability upon, the defendant in this case.
In determining whether a contract made for the carrier by an agent is binding, the principles of agency are applicable, and if the contract is within the general scope of authority of the agent, the
There is no contention that the station agent at Kenmare had any .authority, either actual or ostensible, greater than that conferred upon him by virtue of his general employment as station agent. The question, therefore, is presented, whether he, as such station agent, had authority to bind his principal, the defendant railway company, by ■contract either to carry goods from the lake points, or to be responsible for their safety, while they were carried upon the boats of the Des Lacs Lake Navigation Company.
In construing a statute identical with § 6259, supra, the South Dakota supreme court held that a station agent, as such, had no .authority to contract for shipments over connecting lines, nor could his authority to do so be inferred from the fact that he collected freight for the entire distance. Sutton v. Chicago & N. W. R. Co. 14 S. D. 111, 84 N. W. 396; Coates v. Chicago, M. & St. P. R. Co. 8 S. D. 173, 65 N. W. 1067.
This is also recognized as the correct rule by the various textwriters. “We will see hereafter that the weight of authority in this country is that the carrier receiving goods for transportation to a destination beyond his own line impliedly contracts as carrier only for his own line, and in jurisdictions where this is the rule it is evident that an agent attempting to contract for transportation over a connecting line is exceeding his ordinary authority as agent of the receiving carrier, and his principal is not bound by such contract in the absence of express authority.” 6 Cyc. 432.
“A local station agent’s authority extends only to the control of the carrier’s business at his own station. Such agent has no implied au
“Prima facie the person in charge of a station at one place (station agent) has no power to act for the railway company in reference to the making of a contract of shipment' to his station from another station on the railroad. Nor would it be the duty of the station agent receiving notice relating to a shipping contract made elsewhere, to transmit such notice to agent at the station at which the shipment was made. His failing to do so would involve the road in no liability.” Michie, Carr. § 626. See also McManus v. Chicago G. W. R. Co. 138 Iowa, 150, 128 Am. St. Rep. 180, 115 N. W. 919; McLagan v. Chicago & N. W. R. Co. 116 Iowa, 183, 89 N. W. 233; Pollard v. Vinton, 105 U. S. 7, 26 L. ed. 998; Ætna Nat. Bank v. Water Power Co. 58 Mo. App. 532.
In order to hold defendant liable under the bills of lading, we must hold that the station agent at Kenmare, by virtue of his general authority as such, had authority to bind his principal, the defendant railway company, to carry goods from points distant from such station and distant from defendant’s line of railway; and had authority to assume a liability then existing for goods which had been lost through the negligence of a preceding carrier before the bills of lading were issued. We are agreed that these acts were not within the general scope of his authority as such station agent.
The next question presented is whether the court erred in permitting plaintiff to introduce evidence tending to show a prior parol contract with the defendant’s freight agent, Cole.
We have hereinabove set out plaintiff’s complaint in full. It will be noted that it alleges that the defendant, railway company, owned and operated the boat line. If this had been the fact, then, of course, the questions presented for our determination on this appeal would not have arisen. But, as already stated, the evidence disclosed that the
The bills of lading are not set out in the complaint, nor is there anything said to indicate that the statutory or common-law rights or obligations of the parties were in any manner altered by any conditions or stipulations in the bills of lading. Hence it must be presumed that they were not altered, as the rights or obligations of a carrier are not altered by a bill of lading unless the stipulations in the bill of lading' are plainly inconsistent with the rights and obligations created by operation of law. Comp. Laws 1913, § 6212.
The complaint charged the defendant with a breach of duty. The injury for which plaintiff seeks to recover is alleged to have been occasioned by the fact that “in making such transfer (transferring the wheat from the boats to the cars) the defendant, its agents, employees, and servants carelessly and negligently through the employment and use of improperly constructed and out of repair machinery and devices for unloading grain and through their negligence and lack of care in operating the same, . . . caused 1,000 bushels of wheat to be deposited and dumped in Des Laos lake.” “Plaintiff’s complaint stated a cause of action ex delicto, and charged a violation of the common law duties of a earner.” Cooke v. Northern P. R. Co. 22 N. D. 266, 270, 133 N. W. 303.
No legal duty, statutory or otherwise, rested upon the defendant to carry plaintiff’s grain from the lake points or to assume responsibility for its safety while it was being transported upon the barges of the Des •Lacs Lake Navigation Company. An obligation to do so under the undisputed facts in this case could not possibly exist by virtue of any legal duty which the defendant owed to the public in general, but if it existed
It may be considered a settled point, on principle and authority, that the nature of the cause of action is determined by the allegations of the complaint, so that the inquiry need never extend beyond this first pleading in this suit. Pom. Code Pern. § 559.
The complaint is intended to form the foundation of the proof to be submitted by the plaintiff upon the trial, and should advise the defendant what the plaintiff relies upon as a cause of action. 31 Oyc. 431
Pomeroy (Pom. Code Pern. § 554) says: “The very object and design of all pleading by the plaintiff, ... is that the adverse party may be informed of the real cause of action . . . relied upon by the pleader, and may thus have an opportunity of meeting and defeating it if possible at the trial. Unless the petition or complaint . . . fully and fairly accomplishes this purpose, the pleading would be a useless ceremony, productive only of delay, and the parties might better be permitted to state their demands orally before the court at the time of the trial. The requirement, therefore, that the cause of action . . . must be stated as it actually is, and that the proofs must establish it as stated, is involved in the very theory of pleading. It frequently happens, however, and from the very nature of the case it must happen, that the facts as proved do not exactly agree with those alleged. To determine the effect of such a disagreement we must recur to the reason and object of the rule, and they furnish a certain and equitable test. If the difference is so slight that the adverse party has not been misled, but, in preparing to meet and contest the case as alleged, he is fully prepared to meet and oppose the one to be actually proved, then no effect whatever is produced by the variance; to impose any loss or penalty on the pleader would be arbitrary and technical. In the second place, the difference, while it does not extend to the entire cause of action . . . may be so great in respect to some of its particular material facts as to have misled the adverse party, so that his preparation in connection with that particular is not adapted to the proofs which are produced. In such circumstances an amendment is proper because the variance is partial, but it is obviously equitable that terms should be imposed.
In Cooke v. Northern P. R. Co. 22 N. D. 266, 133 N. W. 303, this court held that where a plaintiff elects to bring an action based upon the violation of the common-law duties of a carrier, he cannot be permitted to recover where it is shown that the relation between the parties sire'governed by a special contract. See also Normile v. Oregon R. & Nav. Co. 41 Or. 177, 69 Pac. 928; Bedell v. Richmond & D. R Co. 94 Ga. 22, 20 S. E. 262; Gulf, C. & S. F. F. Co. v. Darby, 28 Tex. Civ. App. 229, 67 S. W. 129.
The principle enunciated in Cooke v. Northern P. R. Co. supra, is -directly applicable here. In the case at bar defendant was advised by the complaint that plaintiff sought to recover damages for the loss of grain, lost while the same was in the custody and under the control of the defendant upon boats owned and operated by the defendant; but upon the trial he was permitted to introduce evidence tending to show, .and recover upon the theory, that defendant, by reason of a special contract, was responsible for the safety of such shipments, not only over its own lines, but also over the lines of an independent connecting carrier over whose line the shipments were first transported. We are agreed that this evidence was variant from, and inadmissible under, the complaint.
Whether plaintiff has shown a right to recover damages for breach ■of a special contract is a question upon which we express no opinion as it is not involved, nor is it a proper issue, herein. It follows from what we have said above that the judgment below must be reversed, and the notion dismissed.
Respondent also submitted a motion for dismissal of the appeal. The
There was no personal appearance either on behalf of, or in opposition to, said motion at the time the same was noticed to be heard, but the same was considered on the motion papers theretofore filed by respondent, and as appellant’s brief had not been filed, the motion to dismiss was granted. On the following • day appellant’s counsel moved that the order of dismissal be vacated, and filed certain affidavits in support thereof. The order of dismissal was vacated, and the case set for argument on a day certain. Before argument on the merits, the respondent again moved for a dismissal of the appeal, and submitted certain affidavits in opposition to the affidavits filed by appellant. Bespondent’s counsel assailed the order reinstating the appeal on the ground that the-same had been entered without notice. We have carefully considered the affidavits of the respective parties and the merits of the respective motions, and while appellant failed to file his brief within the time provided by the rules of this court, still we are wholly agreed that the showing made by appellant’s counsel Is sufficient to justify a vacation of the order of dismissal and a denial of the second motion to dismiss. We believe, however, that respondent is entitled to terms. We have therefore decided that in lieu of such terms no costs shall be taxed against plaintiff in this action.
Judgment reversed, and the cause remanded for further proceedings consistent with this opinion.
Dissenting Opinion
(dissenting). I am unable to concur with the above opinion. Counsel for appellant contends that “plaintiff has, by his own offer in evidence, established the contract under which the plaintiff and defendant dealt in respect to the transportation of the grain, and has thereby rendered incompetent and immaterial the negotiations by
Counsel, however, is somewhat inconsistent in his positions. lie insists that the terms of the bills of lading control, and that the testimony in regard to all prior negotiations to explain the same is in■competent and irrelevant, yet, at the same time, his whole defense is based upon an attempt to vary those very terms. The bills of lading .specifically receipt for the grain, not at Kenmare, the point of the beginning of the rails of the railway company, but at the elevator points •of Boscurvis, Paisley, and Newport. The contracts for shipment, indeed, which are contained in all of the bills of lading, and the only promises therein contained, are made by the defendant railway company, and by the defendant railway company alone. They are signed by the agent of the railway company, no attempt whatever being made to show that this person was agent for any-one else but the railway •company. The bills of lading upon their face show conclusively a contract between the railway company and the plaintiff, Knapp, and between these parties alone, and show conclusively an agreement on the ■part of that railway company to cany the goods from the elevator points ■to the points of destination. Defendant, however, seeks to show that these receipts which receipted for the grain, not at Kenmare, but at Boscurvis, Newport, and Paisley, and that its contracts to convey the .grain, not from Kenmare, but from the said elevator points, were merely given as a matter of accommodation, and although his case is tried on this very theory, and this theory alone, he objects to the admission of the testimony of the witness Knapp, which tends to show the prior negotiations and to show that the receipts, in fact, evidenced the real contract, which was for the transportation of the goods from the elevator points, and not from Kenmare.
Either one proposition or the other must be true, and it is clear that the bills of lading alone control, or else that there is an ambiguity in them which can be explained by parol evidence, and in either event the record and the evidence are in my opinion such that the matter was properly submitted to the jury, and their verdict is controlling. Even if we take the position that the bills of lading are controlling and must
That the second of two connecting carriers may become the initial carrier by contract, and agree to be liable for the transportation from the point of origin of the freight, though not upon its own 'line, cannot now be controverted. We have discussed this question in the priolease of Knapp v. Minneapolis, St. P. & S. Ste: M. R. Co. 33 N. D. 291, 156 N. W. 1019, and all that is necessary here is to refer to that case and to the cases of Savannah, E. & W. R. Co. v. Commercial Guano Co. supra; Noyes v. Rutland & B. R. Co. 27 Vt. 110; Swift v. Pacific-Mail S. S. Co. 106 N. Y. 206, 12 N. E. 583; Evansville & C. R. Co. v. Androscoggin Mills, 22 Wall. 594, 22 L. ed. 724, and to the so-called Carmack amendment. See also Ogdensburg & L. C. R. Co. v. Pratt, 22 Wall. 123, 22 L. ed. 827.
The bills of lading, as I have before stated, expressly receipted for the goods at the elevator points. The promises in the bills of lading were made by the railway company, and by the railway company alone;, they were made by its agent, and by its agent alone, and it is well established that when a bill of lading receipts for goods as having been received at a certain jooint and agrees to carry such goods to another point, such bill of lading contains not merely a receipt for the goods, but a promise to carry or convey the goods between the points mentioned. I am well aware of the numerous authorities which hold that the receipt part of a bill of lading may be overcome by parol evidence,, and that it may be shown that the goods were never received at all or
If, then, the bills of lading control, the only question is the construction of the clauses thereof which provide that: “Section 2. In issuing this bill of lading this company agrees to transport only over its own line, and except as otherwise provided by law acts only as agent with respect to the portion of the route beyond its own line. No carrier shall be liable for loss, damage, or injury not occurring on its own road or its portion of the through route, nor after said property has been delivered to the next carrier, except as such liability is or may be imposed by law, but nothing contained in this bill of lading shall be deemed to exempt the initial carrier from any such liability so imposed. Section 3. No carrier is bound to transport said property by any particular train or vessel or in tilne for any particular market or otherwise-than with reasonable despatch, unless by specific agreement indorsed hereon. Every carrier shall have the right in case of physical necessity to forward said property by any railroad or route between the point of shipment and the point of destination; but if such diversion shall be from a rail to a water route the liability of the carrier shall be the same as though the entire carriage were by rail. Section 5 . . . Property destined to or taken from a station, wharf, or landing at which there is no regularly appointed agent shall be entirely at risk of owner after unloaded from cars or vessels or until loaded into cars or vessels, and when received from or delivered on private or other sidings, wharves, or landings shall be at owner’s risk until the cars are attached to and after they are detached from trains.”
I do not see how these provisions are applicable in the case before us. The receipt was given for the wheat, not at Kenmare, but at the elevator points. Under that receipt the carrier became the initial carrier. It-is not sought to be held liable for the loss of goods beyond the points of destination or upon the line of a subsequent carrier, but upon a line on which it had itself agreed to be liable. It had charged a rate of 22 cents, which was the rate not from Kenmare, but from the elevator-points. It had receipted and taken the grain and the grain was loaded
If on the other hand the bills of lading were ambiguous (and the defendant itself seeks to vary the terms thereof by showing -that the receipts for the goods at the elevator points were merely made as a matter of accommodation), then parol evidence was admissible to explain the real contract between the parties. Not only this but § 6213 of the Compiled Laws of 1913 provides that “a carrier must subscribe and deliver to the consignor . . . any reasonable number of bills of lading of the same tenor, expressing truly the original contract for ■carriage.” If the parol evidence was .admissible and competent, and I think it was, then there can be no question as to the liability of the ■defendant, or at any rate there was evidence to go to the jury showing such liability.
According to the testimony of the plaintiff (and this the jury was justified in taking at its full weight), the agent Cole held himself out ■as a general agent of the railway company, and there is certainly evidence outside of his own statements that his actions as such were ratified by the company. The plaintiff, Knapp, testified explicitly that he had been induced to lease the elevators by the promises of Cole that the defendant railway company would care for him and -would get his grain out, and that Cole said that “the bills of lading will read from Boscurvis, Baisley, and Newport, and that I (Knapp) will get my receipts at Kenmare.” There is evidence that there were no agents of •either the navigation company or the railway company at the elevator points, and that this custom had been followed. The bills of lading therefore in the case at bar were issued in conformity to this agreement. In other -words both by the bills of lading and by the prior parol agree
The rate published (the 22-eent rate from the elevator points and the 17-cent rate from Kenmare) was published by the railway company and the railway company alone. The name of the navigation company did not appear therein or thereon except in one part where the tariff sheet states that the rate given will include “the cost of elevation at Smith’s landing.” The bills of lading were given by the railway company, and not by the navigation company, and although in some of them and at the top of the name of the railway company was written that of the navigation company, the promise to carry was the promise of the railway company alone, and read “Received subject to the classification and tariffs in effect on the date of the receipt by the carriers of the property described in the original bill of lading at Boscurvis, Sask. (Newport or Paisley, as the case might be) from D. C. Knapp the property described - . . which the Minneapolis, St. Paul and Sault Ste. Marie Railway Company agrees to carry to its usual place of delivery at said destination.”
The defendant and appellant in short claims that the bills of lading control, and the plaintiff is absolutely bound thereby. He seeks, however, to vary their terms and to show that the promise to carry from the elevator points did not mean what it said, and yet objects to oral proof of what the promise was. That proof shows that the bills of lading were in conformity to the oral agreement, and which was to carry from the elevator points, and not from Kenmare.
It may be that a station agent has no implied authority to contract a liability beyond the line of the railway. The bills of lading, however, in the case at bar were issued under authority of the general agent and in the course of business which had been ratified by the company.