71 N.Y.S. 424 | N.Y. App. Div. | 1901
Lead Opinion
The plaintiff, claiming as assignee of the Slater Woolen Company of Webster, Mass., brought this action against the defendant—a common carrier — averring that it so negligently and carelessly conducted itself in its business as carrier that certain wool belonging to the Slater Woolen Company was destroyed by fire and lost to that company.
It appears that the defendant, known as the Mallory Line, has for many years run a line of steamships between New York and Galveston, Tex., and during the summer of 1896 its steamers sailed from Galveston weekly. It had large freight sheds on the wharf at Galveston in which the freight delivered to it by the railroads was placed until it could be loaded on the steamer.
The Gulf, Colorado and Santa Fe Railway Company operated a railroad from San Angelo, Tex., to Galveston, and the Texas Central' Railroad operated a road from Walnut Springs, Tex., to Morgan, a point on thfe line of the Gulf, Colorado and Santa Fe road.
The wool in question was destroyed by fire July 2, 1896, in a shed on the wharf used by the defendant in Galveston. It consisted of parts of two lots, viz., one lot of 65 bales of banded wool which was a part of a lot of 74 bales shipped from San Angelo, Tex., on the Gulf, Colorado and Santa Fe railway, and one lot of 102 sacks of wool which was part of a lot of 156 sacks shipped from Walnut Springs on the Texas Central railway. Both lots were shipped by J. R. Franklin, acting as agent for the Slater Woolen Company, and were delivered in different parcels at different times by the Gulf, Colorado and Santa Fe Railway Company to the defendant at Galveston. At the time of such deliveries there was no steamer of defendant’s line in the port of Galveston, and none arrived there or was due there until after the fire, such deliveries having taken place after the departure of defendant’s regular weekly steamer. The wool was received by the Gulf, Colorado and Santa Fe Company and the Texas Central Company, respectively, under separate bills of lading, containing different conditions and provisions. When the Gulf, Colorado and Santa Fe Company received from, the Texas Central Company the wool which was shipped from Walnut Springs it did not execute or deliver any bill of lading therefor, and the Mallory Line, upon receipt of the two'
It is the theory of the plaintiff that the defendant is liable as a carrier for the loss of the wool burned and not as a warehouseman; that the bill of lading issued by the Gulf, Colorado and Santa Fe Railway Company was not a through bill but a contract to carry .to ■Galveston only, and that the defendant was not entitled to the benefit of any exemption therein contained; and that the Texas Central bill did not exempt the defendant from liability for loss by fire. On the other hand, the defendant claims that each of these bills of lading was a “ through bill and covered the wool from the time of its-shipment down to and including the time of its destruction by fire;. that no recovery could be had against it, except under the terms of the bills of lading, and that, under those bills, the defendant was not. liable for loss by fire occurring on the wharf without negligence on its part.
The trial court held and decided in favor of the defendant upon these questions and judgment was entered dismissing the complaint of the plaintiff, from which this appeal is taken.
It is not claimed that the defendant was guilty of any negligence in respect to the fire, as it was shown that the fire did not originate on property under its control.
The rights and liabilities of the respective parties are to be determined upon a construction of the respective bills of lading. If that issued by the Gulf, Colorado and Santa Fe Railway Company, at San Angelo, is to be construed as a through bill, then it is clear that the exemption from liability contained therein for loss happening by fire inures to the benefit of the defendant and exempts it from liability for such loss. As to the bill of lading issued at Walnut Springs by the Texas Central Railroad Company, it is conceded to be a through bill, and the defendant is entitled to such exemption from liability for loss by fire as is expressed therein. The questions presented, therefore, are quite dissimilar, and are governed by different considerations. Making disposition of the questions in the order presented, we find that the first bill, so far as its specific terms are concerned, was a contract for the carriage of the wool from San Angelo to Galveston and there to be delivered to the consignee, or a connecting common carrier. These contracts are to be construed
It is clearly apparent from all of these matters, and from- the bill of lading itself, that the wool was in fact ultimately destined for Webster, Mass., and that it was to be delivered at that point to the consignee. Every shipment of -goods from one State to another, and from point's long distances apart, almost of necessity pass over the lines, either of rail or water, of many separate and distinct carriers. But it has never been supposed that such fact characterizes the bill of lading as a through bill, or that appropriate marks indicating the ultimate destination of the goods determines the liability of a common carrier. If there be no contract and it receive' the goods, it is bound at its peril to deliver them ; and if it does not, liability attaches. And if there be any exemption it must be found in the contract of carriage. T_he particular destination of the goods, therefore, is not the basis upon which the liability of the carrier or the exemption therefrom is to be determined. And the fact that the shipper .bills the goods to such a point of destination as will necessarily carry them over the lines of successive common carriers, has little, if any, bearing upon the subject of a connecting common carrier’s liability. Liability is made to depend not upon the distance that the goods are to be carried, or the number of the carriers, but upon the terms of the contract, and if by its terms the contract of the carrier' covers all tliedines between the point of shipment and the destination of the goods, then the initial carrier becomes liable for the faithful performance of duty by all the carriers, and each one is entitled to such exemption as is contained in the contract of carriage. (Jennings v. G. T. R. Co., supra.) But where the first carrier only contracts to carry to and deliver to another carrier, such connecting carrier is not entitled to any exemptions by virtue of that contract of carriage, and the fact that it was known at the time of shipment that the goods would go over different lines does not change the liability of the carrier unless it stipulate therefor. (Ætna Ins. Co. v. Wheeler, 49 N. Y. 616.) In that case there was found present
This disposes of the question presented by the San Angelo bill of lading. As we have before observed, it is conceded that the bill of lading issued by the Texas Central Railroad Company is a through, bill, in consequence of which the defendant -is entitled to be protected by any exemption from liability within its terms. There is,, however, in this bill of lading no express exemption, in terms, from, loss sustained by fire. The .defendant -claims exemption, however,, by virtue of the following clause in the bill: “ It is further stipu;
It follows from these views that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Ing-raham, McLaughlin and Laughlin, JJ., concurred.
Concurrence Opinion
I concur as to the bill of lading first considered in this opinion, but I dissent as to the views expressed therein concerning the second or through bill.
Judgment reversed, new trial ordered, costs to appellant to abide event.