State National Bank v. Chicago Great Western Railway Co.

72 Mo. App. 82 | Mo. Ct. App. | 1897

Ellison, J.

The defendant received of the Will-man Mercantile Company a carload of apples and issued to such company its bill of lading wherein there occurs many provisions and stipulations; those pertaining to the points for decision in this case are set out in the statement of the cause, together with much of the agreed statement of facts on which the case was tried. Those portions in italics are claimed by plaintiff as especially showing a contract 'for through carriage by defendant to point of destination.

The bill of lading with draft on consignees attached for amount of proceeds of shipment was assigned to plaintiff. The defendant’s road terminated at Chicago and the connecting carrier at that city carried the apples to Boston and there negligently delivered them to consignees without the bill of lading. The result was that the' draft held by plaintiff has ■not been paid. The judgment below was for defendant.

c?imit?ng“liabiTity ñe¡gin°toghs own line: statute. We understand the cases of Dimmitt v. R’y, 103 Mo. 433, and McCann v. Eddy, 133 Mo. 59, to decide that under the statute of 1889, section 944, a carrier receiving freight destined beyond its own line may stipulate that it will not be liable for negligence of the connecting carrier if its contract of carriage is limited to the end Qwn r0Ut6. But jf the receiving carrier’s contract is to transport the freight to point of destination it can not so limit its liability, and must answer for the negligence of the connecting carrier. Those eases further hold that the receiving carrier in receiving freight and issuing a bill of lading therefor to a point beyond its own line prima facie agrees to carry to such point, and to prevent such construction of the contract, it will be necessary that it stipulate it is only to carry to the end o.f its own line.

■In this case the bill of lading shows Boston to have been the destination of the freight, but the contract itself is that defendant received the freight “consigned as marked” to Boston “to be transported over the line of this railway to Chicago, 111., station, and there delivered in like good order * * * to such company or carrier .whose line may be considered a part of the route to place of destination of said property, it being distinctly understood and agreed that the responsibility of this company, as a common carrier, shall cease at the station where delivered or tendered to such * * * carrier.” There then follows a stipulation that for all loss or damage occurring in transit the legal remedy shall be against the carrier causing the loss; “it being understood that the Chicago Great Western Railway Company assumes no other responsibility for the safe carriage of said property or its safety than may be incurred on its own road.”

The defendant’s contract was undoubtedly only to carry to the end of its own line. The fact that Boston was marked on the bill-of lading.as the point of destination can not overcome the express stipulation that defendant would only carry to Chicago, the end of its own line. And under the rule of the foregoing cases we must hold the defendant not liable for the negligence at Boston of the connecting carrier.

2. We do not regard the parts of the bill of lading italicised by plaintiff as evidencing a contract to carry to point of destination.

contract' —: The fact that the shipper was “desirous” of shipping the apples to Boston and so stated to defendant’s agent is of no moment, since the desire to ship and the information as to destination being Boston are not inconsistent with a contract to ship to Chicago only.. So the same .may be said of the fact that the bill of lading specifies that defendant is to deliver to such connecting carrier as may be considered a part of the route to destination. And the further fact that the defendant reserved the right to forward by any raiload line between points of shipment and destination was only a reservation of a right to deliver to any connecting carrier leading to or connecting with point of destination.

: _ : : 3. It will be seen that other parts of the bill of lading contain stipulations which were intended for the benefit of the connecting carrier. As for instance, the right to charge trackage to shipper for detention of car at destination over . twenty-four hours. And that the connecting carrier should have the benefit, in case of loss for which it would be liable to shipper, of all insurance taken out by the shipper. These provisions when considered in connection with the whole contract, only recognize the fact that the shipment will be continued over lines other than defendant’s. They are doubtless inserted in the contract to facilitate the procuring of connecting carriers. But they can not be allowed to control the express stipulation that the shipment was from St. Joseph “to Chicago, 111., there to be delivered” to the connecting carrier. Indeed the face of the provisions themselves indicate that there was a separate liability by each carrier for losses happening on their own lines. Nor do we see that the act of defendant in guaranteeing the rate of freight advanced by the shipper should not exceed the amount advanced, has the effect to nullify the contract of shipment to Chicago.

—Zi. : It must be admitted that the cases referred to above recognize that contracts may be made by a carrier for the shipment of freight to the end of its line which is destined in bill of lading to points beyond its line; and that such contracts may contemplate delivery to a connecting carrier. Accepting those decisions and giving to them their full effect we can not see anything in the contract before us which would fall under the inhibition of the statute aforesaid. Though we may. add that but for the authoritative interpretation which the statute has received we might have concluded that the legislature intended by the enactment that • a receiving carrier of freight for a destination beyond its own line, agreeing on a through rate and delivery to a connecting carrier, made such connecting carrier its agent to the extent that, under the statute, it could not exempt itself from liability for the connecting carrier’s negligence. The words of the statute certainly convey such meaning. The statute reads that the common carrier issuing the bill of lading shall be liable for any loss “caused by its negligence or the negligence of any other common carrier, railroad or transportation company to which such property may be delivered, or over whose line such property may pass; and the common carrier, railroad or transportation company issuing any such receipt or bill of lading shall be entitled to recover, in a proper action, the amount of any loss, damage or injury it may be required to pay to the owner of such property, from the common carrier, railroad or transportation company, through whose negligence the loss, damage or injury may be sustained. R. S. 1879°, sec. 598b.

It is a matter of common knowledge that railway carriers solicit the transportation of freight to distant points beyond their own lines; that loss happens to such freight while in transit, but on which line the shipper is, in most instances, necessarily ignorant. Unless he can hold the receiving carrier liable for the loss, he is practically without remedy. There is strong reason to believe that the legislature, by the act aforesaid, intended to relieve this condition. And it may be questioned whether, under the interpretation placed on the statute, it will not allow public carriers to nullify its provisions.

The judgment will be affirmed.

All concur.