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and authorizing the collection of damages against a company wdiich fails so to
do, a railroad company is not compelled to switch freight w^hich was not con-
signed over its lines from the line of one railroad to that of another in the same
city, and is not re([uire(l to res]ion(l in damages for a failure so to do.-^

Carrier Not Required to Keep Cars of a Special Kind for Forwarding
Fruit. — A connecting carrier is not required to keep on hand, at the connecting
point, cars of a special kind, for forwarding fruit, to meet a possible contin-
gency arising from the defective condition of the car in which the fruit was
originally shipped. -^

Tender of Cars or Freight and Waiver Thereof. — There can not be a re-
fusal by a carrier to receive cars or freight from a connecting carrier until such
cars or freight have been tendered to it, and therefore a tender is a prerequisite
to its lial)ility for refusal to receive, unless a tender has been waived. -^

18. McMillan v. Chicago, etc., R. Co.,
147 Iowa .596. 124 N. W. 1069, 35 R. R.
R. 396, 58 Am. & Eng. R. Cas., N. S.,

19. Constitutional enactments and stat-
utes enforcing duty to receive and trans-
port cars and freight. — Under the con-
stitution of Illinois anj' railroad company
is bound to haul the cars of any other.
Peoria, etc.. R. Co. z\ Chicago, etc., R.
Co., 109 111. 135, 50 Am. Rep. 605, 18 Am.
& Eng. R. Cas. 506.

Under the Texas statute. Rev. St. 1895,
art. 4535, all railway companies are re-
quired to receive freight from connect-
ing lines, and to transport it to destina-
tion or to the next connecting line. Ft.
Worth, etc., R. Co r. .Mastcrson, 95 Tex.
202. 66 S. W. 833.

A rule of a carrier whcreliy shipments
of a certain character coming from a
designated jjoint are refused in the cars
of connecting roads, hut arc required to
be unloaded and reshijjped is in direct
contravention of the Georgia statute.
Code of ]S8:i, § THlCq), and the follow-
ing subsections. Logan & Co. z: Cen-
tral Railroad, 74 On. 684.

20. Extent of carrier's duty. — Coup z'.
Wal)ash. etc., R. Co.. 'S.l S. \V. 215, 50
Mich. 111. 56 Am. Rep. 374.

21. Judgment, Texas, etc.. R. Co. v.
Gulf, cte., R. Co. (Tex. Civ. App.). 54 S.
W. 1031, afTirming in 56 S. W. 328, 03 Tex.
482, construing Rev. St.. art. 4535.

Since mere switch connections be-
tween several railroads in llie same city
arc not connecting line^ under Rev. St.,
arts, 4.535, 1536, re(|uiring railroads to re-
ceive and transport Ireight from coiitiect-

ing lines without discrimination, the
owners of such switch connections were
not obliged to make transfers thereon to
and from roads not their own, and by
performing- such service for some roads
did not subject themselves to the per-
formance of a like service for all roads
tendering similar business and offering
like compensation. Texas, etc., R. Co. f.
Gulf, etc., R. Co. (Tex. Civ. App.\ 54 S.
W. 1031, judgment affirmed in 56 S. VV.
328, 93 Tex. 482.

22. Carrier not required to keep cars of
special kind for forwarding fruit. — Corso
T-. Xcw Orleans, etc., R. Co., 48 La. Ann.
1286. 20 So. 752.

23. Waiver of tender. — The puldicaticni
of an order by a connecting carrier re-
fusing to receive goods shipped over an-
other line, its refusal under such order
to accept a tender of freight and its spe-
cific notification to the delivering com-
]iany, that the order was still in force,
amounts to a waiver of tender, and one
acting under this order and notil'icalion
will lie protected in the same degree as
if he had made actual teniler. So where
a railroad company passed an order to
the effect that after that date no ship-
ment of salt or other meichandise from
I'runswick in competition with Savannali
would be received for local stations on
its line, or for passing over another road
operated by it under lease, or for i)oints
beyond, imless charges were prepaid and
shiimients were delivered at the coni-
l>any's warehouse by drays as local imsi-
ness, and that local rates from that point
would be assessed; if a firm who shipped
sa'l from I'.nniswick ]>y a road connect-

§§ 3614-3616



What Will Justify Refusal to Receive Freight.— In an action for dam-
ages for refusal to receive from a connecting line without prepayment freight
billed to a certain flag station, defendant may show that it had a fixed regula-
tion requiring prepayment on all freight consigned to that station, and that both
plaintiff and the connecting line knew of that fact.-^ The existence of a void
state quarantine line against infected cattle will not justify a railroad company
in violating the provisions of a statute requiring all railway companies to re-
ceive freight from connecting lines, and to transport it to destination or to the
next connecting line, by refusing to receive and transport cattle consigned on a
through bill of lading issued by another company to a point within such void
quarantine line, but which defendant company would only have had to carry to
a connecting point not within such line.-^

§ 3615. Duty of a Forwarding Consignee.— There is an implied en-
gagement by a forwarding consignee with the public that he will be vigilant
and careful in receiving and forwarding goods intrusted to his care, and, upon
his refusal to receive goods consigned to him, he will be liable to an action by
the owner for any loss which such refusal occasions.-*^

§ 3616. Capacity in Which Connecting Carrier Acts and How It Is
Affected by Initial Carrier's Contract with Shipper.— When a contract ex-
ists between a consignor and a carrier to transport goods to a point beyond its
line, the carrier, receiving the goods at the end of the line for the purpose of
transporting them to their destination and delivering them there, becomes the
agent of the carrier receiving the goods from the consignor for shipment, for
the purposes of further transportation and delivery.-^ An initial carrier can
not by its contract with the shipper bind a connecting carrier without the lat-
ter's consent or acquiescence. ^^ But a carrier which accepts goods from a
connecting carrier with notice that they were shipped under a through bill of

ing with the first mentioned road made
a tender to it of one or more cars loaded
with salt, and it was refused, and, when
more cars arrived, the agent of the road
bringing them inquired of the agent of
the other road whether the order above
stated was still in force and operative
and was informed that it was still in
force there was no necessity for further
tender of the cars to the refusing road
before bringing suit for such refusal.
Central R. Co.^'. Logan & Co., 77 Ga.
804. 2 S. E. 46.5.

24. Regulation requiring prepayment on
all freight consigned to certain station. —
Randall 7: Richmond, etc., R. Co., lOS N.
C. 612, 13 S. E. 137.

25. Void state quarantine line. — Ft.
Worth, etc., R. Co. v. Masterson, 95 Tex.
262, 66 S. W. 83.3, construing Rev. St.
180.5. art. 4,535.

26. Duty and liability of a forwarding
consignee. — Hemphill v. Chenie (Pa.), 6
Watts & S. 62.

Goods were shipped from New York
to Charleston, for the plaintiffs, doing
business in Columbia, S. C, to the care
of the South Carolina Railroad Company,
whose course of business it was to re-
ceive and forward goods so addressed.
Held, that the company were not liable
as common carriers until the goods were
received by them for carriage; that, con-

sidering them as forwarding agents, the
rule as to their liability was not the same
as that which applied to them as com-
mon carriers; that, considering them as
forwarding agents, they would be liable
for refusing to receive, unless they
showed good excuse for not receiving;
and after receiving, they would be liable
for not taking all the care which a pru-
dent man would take about his own
business. Maybin v. South Carolina R.
Co. (S. C), 8 Rich. L. 240, 64 Am. Dec.

27. Connecting carrier agent of initial
carrier. — St. Louis, etc., R. Co. v. Gram-
ling, 97 Ark. 353, 133 S. W. 1129; St.
Louis, etc., R. Co. z: Elgin Condensed
Milk Co., 74 111. App. 619, affirmed in 51
N. E. 911, 175 111.^ 557, 67 Am. St. Rep.

28. Initial carrier can not bind connect-
ing carrier without its consent or acqui-
escence. — Rome R. Co. v. Sullivan, etc.,
Co., 25 Ga. 228.

A shipper's contract with one railroad
to transport goods — as here, 836 bales
of cotton by the Atlantic Coast Line
from Georgia to New York — does not
render another railroad in the line liable
for a refusal to forward the goods from
the point of connection. Wilmington,
etc., R. Co. 7'. Greenville, etc., R. Co., 9
S. C. 325, 30 Am. Rep. 23.




§§ 3616-3617

lading is bound by its terms so far at least as they are usual and customar}%29
and can not change the contract by issuing its own bill of lading to the connect-
ing carrier containing different terms to which the owner of the goods has not
assented. ••"^ Where a trafific agreement between initial and connecting carrier^
makes them partners in the carriage of freight or agents of each other, the
connecting carrier is estopped from denying the recitals in a bill of lading in
any case the initial carrier is estopped. ^^ But a connecting carrier which has no
traffic arrangement with an initial carrier so as to make the carriers partners or
agents of each other, is not estopped by the recitals of a bill of lading issued by
the initial carrier and it may show that the bill of lading erroneously states the
quantity of freight received for transportation, the common law not imposing
on the connecting carrier any liability for mistakes of the initial carrier in
issuing bill.'^ of lading. ■"•-

§ 3617. Delivery to Consignee. — The last carrier of several connecting
lines is bound to deliver the goods at the place of destination, and to the con-
signee there, or to his order, if they were made known to it on receiving the
freight from the preceding connecting company. ^"^ Where a connecting carrier
receives a carload of freight, consigned to a designated consignee for transpor-
tation to a point on its road where it has neither freight agent nor depot build-
ing, and the bill of lading issued by the initial carrier shows that the freight
charges were paid, and provides that delivery of freight destined to switches
or side tracks having no agent shall be complete upon switching the car at such
side track, the delivery is complete when the connecting carrier carries the car
to the point indicated, and sidetracks it on a switch in front of the office of a
lumber company, for whom the freight is really intended, though consigned to
another.^'* While the authorities are not in entire harmony upon the subject,
the most reasonable and better opinion seems to be that in case of a through
shipment of goods, the last carrier is not authorized to deliver them to the con-
signee without a production of the bill of lading.^'^ \ carrier of goods must

29. Effect of acceptance of goods from
connecting carrier. — Cobb r. Brown, 113
C. C. A. 58G, 193 Fed. 958.

Where a bill of lading issued by an ini-
tial carrier showed that it was a contract
for a through shipment, when the goods
were delivered to the connecting car-
rier and carried by it under the bill of
lading, such carrier became a party to
the original contract by adoption and
ratification. Chicago, etc., R. Co. v.
Chestnut Bros., 89 S. W. 298, 28 Kv. L.
Re]). 404.

Where live stock is shipped to a point
within or without the state, the contract
of sliipincnt made with the initial carrier
is binding on all connecting carriers who
receive the live stock. Illinois Cent. R.
Co. V. Curry, lOr, S. W. 294, 32 Ky. L.
Rep. 513; Baltimore, etc., R. Co. v. Clift,
142 Ky. r,7:i, 134 S. W. 917, 919.

80. Cobb r. Brown. 113 C. C. A. .'iSG.
193 F-.<I. 9.-,H.

31. When connecting carrier is estopped
from denying recitals in bill of lading. —
Sniitli v. Soullicrn Kailwav, 71 S. 1'*. 9H9,
89 S. C. 41.-..

32. Smith v. Soiitlurn I^ailway, ho S. C.
4U,. 71 S. I-'. 9H9.

33. Duty of last of several connecting
carriers. Nortli I'<-nnsylvania K. Co. t.
Conuncrcial Nat. Bank, 123 U. .S. 727, 31

L. Ed. 287, 8 S. Ct. 266. See, also, My-
rick V. Michigan Cent. R. Co., 107 U. S.
102, 27 I.. Ed. 325, 1 S. Ct. 42;-).

34. Delivery complete under terms of
bill of lading. — Hill v. St. Louis, etc., R.
Co., 07 Ark. 402, .55 S. W. 216. in this
case the manager of the lumber com-
pany, without consent of the connecting
carrier or the consignors, broke open
the car, which was sealed and locked,
unloaded its contents, carried the same
away, and failed to pay a draft made upon
him for its value. It was held that the
defendant (the connecting carrier) was
not liable to the consignor for the loss
of till' contents of the car.

35. Necessity for production of bill of
lading. — Ratzer v. Burlington, t-lc, R.
Co., 64 Minn. 24.->. 66 N. W. 988. 58 Am.
St. Rep. 530. In delivering the opinion
of the court in this case Canty, J., said:
"II is hardly necessary to cite autliorities
to the general i)roposition that, wlu-n a
l)ill of lading is otUstanding. the railway
company delivers the goods a1 its peril,
witliout a i)ro(luction of the bill of lad-
ing; and, if it so delivers them to some
one other llian the bona fide hohler for
value f)f the bill of lading, it is lial)lo to
him for conversion of the gon<!s. What
limitations or exceptions there may be
to this rule we need not now consider.

§ 3617



deliver them in the condition in which he received them. He has ordinarily no
means of opening packages and examining their contents, and has nothing to
do with previous dealings with the property by independent carriers. "'^ An ac-
tion by the consignee of a shipment of goods against the terminal carrier for
the conversion of the goods lies, where, on weighing the goods, their weight
was found to be less than that given in the waybill, and the consignee made a
tender of the legal charge, based upon the correct weight, which tender was
refused until the matter of the freight charges could be adjusted with a con-
necting line, and the carrier did not offer to deliver the goods until ten days
after the tender was made, when the consignee declined to accept them.37 In
case of a through shipment the last carrier is liable in damages to the person
injured if it delivers the goods to a person not authorized to receive them.^s or

The following- authorities show the uni-
versality of the rule as applied to trans-
portation both on land and by water.
See The Thames (U. S.). 14 Wall. 98. 20 L.
Ed. 804; North v. Merchants', etc., Transp.
Co., 146 Mass. 315. 15 N. E. 779; Forbes
z\ Boston, etc., R. Co., 133 Mass. 154; Fur-
man 7'. Union Pac. R. Co., 106 N. Y. 579,
13 X. E. 587; City Bank v. Rome, etc.,
R. Co., 44 N. Y. 136; Pennsylvania R. Co.
v. Stern, 119 Pa. 24, 12 Atl. 756; Boat-
men's Sav. Bank v. Western, etc., R. Co ,
81 Ga. 221, 7 S. E. 125; National Bank v.
Atlanta, etc., R. Co.. 25 S. C. 216; Mid-
land Nat. Bank v. Missouri Pac. R. Co.,
132 Mo. 492, 33 S. W. 521, 53 Am. St.
Rep. 505; Armentrout v. St. Louis, etc.,
R. Co., 1 Mo. App. 158; Gates v. Chicago,
etc., R. Co., 42 Neb. 379, 60 N. W. 583;
Garden Grove Bank f. Humeston, etc.,
R. Co., 67 Iowa 526, 25 N. W. 761; Tin-
dall V. Taylor (Eng.), 4 El. & Bl. 219.
See, also, as bearing on the question:
Halsey v. W^arden, 25 Kan. 128: ?^Iever-
stein 2'. Barber (Eng.\ L. R. 2 C. P.' 38;
Lee t'. Bowen. 5 Biss. 154, Fed. Cas. No!
8,183; Hieskell z'. Farmers', etc., Nat.
Bank, 89 Pa. 155, 33 Am. Rep. 745; Bass
7'. Glover, 63 Ga. 745; First Nat. Bank v.
Dearborn, 115 Mass. 219; Dows v. Na-
tional Exch. Bank, 91 U. S. 618, 23 L.
Ed. 214: Coiiard v. Atlantic Ins. Co. (U.
S.), 1 Pet. 386, 7 L. Ed. 189; Weyand v.
Atchison, etc., R. Co., 75 Iowa 573, 9
Am. St. Rep. 504, 1 L. R. A. 650, 39 N.
W. 899."

Grain was delivered to a carrier for
shipment to a destination beyond its own
line under a through bill of lading. A
sight draft, with the bill of lading at-
tached, was forwarded through certain
banks for collection from the consignee,
who refused to accept the same because
of the nonarrival of the grain. The draft
was protected and returned to the ship-
pers, and thereafter the connecting car-
rier delivered the grain to the consignee
on a bond, without presentation of the
bill of lading, and without payment of
the draft. Held, that such delivery con-
stituted a conversion of the grain by the
connecting carrier. Marshall, etc., Grain
Co. V. Kansas, etc., R. Co.. 75 S. W.
638, 176 ]\Io. 480, 98 Am. St. Rep. 508.

But in Texas it has been held that in
case of a through shipment of freight
the last carrier may deliver the goods to
the consignee without requiring the pro-
duction of the bill of lading," unless it
contains a stipulation to the contrary.
Nashville, etc.. R. Co. r-. Grayson County
Nat. Bank. lOi) Tex. 17, 93 S. 'W. 4:U.

36. Condition in which goods must be
delivered. — Marquette, etc., R. Co. v.
Kirkwood, 7 N. W. 209, 45 Mich. 51, 40
Am. Rep. 4.")3.

37. Liability for wrongful refusal to de-
liver. — Brown v. Philadelphia, etc., R.
Co., 36 .App. D. C. 221.

38. Delivery of goods to person not au-
thorized to receive them. — Where goods
consigned on commission are received
by a railroad companj' to be carried be-
yond its own route, under an agreement
between the connecting companies by
which each company is entitled to a pro-
portion of the freight, the company
which carries the goods to their destina-
tion is liable to the consignor for a de-
livery to a person not authorized to re-
ceive them. Cavallaro z'. Texas, etc., R.
Co., 110 Cal. 348, 42 Pac. 918, 52 Am. St.
Rep. 94.

A carrier, the last of several connect-
ing carriers, who delivers the goods at
their destination to one other than the
consignee, by reason of erroneous di-
rections given him by an intermediate
connecting carrier, without authority of
either consignor or consignee, and with-
out surrender of the bill of lading issued
by the initial carrier, is liable for con-
version. Foy t'. Chicago, etc., R. Co., 63
Minn. 255, 65 N. W. 627.

A. forged a telegram in the name of
B., reriuesting a national bank at Charles-
ton, 111., to forward $500 to B., at Gaines-
ville, Fla. Upon the receipt of this tele-
gram, B.'s agent gave his note for the
money, which B. subsequently paid, and
the bank forwarded the money by ex-
press, the package being addressed to B.
at the Arlington House, Gainesville. The
agent of the express company at Gaines-
ville delivered the package to a stranger,
without any further identification than
that an hotel keeper, known to said
agent as a relial^le person, accompanied


if it delivers them to the consignee without the surrender or cancellation of
the bill of lading.29

§ 3618. Use by Carrier of Connecting Carrier's Cars. — Where a car-
rier delivers its cars to a connecting carrier for transportation of stock to a
stockyard, it is entitled to charge a reasonable amount for the use of its cars,
and, if they are not returned within a reasonable time, it may sue the connect-
ing carrier for damages or obtain a mandatory injunction to compel a return
of the cars."**^

§§ 3619-3633. Delay in Transportation or Delivery— § 3619. Lia-
bility in General. — Where property is transported over several railroads con-
stituting a connecting line, neither company is agent of the owner, but each ex-
ercises an independent employment as a contractor with the owner, and is
responsible for its own negligence, and can not make the owner responsible for
the negligence of a connecting road.'*^ In an action against a railroad company
where unreasonable delay is complained of, and the loss of a market, it is
not sufficient for the plaintiff to prove delay merely on the part of the de-
fendant, where it appears that there was delay also on the part of connecting
lines, and that, had it not been for such delay, no loss would have occurred.^-

§§ 3620-3628. Liability of Initial Carrier— § 3620. In General.— If

there be no special contract, a carrier is bound, if goods are directed to a place
beyond its line, to deliver them over to the custody proper to insure due trans-
port, and if it is guilty of improper delay it is liable in damages.'*^ A railroad
company, under a special contract to furnish cars for the transportation of goods
over its own and connecting lines to a city where the consignor intends to sell
them, and to transport them over its own line within a specified time, will be
liable, if it fails to furnish the cars and deliver them, with their freight, to the
connecting lines within the time specified, for any loss the consignor may sus-
tain from a fall in the market ])rice after the date fixed for delivery, though the
connecting line would not have transported the cars if duly delivered to it as
recjuired by the contract.'*^ Under a special contract to deliver a car load of
apples to a connecting line within a given time, so as to avoid the danger of cold
weather, the first carrier is liable for damage to the apples by freezing, while

the stranger, and treated him as I». the shipper. Ratzer v. Burlington, etc..

Held, that tlie company, though the last R. Co., G4 Minn. 245, 66 N. W. 988, 58

carrier, was liable to B. for the loss of Am. St. Rep. 530.

the money. Southern Exp. Co. v. Van 40. Use by carrier of connecting car-
Meter. 17 Fla. 78:l 35 Am. Rep. 107. rier's cars.— Louisville, etc., R. Co. v.
39. Delivery to consignee without sur- Central Stockyards Co., 5)7 S. W. 778, 30
render or cancellation of bill of lading. — \^y j i^,,,^ fg
The shipper of goods consigned them to ^^ Liability for delay on railroads con-

i.msel and received a hill of admg .^i^uting a connecting line.-Slurman v.

trom the railway company accordingly. ,, , " ^ i> r^ ?^ . \- v ..-1 cr

'I'. •, ^ II- 1 .1 1 u( son, etc., R. Co., (i4 X. \. ;.'.)l, alhrm-

1 he railway company delivered them, • r r t\.\ re,,

with a proper waybill, to the next con- '"^' '' ^^^^'^ •*-'•

nccting railway company, who, at the 42. Detroit, etc., R. Co. v. McKenzie.

shipper's request, delivered the goods to »- Mich. (i09, 5 N. \V. 1031.

him in transit at an intermediate point, 43. Duty and liability of initial carrier

without the surreiuler or cancellation of in general. Uome 1\. C". 7'. Sullivan,

the bill of larling, which he thereafter, cu.. Co., :.'5 da. ;i;i8.

and l)cfore the goods would have arrived A carrier is liable for injury to horses

at their original destination if the transit shipped, residting from an unreasonable

had continued, jiledged, in the usual ('day ni delivering them to a connecting

course of business, to an innocent lint', h'tdlon :■. McCreary-McClellan Live

pledKcc. for value. Held, the latter rail- Stock Co., 5'.i S. W. 7 11, :.':i l\y. 1 -. Rep.

way company is liable to the liledgee for I()5h.

failure to deliver the goods at the place 44. Liability under special contracts.

of destination, and is estoi>ped from — l-.ast Tennessee, etc., U. Co. i\ .\'el>on,

showing such intermediate delivery to 1! Tenn. II Coldw. I :ioJ.

§§ 3620-3623 carriers. 3276

being transported over the connecting line, caused by the former's delay in de-
livering them.45

§ 3621. Delay Resulting from Failure to Conform to Shipper's Di-
rections or to Give Proper Notice to Succeeding Carrier. — \\ here a rail-
road company is accustomed to receive directions from shippers as to forward-
ing goods at the end of its line, and the company does not conform to the direc-
tions given by the shipper, it is liable for delay in the transportation of the
goods. "^"^ Where a railroad company receives freight for shipment under an
agreement to forward it to its destination, and a stipulation that its liability as
carrier shall cease on delivery of the goods to the first connecting line, the con-
tract also providing for "passenger service through," the duty of the company,
as forwarding agent, continues till the goods arrive at their ultimate destination,
and it is therefore liable for any delay caused by its failure to notify each suc-
cessive connecting road of the conditions of the contract in respect to the man-
ner of transportation. 4"^ If a railroad company, outside of its regular contract,
and without an additional consideration, undertakes to deliver a car on the line

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 32 of 214)