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ers. On the 1st of October, 1852, they
published another notice that they would
be liable for damage to cotton "after it
came into their possession, but no fur-
ther." The receipt given by one railroad
contained the clause: "Roads liable for
such injuries only as shall be established
to have occurred while in their posses-
sion." Held, that defendants were not
liable as joint contractors, and a nonsuit
was ordered. Bradford v. South Carolina
R. Co. (S. C), 7 Rich. L. 201, 62 Am.
Dec. 411.

Defendant was the only express coin-
pany in B., and received goods from an-
other company, with which it had a mile-
age agreement, in either of two ways.



one of which, being longer than the
other, was of benefit to defendant, and
for this purpose it sent labels to its cus-
tomers directing goods to be expressed
the longer way, and to plaintiff, a large
patron, it gave a letter addressed to the
other company directing the shipments
to him over the longer route. A con-
signor delivered goods to the other com-
pany consigned to plaintiff which he
never received, and he sued defendant
for the loss. Held not to show any part-
nership between the two companies so
as to charge defendant with the loss, in
the absence of a showing that the goods
were delivered to it. Southern Exp. Co.
V. Saks, 160 Ala. 621, 49 So. 392.

Held, also, that the facts did not show
that defendant had made the other com-
pany its agent so as to render defendant
liable, in the absence of evidence that it
had received the goods. Southern Exp.
Co. V. Saks, 160 Ala. 621, 49 So. 392.

By a contract between plaintiff and a
railroad company whose line connected
with that of defendant, it was agreed
that plaintiff's cattle should be transported
to a point beyond the line of such road,
the liability of the contracting road to
cease at its terminus. From that point
the cattle were hauled over several
roads, and were finally delivered to the
defendant road, which delivered them at
their destination, and collected all charges
for carriage from plaintiff. The Texas
statute. Rev. St.. art. 4251, provides that
every railroad company shall, for a rea-
sonable compensation, draw over its
road, without delay, the passengers, mer-
chandise, and cars of every other rail-
road company which may enter and con-
nect with its road. Held, that the facts
were insufficient to fix any liability upon
defendant, as member of a partnership,
or as joint contractor, for injuries re-
ceived by the cattle on roads other than



3311



RIGHTS. DUTIES AND LIABILITIES.



§§ 3661-3663



§ 3661. Agreement by Carriers, under a Certain Name, to Carry be-
tween Distant Points. — If several railroads forming a continuous line agree,
under a certain name, to carry goods from and to distant points, and if, in so
carrying goods for a party, a portion thereof is lost, such party has his remedy
against such roads as co-partners, and may recover from them jointly or severally
for the loss sustained.^

§ 3662. Carriers under One Management or Holding Themsleves Out
as a Line for Through Transportation.— Where two connecting railroads are
under one management, so as to constitute one system, or have contracts for the
carriage of goods, in which the roads are held out as a line for through transpor-
tation, they are jointly liable as partners for injuries to goods so shipped, though
the general management of each road is retained by the respective companies. ^
A railroad company which receives freight for transportation over its own and
connecting lines, which, by arrangement with it, have united in making the re-
spective roads a continuous line, and collects the freight charges for the entire
route either upon the receiving of the goods or upon delivery at their destination,
is liable for the default of any of the connecting lines, without any special con-
tract to that effect.^

§ 3663. Joint Association for Transmission of Through Freight.

Where several corporations associate, forming a continuous line of common car-
riers, each being empowered to contract for freight and passengers for the whole



its own; its action in hauling such cattle,
as it was required to do by law, not of
itself amounting to a ratification of the
contract. Gulf, etc., R. Co. v. Baird, 75
Tex. 2.56, 12 S. W. 530; Ft. Worth, etc.,
R. Co. V. Williams, 77 Tex. 121, 13 S. W.
637; Ft. Worth, etc., R. Co. v. Fuller, 3
Tex. Civ. App. 340, 22 S. W. 1006. See,
also, Miller v. Texas, etc., R. Co., 83 Tex.
518, 18 S. W. 954; Gulf, etc., R. Co. v.
Dwyer, 75 Tex. 572, 12 S. W. 1001, 7 L.
R. A. 478, 16 Am. St. Rep. 926; Houston.
etc., R. Co. V. Everett, 99 Tex. 269, 89 S.
W. 761. reversing 86 S. W. 17.

An agreement between two railroad
corporations, that any injury to persons
or goods shall be paid for by the one
on whose road it may occur, and that,
when the damage can not be traced to
either, it shall be paid for by each in the
proportion it shares in the through price
of carriage, does not make them partners.
If one has made a contract for the car-
riage of good<; over the roads of both,
an action for its breach can not be main-
tained against the other, if the loss is
not proved to have taken place while the
goods were in its custody, and the agree-
ment is inadmissible. Aigcn v. Roston,
etc.. Railroad, 1.12 .Mass. 423.

Where, by a written contract between
an c.xjiress company and a railroad com-
pany, the latter agreed to "receive, load
and unload, deliver and waybill" all
freight sent by the former, and oIIht
railroads, forming a continuous line willi
the first, made similar agreements, each
to be responsible for all loss or damage
to the goods while in its possession, and
the last road to deduct its charges and
account to the preceding, and so uw to
the first, hehl. (hat the different railroads



did not become partners, and that each
was liable only for its own negligence.
St. Louis Ins. Co. v. St. Louis, etc., R.
Co.. 104 U. S. 146, 26 L. Ed. 679, affirm-
ing Fed. Cas. No. 12,238.

On the trial of an action to charge
three railroad corporations forming a
continuous line with the loss of goods
delivered to one of them for transporta-
tion over the line, without any written
contract, and burned on the road of an-
other, where the evidence was conflict-
ing as to the terms of plaintiff's contract,
and as to what were the arrangements
of the defendants, a ruling that the cor-
porations were liable jointly if either
w'as liable was erroneous. Pratt v. Og~
densburg, etc., R. Co.. 102 Mass. 557.

1. Agreement by carriers, under a cer-
tain name, to carry between distant
points.— Block r. Fitchburg R. Co., 139
Mass. 308, 1 N. E. 348. Compare Irwin
V. New York Cent. R. Co. (N. Y.), 1
Thomp. & C. 473, affirmed in 59 N. Y.
653.

2. Carriers under one management or
holding themselves out as a line for
through transportation. — Al.iliania, etc..
k. Co. ,-■. Lanikiii. TS Mi^s. 502, 30 So. 47.

y\ railroad company is jointly liable
with a connecting line for loss of goods
occurring on the latter line, where l)Oth
ro.ifis were oi)eratcd under one manage-
niiiil ;is ])arts, the gross receipts being
divided l)etween them. Houston, ^c, R.
Co. V. McFadden, 40 S. W. 216, 42 S. VV.
593, 91 Tex. 194; .Missouri, etc.. R. Co. r.
Wells, 24 Tex. Civ. Ai)].. .ioi, 5s S. W.
842.

3. T'liillii.s .-•. N'orth Car..liii;i K. C'o., 78
\. C. 291.



§§ 3663-3664



CARRIERS.



3312



Jine, and to receive pay for the same, which is to be divided in prescribed propor-
tions, they are jointly hable for injuries and losses upon any part of the line.^
Where several connecting carriers form an association for through trafific, and each
company guaranties the bill of lading, each and all of the associated companies
become liable for loss or damage to goods occurring on any part of the entire line.^
Where a traffic association issues a through bill of lading, containing a stipula-
tion that in case of loss, detriment, or damage, the carrier alone shall be liable
in whose actual custody the shipment shall be at the time of the loss, the shipper
is entitled to an uninterrupted and continuous transportation to the point of desti-
nation, and the carrier who has transported the freight to a point where another
is to assume custody and control becomes a guarantor or surety that the latter
will receive it, and is liable as an actual custodian, where the connecting carrier
unreasonably neglects or refuses to receive it.^

§ 3664. Establishment of Joint or Through Tariffs of Rates.— The
establishment by two or more common carriers of joint or through tariffs of
rates does not make them joint carriers, or one of them liable for the default of
another^ But the liability of railroad companies is that of joint contractors,.



4. Corporations forming a joint asso-
ciation jointly liable for injuries and

losses.— Barber & Co. z'. Wheeler, 49 N.
H. 9, 6 Am. Rep. 434.

Where carriers on connecting routes
form associations and arrangements for
the purpose of carr3'ing goods or parcels
through the whole line, they are, beyond
question, partners, and each is responsi-
ble for any loss or injury to goods which
may happen, in whatever part of the line
it occurs. Coates v. United States Exp.
Co., 45 Mo. 238.

In an action by a shipper against a
railroad company for loss of goods on a
connecting line, it appeared that the
goods were delivered to defendant marked
for a point beyond Its line, to be trans-
ported to the connecting line and by it
to be forwarded to the point of desti-
nation, and that the entire freight was
paid to defendant. There was no special
agreement that the goods should be
transported bj^ defendant to the point of
destination, or that defendant's liability
should end on delivery to the connect-
ing line. Held, that defendant could
contract for the transportation of goods
beyond its own line, and was liable for
a loss on the connecting line, it appear-
ing that its line and the connecting line
united in one continuous route, over which
goods were carried for one price under
an agreement by which the freight was
divided among the associated carriers in
proportions fixed by the agreement.
Nashua Lock Co. v. Worcester, etc., R.
Co., 48 N. H. 339, 2 Am. Rep. 242.

But in Arkansas it has been held that
a joint association of carriers for the
transmission of through freight and pro-
portionate division of receipts does not
constitute them partners, nor render them
jointly liable for goods so transported.
Hot Springs R. Co. v. Trippe & Co., 43
Ark. 4G5,^ 48 Am. Rep. 65.

5. Liability of carriers forming associa-



tion for througli traffic and each guaran-
teeing bill of lading. — Baltimore, etc., R.
Co. r. Wilkens, 44 Md. 11, 22 Am.
Rep. 26.

6. Liability under through bill of lad-
ing issued by traffic association. — South-
ard V. Minneapolis, etc., R. Co., 60 Minn.
382, 62 N. W. 442! 619.

7. Effect of establishment of joint or
through tariffs of rates. — Wehmann v.
Minneapolis, etc., R. Co., 58 Minn. 22,
59 N. W. 546.

Three comm.on carriers ran lines of
transportation, each covering a part only
of a certain continuous line of through
transportation of goods. A rate of freight
fixed by mutual agreement was charged
for the through service, collected by the
carrier whose line included the end of
the route, and divided between the three
in an agreed proportion. Held, that no
partnership or joint liability to shippers
of goods was created by these facts. Gass
V. New York, etc., R. Co., 99 Mass. 220,
96 Am. Dec. 742.

The defendants were a joint-stock cor-
poration organized for the purpose of con-
ducting the business of common carriers
by water between N. and L. They had
made a contract with a railroad company,
whose line ran from L. to S., by which
it was agreed that their boats should run
daily in connection with certain trains
upon the railroad; that through freight
received for transportation over the routes
of both companies should be carried at
reduced rates; that the receipts from
such freight should be divided in certain
proportions between them; that the rail-
road company should build a wharf and
depot in L., where both companies could
transact their freight business, the de-
fendants paying a rent for their use of it,
and which contained other minor pro-
visions, directed to the same general pur-
pose of securing a through-freight busi-
ness for the benefit of both. Goods hav-



3313 RIGHTS, DUTIES AND LIABILITIES. §§ 3664-3669

where several companies enter into an arrangement to carry freight over all their
lines for one through-fare in solido, payable at the terminus, and pledge them-
selves collectively to give satisfaction, so as to evidence by this and other acts
an intention to contract collectively; and one of the companies is liable in a suit
for damage to freight, though the injury did not occur on its road.^ A bill of
lading guarantying a through rate to destination does not establish an agency or
partnership relation between the connecting railroads, so as to render one liable
for the default of the other. ^

§ 366 5. Arrangement as to Payment and Collection of Freight
Charges. — If an arrangement is made between several connecting lines of trans-
portation for carrying goods by which each carrier subsequent to the first pays-
what is due for freight when the goods are delivered to him, and the last carrier
collects the whole bill of the consignee, though these accounts are settled period-
ically, and each route stipulates to charge only certain rates, such an arrangement
does not constitute a partnership or joint liability, and each line is liable only for
injury caused by its own negligence. ^*^

§ 3666. Contracts of Shipment Made with Joint Agent of Carriers. —

Where a contract of shipment is made with the vice principal and agent of two
connecting lines, who divide the proceeds of through shipments, for such a ship-
ment, and subsequently, on receipt of the goods, bills of lading are issued by the
joint agent of the companies at that point, the jury are justified in finding that the
contract is joint on the part of the companies. ^^

§ 3667. Liability for Negligence of Joint Agent. — Connecting carriers
are jointly liable for injury through the negligence of their joint agent to goods
in transit over their lines. ^^

§ 3668. Damages to Freight Resulting from Violation of Traffic
Agreement. — A shipper of freight over one of two roads acting under a traffic
agreement to use each other's lines can not recover from the other for damages
to goods shipped resulting from an alleged violation of the traffic agreement by
such other road.^^

§ 3669. Agreements Not Exempting Carrier from Liability to Owner
of Goods. — A railroad corporation which has leased a portion of another rail-
road connecting with its own is not exempted from liability to the owner of goods
delivered to it at a depot on the portion so leased, by an agreement with the pro-
prietors of that road, by which the two corporations upon their respective roads
mutually agree to furnish suitable depot accommodations, and receive and deliver
freights, and that the liability of the first corporation for upward freight upon the
road of the second shall not commence until delivery on the cars of the first.^"*

inpf been shipped at N. for transportation collection of freight charges. — Darlinpr ''.

to S., the defendants gave a written re- Boston, etc., R. Corp. (Mass.). 11 .Mien

ceipt for them as received "on board the 295.

Norwich and Worcester boat, 1)ound for ii_ Contracts of shipment made with

S. Held that, m the absence of further joint agent of carriers.— Swift v. Pacific

evidence of an express contract, the de- Mail Steamship Co., lOG N. Y. 206, 12 N.

fondants were only bound to carry the p -jg-^

f?oods to L., and there deliver them to ',„ t . - .u;!;*,. t^^ ^^ori:^^.^^^ ^c ;^;^*.
»!,„ ,^:i_, 1 1 .^1 ^ 12. L.iability tor negligence or lomt

hlK T ^^'"^"^"y- ^"' tl^Y,.^'-^ "°t 3gent._Kansas. etc.. R. Co. v. Kn I,ry,

ahl or loss occurnnR alter delivery to f^ • g ^

the railrfKid company. Converse v. Nor- . , .

wich. etc.. Transp. Co.. Xi Conn. IftG. 13. Damages to freight resultmg from

8. Firadford v. South Carolina 1^. Co. violation of traffic agreement.— St. I.ouis,
(S. C), 7 Rich. I.. ;.'0I, <\'t Am. Dec. 111. '■•_<;• ''^- ^'^'- ''• -^'^'^'l' •''' '^^k. ;.'T'.t, 10 S. W.

9. Effect of bill of lading guaranteeing •"'•'•

through rate to destination. — Chesapeake, 14. Agreements not exempting carrier

ftr., \i. C!r). z: Stock ik Sons. 104 Va. U7, from liability to owner of goods. — ^Mc-

M S. I",. 101. ChuT 7'. .Maiicluster, I'lc, ivailroad

10. Arrangement as to payment and (.Mass.), 13 Cray 121, 74 Am. Dec. (;;J1.



§§ 3669-3673 carriers. 3314

Where two railroad companies operate a continuous line of road between cer-
tain points under a contract by which one of them furnishes all the cars, motive
power, and employees for the carriage of freight over its portion of the line,
such carrier is an independent contractor, and as such liable for the negligence
of its servant in misbilling freight over such continuous line, even though it
stands in the relation of agent to such other company. ^-^

§ 3670. Contract Making- Payment of Freight Charg-es or Indorse-
ment of Guarantee on Waybill Essential to Delivery. — Where two railroad
companies agree that neither will consider goods as having been delivered to the
other for transportation unless there has been payment of freight charges or an
indorsement on the waybill of "freight charges guarantied," and goods are burned
after being transferred from one to the other, but before the latter company has
received the certificate of "freight charges guarantied," the former is liable for
the loss.'^

§ 3671. Diversion by First Two Carriers and Receipt by Third with-
out Sufficient Shipping Instructions. — Where a shipment routed over speci-
fied connecting lines is diverted by the first two carriers without authority to a
line not included in the contract, and that line receives the shipment without suffi-
cient shipping instructions, the three carriers are jointly and severally liable for
loss resulting to the shipment.^"

§ 3672. Injuries to Live Stock from Failure to Properly Feed Them.

— Connecting carriers of live stock are jointly and severally liable for injuries to
the stock resulting from failure to properly feed the same during transportation,
where such neglect begins on the initial line and continues to the point of destina-
tion.^^

§§ 3673-3690. Carriers of Passengers— § 3673. Traffic Arrange-
ments between Carriers. — It is not ultra vires for a railroad corporation to
agiee with other railroad corporations upon such terms of co-operation in trans-
acting their joint passenger business as may be satisfactory. '^'^ Where the lines
of several railroad corporations are conducted as a single system for the purposes
of the traffic between different points originating upon either, the corporations
may constitute themselves a partnership for the business of such traffic ; and when
they do, although the general management of each road is retained by the cor|)ora-
tion owning it, the several corporations are, as to such business, partners, and lia-
ble upon the principles of the law of agency.-"

15. Judgment 92 111. App. 391, affirmed traffic between different points originat-
in Illinois Cent. R. Co. v. Foulks, 191 ing upon line of either. — Lehigh Valley
111. 57, 60 X. E. S90. R. Co. 7'. Dupont, 61 C. C. A. 178, 128

16. Contract making payment of freight ^'^,"?" ^^*^" , ,. r i -i j
charges or indorsement of guarantee on \\'here the lines of several railroad cor-
waybill essential to delivery.— Palmer v porations are conducted as a single sys-
Chicago. etc., R. Co., .56 Conn. 137, 13 tern, for the purpose of _ the traffic be-
^|.j gj^g tween different points, originating on ei-

i- T-v- • u c J. ^ - • J ther, and such corporations divided the

I- ?T TJ"^ first two carriers and '^eds of such business on a mileage

receipt, by third without sufficient ship- \ ■ j^ ^ ^^^j corporations as to such

p ng instructions.-Drake v ><as ^ville, ^,,,,;,,,,, .^^re partners, and liable to third

etc., R. Co., 120 Tenn. 62., 148 S. W. 211. p^^^^^^ ^,^ ^,^^ principles of the luw of

18. Injuries to live stock from failure agencv. Lehigh Valley R. Co. v. Du-
to properly feed them.— Baltimore, etc., pont, 128 Fed. 840, 64 C. C. A. 478.

R. Co. ^r. Wood & Co., 130 Ky. 839, 114 But \r\ Illinois it has been held that the

S. W. 734. f^(^^ ^^l-,^(. each of two connecting lines

19. Co-operative agreement for trans- sells through tickets, taking its own
acting joint passenger business not ultra share of the price according to its mile-
vires. — Lehigh Valley R. Co. z'. Dupont, age, does not constitute them partners.
64 C. C. A. 478, 128 Fed. 840. Chicago, etc., R. Co. v. Mulford, 44 N. E.

20. Partnership between carriers as to 861, 162 111. 522, 35 L. R. A. 599.



3315 RIGHTS, DUTIES AND LIABILITIES. §§ 3674-3677

§ 3674. System of Dominant and Subordinate Carriers. — When a re-
lation of joint and several agency exists in a system of dominant and subordi-
nate carriers, the dominant carrier is liable for all breaches of obligation by any
of the the other constituent carriers in the performance of a contract made by it
for the transportation of passengers.-^

§§ 3675-3678. Transportation beyond Carrier's Line— § 3675.
Duty to Transport. — A carrier can not be compelled to transport beyond its
termini. - It is only because the carrier has voluntarily contracted to do so that
it can be required to transport a passenger over any other than its own line, and it
results that, like other contracting parties, it may define the terms and limit the
extent of its undertaking over other lines, insomuch as may be required to leave
upon them the responsibilities of their own negligence.^^ Where a passenger's
route is over connecting lines of independent carriers, the first carrier discharges
its duty when it delivers the passenger at the end of its own line ready to continue
the transportation on the connecting line, and is not liable for the connecting car-
rier's failure to perform its independent contract.-^

§§ 3676-3678. Contracts for Through Transportation— § 3676.
Power to Contract. — One railroad corporation may make a contract with a pas-
senger to carry him beyond its own road and upon or over the connecting roads
of other railroad corporations and assume towards him all the ordinary obliga-
tions of a passenger carrier during the transit.-^ The contract, being incidental
to one to carry him over its own road, is not ultra vires. -^ Such a contract may
be express, or may be implied from the carrier's acts.-'

A part owner of one of several lines for the transportation of passengers,
running in connection over different portions of a route of travel, may contract as
principal for the conveyance of a passenger over the whole route. -^

§ 3677. What Constitutes a Contract for Through Transportation —
Effect of Contract. — If a railroad company contracts to carry passengers, not
only over its own line, but also over the line of another company, either in whole
or in part, the company so contracting incurs all the liability which would attach
to it if it contracted solely to carry over its own line. 2'-* A carrier may so issue
its passenger tickets and so conduct itself as to have the purchasers understand
that it undertakes to carry them to a point beyond the terminus of its route, in

21. System of dominant and subordi- An authority to operate a road, and to
nate carriers. — Lehigh Valley R. Co. i'. "cross and intersect" other roads, author-
Dui)ont, Ci C. C. A. 47S, 12S Fctl. S40. izcs a railroad company to issue "through

22. Carrier can not be compelled to tickets," operating as evidence of a con-
transport beyond its termini in absence tract for conveyance over connecting
of contractual obligation. — Atchison, etc., roads. Illinois Cent. R. Co. 7'. Copeland,
k. Co. :■. Roach, :;r, Kan. 740, 12 Pac. 93, 24 111. 332, 76 Am. Dec. 749.

•'■''„,^'"V '^'-;''- ^-^T^; ^ o 26. Lehigh Valley R. Co. v. Dupont,

23. Hams v. Howe, 74 Tex. .534, 12 S. ^4 C. C. A 478, 128 Fed. 840.

W. 224, .') L. R. A. 777, 15 Am. vSt. Rep. or* nr. ♦ ^* 1 u ^ • i- ^

862. See post, "Contracts for Through 27. Cor^ract may be express or implied.

24. When initial carrier's duty and li- '^ V'"'^^ J^"S-\'''= I" ^"JV ' ';!."^-



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 40 of 214)