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take on any particular trip, notwithstanding the issuance of a bill of lading, that
it should only be liable for damages occurring to freight on its own line.^*^

Duty to Notify Initial Carrier or Shipper. — A connecting carrier, on being
notified by the ultimate carrier to whom it delivers goods, which require rapid
transportation, that the goods will not be forwarded mitil all freight charges are
paid, is guilty of such negligence as will render it liable for the loss of the goods
from a failure to forward them, in failing for eighteen days to notify the initial
carrier or the shipper of the refusal to forward them, although the contract of
shipment provides that the road in whose actual custody the goods are at the
time of any loss or damage shall alone be responsible.^^

§ 3742. Delivering Stock to Stockyard Company. — Where the contract
of shipment of stock limits the liability of the railroad to deliver to a connecting
line, and the stock is delivered to a stockyard company, to be redelivered to the
connecting line, the railroad is liable for injuries to the stock while in the hands
of the stockyard company.-''- If a carrier of live stock binds itself by contract to
deliver such stock to a connecting railway, it can not transfer such duty to an-
other, so as to free itself of liability for a failure to so deliver.^^ Such com-
pany's possession is that of initial carrier, which is liable until stock is delivered
or tendered to connecting line.-'^'* And where animals escape or are killed be-
fore delivery to the connecting line, if the stockyard company captures two es-
caped horses, and proposes to return them to the shipper, charged with yard
expenses, the shipper is not bound to receive them so charged, and such facts are
no defense in suit for value. ^^ Evidence in an action against carriers for in-
juries to a shipment of cattle considered, and held sufficient to authorize an
mstruction that it was the duty of the initial carrier to transport the cattle to a

49. Refusal of succeeding carrier to was thereafter shipped on a different ves-
receive shipment. — Southard v. Minneap- -el, to plaintiff's damaiic. Held, thai de-
olis, etc., R. Co., 60 Minn. 382, 62 N. W. fendant railroad company was lial)le for
442. I^reach of contract, notwitlistanding- the

50. Carrier guilty of breach of contract issuance of a bill of lading, providing that
to ship by specified steamer. — Defendant's it should only be liable for damages oc-
railroad line conntcled at P. with a line of ourring to freight while on its own line,
s-tearners for Liverpool. Plaintiff's agent, and that its liability as a common carrier
desiring to ship 100 bales of cotton for ceased on tendering the freight to its
plaintiff, applied to defendant railroad connecting carrier, etc. Louisville, etc.,
company for a rate for such amount to R. Co. v. Williams, 5 Ala. .'Xpp. 615, 56
be shipped on a specified date l)y a spec- v^o. 865.

ified steamer. Defendant, before an- 51. Duty to notify initial carrier or

swering, ascertained whether the steam- shipper.- Bird v. Railroads, 09 Tenn. (15

ship company would accept the cotton for I'ickle) 719, 42 S. W. 451, 6;{ Am. St.

that steamer, and, being informed that it l^ep. 856.

would, named the rate, and agreed by tel- 52. Delivery to stockyard company. —

tgraph to ship the cotton on that date Gulf, etc., i\. Co. v. Ivldins, 7 Tc.x. Civ.

by the steamer named. Defendant com- .Ipp. 116, 26 S. W. 161.

pany transported the cotton to the dock, 53. Gulf, etc., R. Co. ?'. lubbiis, 7 Tex.

■end tendered the same to the steamship Civ. App. 116, 26 S. W. 161.

company, but the master refused it, un- 54. Gtdf, etc., R. Co. v. Kddins, 7 Tex.

rcr an alleged custom authorizing him to Civ. App. 116, 26 S. W. 161.

say what freight he would take or refuse 65. Gulf, etc., R. Co. v. TCdflins, 7 Tex.

on any particular trip, and the cotton Civ. App. 116, 26 S. W. 161.

4 Car— 17



3742



CARRIERS.



3364



certain point, and there deliver them to a connecting carrier.-''^

§ 3743. Duty to Notify Shipper of Inability to Deliver. — Where goods
are received under a contract restricting the Ha1)iHty of the initial carrier to
their delivery at its terminus, it is then bound to deliver them there with all
convenient speed, according to the usual course of business, to the next carrier ;
and if there is none ready at the terminus to receive the goods and forward them
along the proper route, then it ought to retain them and notify the owner. •"''''

§ 3744. Breach of Contract by Initial Carrier. — Where an initial carrier
refuses to perform its contract it has no right to claim the advantage of a stip-
ulation limiting its liability to its own line. In such case it has forfeited such
right and becomes liable to the full extent of the law the same as if there had
been no special contract.-"'^

Violation of Shipping Directions. — Where the bill of lading limits the lia-
bility of connecting carriers to the road inflicting the injury, the initial carrier
is liable to the shipper for damages caused by its violation of his express direc-
tions given at the time of delivery.-^"

Failure to Follow Directions in Bill of Lading-. — It is the duty of a suc-
ceeding carrier to follow the shipping directions in the bill of lading rather than
those marked on the package or article shipped and its failure to do so deprives
it of the benefit of stipulation in the bill of lading limiting its liability.'''*^

Breach Caused by Mob. — Nonperformance of a special contract to ship live
stock to an extraterminal point is not excitsed by a mob's having prevented it,
although liability for extraterminal loss was expressly stipulated against ; be-
cause, having failed to transport it, no such loss could occur.^^

Restraint of Princes, Rulers or People. — The mistaken refusal of the
deputy collector of a port to grant a clearance while certain freight was on board
because it was contraband of war does not constitute a "restraint of princes,
rulers, or people," within the meaning of a clause in the bill of lading, so as to
excuse nonperformance of the agreement to forward the shipment by that vessel.*"'-



56. Texas, etc.. R. Co. v. Felker, 44
Tex. Civ. App. 420, 99 S. W. 439.

57. Duty to notify shipper of inability
to deliver. — Louisville, etc., R. Co. v.
Campbell, 54 Tenn. (7 Heisk.) 253.

58. Breach of contract by initial car-
rier. — Plaintiff shipped a lot of sheep from
Arkansas to Texas, over connecting lines
o^ railroad, defendant's line being one of
said connecting lines. The contract of
shipment, made in Arkansas, contained a
limitation in favor of the carrier, restrict-
ing the common-law liability of carriers.
It also stipulated that the owner of the
sheep might be transported on the same
train, which conveyed the sheep, free of
charge, and also that said owner had the
privilege of having the cars containing
his sheep side-tracked. Defendant re-
fused to transport plaintiff free of charge,
and refused to side-track the cars con-
taining the sheep v/hen requested to do
so by plaintiff. Held, that defendant
could not claim the advantages stipulated
for in the contract, but was liable as a
common carrier, without regard to the
contract. Texas, etc.. R. Co. v. Davis, 2
Texas App. Civ. Cas., § 191.

59. Violation of shipping directions. — -
Atlantic, etc., R. Co. v. Richardson, 121
Tenn. 448, 117 S. W. 496.

60. Failure to follow directions in bill of



lading. — Plaintiff desiring to ship an au-
tomobile to Miami, Fla., shipping receipt
and the shipping order gave Miami as
the destination, via defendant's steamship
line to Key West, with direction to notify
M., and the automobile was so marked;
but defendant sent a bill of lading, in
which Brunswick was stated as the port,
instead of Key West, where it was to be
delivered to a connecting carrier at the
owner's risk, and it also contained the
direction to notify M. at Miami. Plain-
t'iff sent the l)ill of lading to the port of
destination, with draft attached for col-
lection. Defendant carried the automo-
bile to Key West and delivered it to a
sailing vessel, the master of which took
it to Miami and delivered it to M. with-
out requiring the bill of lading or other
authority. Held, that defendant's duty
was to follow the directions in the bill of
lading rather than those marked on the
automobile and in the shipping receipt,
and its failure so to do rendered it lia-
ble for the value of the automobilov
Waltham Mfg. Co. v. New York, etc..
Steamship Co., 90 N. E. 550. 204 Mass.
253, 17 Am. & Eng. Ann. Cas. 837.

61. Breach caused by mob. — White z\
Missouri Pac. R. Co., 19 Mo. App. 400.

62. Restraint of princes, rulers or peo-
ple. — Decree, Farmers' Loan, etc., Co. v.



3365



LIMITATION OF LIABILITY,



3745.3746



§ 374 5. Modification or Rescission. — Special Contract as Prevailing
over General Stipulation in Bill of Lading-. — A special contract for liability
over the whole route made Ijy the shipper with the general agent of the road is
not affected or altered by the fact that the bill of lading issued for the goods and
delivered to and received by a clerk of the shipper contains the usual stipulation
that the carrier is not to be liable beyond its own line.''"'

Effect of Bill of Lading of Initial Carrier on Contract of Terminal
Carrier. — A verbal agreement to furnish refrigerator cars for the transportation
of milk over the whole route, made by the terminal carrier to induce plaintiff to
send it to the terminal carrier for transportation to its destination, is not super-
seded by a subsecjuent written contract expressed in the bill of lading issued by
the initial carrier, by which the latter sought to limit its liability.*^'*

Receipt Given by Connecting Carrier a New Contract. — ^^'here an ex-
press company receives goods under a contract exempting it from liability, ex-
cept for fraud or gross negligence, with a stipulation that the contract shall inure
to the benefit of any connecting carrier, the fact that a connecting carrier makes
a new and different contract, evidenced by a new receipt, precludes it from
claiming under the original contract. *^-^

§ 3746. Merger of Verbal Contract by Subsequent Written Agree-
ment. — Where a verbal contract for a shipment to a certain point for a specified
sum was made several days before the shipment, a subsecjuent written contract
signed by the consignor, and limiting the liability of the shipper to its own line,
IS without consideration ; and it need not be shown that the written contract was
entered into by the consignor through fraud, mistake, or duress.*''*^ But such
verbal contract must be shown by competent proof. *'''^

Written Contract Contemplated by Parties. — Where, at the time of a
parol contract between a shipper and the carrier, the shipper expected to sign a
written contract, and he subsequently did so, he was not in a position to avoid
the force of provisions in the written contract limiting the liability of the carrier
to damages occurring on its own line.^^ And the doctrine that a subsecjuent



Xorthern Pac. R. Co., 120 Fed. 873, 57
C. C. A. 5.33, affirmed in Northern Pac.
R. Co. V. American Trading Co., 25 S.
Ct. 84, 195 U. S. 439, 49 L. Ed. 269.

63. Special contract as prevailing over
stipulations in bill of lading. — Xorthern
J'ac. R. Co. V. American Trading Co., 195
U. S. 43!i, 49 L. Kd. :.'(i9, :i.-) S. Ct. '-'4.

64. Effect of bill of lading of initial ear-
lier on contract of terminal carrier. — St.
Louis, etc., R. Co. v. Elgin Condensed
Milk Co., 74 III. App. 619, 13 Am. & Eng.
R. Cas., X. S.. 112.

65. Receipt given by connecting carrier
a new contract. — Browning v. Goodrich
Transp. Co.. 7 8 Wis. 391, 47 N. W. 428,
23 Am. St. Rep. 414, 10 L. R. A. 415.

66. Merger of verbal contract by subse-
quent written agreement. — .McManus v.
Cliicago, etc.. R. Co., 138 Iowa 150, 115 N.
W. 919; San Antonio, etc., R. Co. v.
Wright. 49 S. W. 147, 20 Tex. Civ. App.
i::6.

67. In an action against a carrier for
damages to a shipment over the lines of
(icfcndant and a connecting carrier, where
a written contract limited defendant's lia-
bility to its own line, in the absence of



competent proof sustaining an oral agree-
ment for through shipment, defendant
was not chargeable with damages on a
connecting line. McManus v. Chicago,
etc., R. Co., 138 Iowa 150, 115 N. W. 919.

68. Written contract contemplated by
parties. — Cliicago. etc.. R. Co. t'. Halsell,
81 S. W. 1243, 36 Tex. Civ. App. 522.

Where plaintiff, who was in the habit
of shipping stock over defendant's line,
for which he always signed written con-
tracts, made a verbal contract with de-
fendant's agent as to the rate, and plain-
tiff's agent signed a written contract lim-
iting the liability of the company to its
own line, it was error to refuse to in-
struct "that if, from previous dealing
with defendant, plaintiff or his agent
knew that it was the regular rule for the
shipper to sign such a written contract,,
and that if when plaintiff inquired the
rate he contemplated entering into such
written contract at the time of shipment,,
and that if he knew or could have known
from previous dealing what stipulations,
were in such contract, the verdict should
be for defendant." I"t. Worth, etc.. R.
Co. V. Wright, 58 S. W. 846, 24 Tex. Civ.
App. 291.



§§ 3746-3749 carriers. 3366

written contract must be taken as merging all previous understandings between
the parties prevails.^''

§ 3747. Parol Evidence to Explain Ambiguity. — Where a receipt, given
by a railroad company for goods to be transported to a consignee at a point be-
yond the terminus of its line, contained the words, "Care R. R. agt., Callahan,"
this was an ambiguity which could be explained by parol; and if it appeared
that the words meant that the goods were to be delivered to the agent of another
road at Callahan, and that the first company was bound only for such delivery,
there would be no liability upon the first company beyond that point.' '^

§ 3748. Waiver and Estoppel, — Where written contracts for the transpor-
tation of cattle, executed en route, limited the carriers' liability to their own
lines, but did not purport to cover shipments beyond M. by virtue of an oral
agreement made at the instance of the carrier's agent to conceal the real des-
tination of the cattle, such carrier was estopped to contend that its liability was
limited to injuries occurring on its own line."^

§§ 3749-3754. Enforcement— § 3749. Plea or Answer.— The allega-
tions of a plea showing nothing more than the ordinary and usual relations be-
tween connecting carriers in a contract of shipment over several lines does not
charge such a partnership as makes each responsible for the acts of the other,
although the contract provides against such liability. If the agent of the initial
carrier was also the agent of the succeeding carrier and authorized to bind it by
the terms of the contract, that fact would not alter the essential terms of the
contract which limited its liability to damage on its own line."^

Denial of Allegation on Oath. — Where a partnership between connecting
carriers is alleged in a petition in an action against a railroad for damages for
negligence and delay in transporting stock, and is not denied on oath, the defend-
ant railroad will be liable for damages, whether they occurred on its own or con-
necting carrier's road."^

89. Merger of previous contracts. — In etc., R. Co. z'. Carroll, 36 Tex. Civ. App.

an action against a railroad company for 359, 81 S. W. 1020.

damages to cattle received during their 72. Plea or answer. — Kessler v. First

carriage over its own and a connecting Nat. Bank, 21 Tex. Civ. App. 98, 51 S. W.

line, defendant introduced written con- 02; Texas, etc., R. Co. z>. Gray, 45 Tex.

tracts for the shipment of the cattle to a Civ. App. 208, 99 S. W. 1125.

point on defendant's line, and which lim- "The language of the plea in Interna-

ited its liability to damage occurring on tional, etc., R. Co. f. Tisdale, 74 Tex. 8,

its own line. Plaintiff claimed that the 11 S. W. 900, is not set out in full, and

cattle had been loaded under a verbal there seems not to have been any ques-

agreement for through carriage, and that tion made that it did sufficiently charge a

he had been forced to execute the writ- partnership, so that upon this point it is

ten contracts in order to get the cattle not authority. It is to be noted that in

moved, and that, although the written that case there was no provision in the

contracts called for delivery at a point on bill of lading limiting the liability of each

defendant's line, the real contract was carrier to its own line." The case is not

for through shipment. The only evi- in point or to any extent, controlling the

dence as to the wiitten contracts showed decision of the present case. Texas, etc.,

that they were executed by plaintiff's di- R. Co. t. Gray, 45 Tex. Civ. App. 208, 99

rection in order to secure free transpor- S. W. 1125. See Western Union Tel. Co.

talion for his helpers. Held that, in the v. Lovely (Tex. Civ. App.), 52 S. W. 563.

absence of any evidence of fraud, com- 73. Denial of allegation on oath. — At-

pulsion, or want of time to read the writ- chison, etc., R. Co. v. Grant, 6 Tex. Civ.

ten contracts, they must be taken as App. 674, 26 S. W. 286, affirmed in 93

merging all previous understandings be- Tex. 699, no op.

tween the parties. San Antonio, etc., R. In the case of Gulf, etc., R. Co. v.

Co. z.\ Barnett, 66 S. W. 474, 27 Tex. Civ. Baird, 75 Tex. 256, 12 S. W. 530, which

App. 498. is very similar to the present case, by

70. Parol evidence to explain ainbigu- the terms of the shipping contract the is-
ity. — Savannah, etc., R. Co. z\ Collins, 77 suing carrier expressly limited its own
Ga. 376, 3 S. E. 416. 4 Am. St. Rep. 87. liability to damages occurring on its

71. Waiver and estoppel. — Chicago, own line, but there was no such express



3367 . LIMITATION 0^ LIABILITY. §§ 3750-3751

§ 3750. Nonsuit. — In an action against a carrier for injuries to freight
shipped, where the evidence showed that under the special contract of affreight-
ment the liabihty of each of the connecting carriers was hmited to loss occurring
on its line of road, and also that the delay which caused the loss occurred before
the shipment was turned over to the carrier sued, a nonsuit was properly
granted."'*

§ 3751. Presumption and Burden of Proof. — Limitation Not Pre-
sumed. — When, in an action against a common carrier, it appeared that goods
had been delivered to an initial carrier, and by it delivered to the defendant car-
rier, to be transported to the point of destination, and that the goods were lost
while in defendant's custody, and there was no proof as to the terms on which
either carrier received them, in the absence of any proof to the contrary, the
defendant carrier should be presumed to have received them for transportation
to the owner under such obligations as to diligence, etc., as the law imposes on
common carriers, who do not, by contract, limit their liability. '''^

Place of Loss. — In order to recover from a carrier who has by contract
limited its liability for injury to goods to its own line, the shipper must show that
damage took place before the goods left its hands."^*^ ^^'here property has been
transported by successive carriers, under a through bill of lading, limiting each
carrier liable to damages occurring on its own line, and is damaged, and the evi-
dence fails to show on what line the damage occurred, it will be presumed that it
was through the negligence of the terminal carrier."'^

Proof of Partnership. — Where the receipt given by a carrier on accepting a
shipment of cattle relieved it from liability for injuries on connecting lines, and,
in an action by the shipper against it and the connecting carriers, the complaint
alleged partnership and agency between the carriers, which allegation was denied
by the initial carrier's plea, and not sustained by evidence, it was not jointly liable
for the negligence of connecting carriers.'''^

Contract Executed by Authority of Defendant Carrier. — A carrier is
liable for delay in the transportation of live stock on a connecting road without

limitation of liability as to the connect- A car of goods was delivered in good

ing carriers, as in the present case. condition to an initial carrier, no rain

There was a plea of partnership. Such fell on the car while m its possession, and

contract was, however, held to be incon- the car was delivered b}^ it to the next

sistent with the holding that the contract succeeding carrier in good condition,

was one made by a member of a partner- The second carrier delivered the car to

ship. If by the failure to deny the spe- the third connecting carrier, and after

cial plea under oath, its allegations are the third carrier took possession no rain

to be taken as true, together v/ith every fell on the car, and, when opened bj' it

reasonable inference deducible there- to transfer the goods the sacks in which

from, still the contract itself was intro- the goods were contained were wet and

duced in evidence by appellee, and the muddy. No damage was shown to have

terms thereof are inconsistent with a been done to the goods while on the

holding of partnership between the con- third carrier's road, and they were

necting lines. Gulf, etc., R. Co. v. Loo- turned over by it to the terminal

ncy, 85 Tex. 1.58, 19 S. W. 1039, 34 Am. line. Held, where the ^through bill

St. Rep. 787, 16 L. R. A. 471; Ft. Worth, of lading on which the goods were con-

etc, R. Co. V. Williams, 77 Tex. 121, 13 signed provided that each company shouM

S. W. G37; Texas, etc., R. Co. v. Gray, 45 be liable only for damages occurring on

Tex. Civ. App. 208, 99 S. W 1125. its line, the third connecting carrier was

74. Nonsuit. — Bell Bros. v. Western, not liable for any damage resulting froni
etc., T^Co.. y.ir, Ga. 510, 54 S. E. 532. the condition of the goods when they

75. Limitation not presumed. — Southern arrived at their destination. St. Louis,
Exp. Co. z: Uniuhart, 52 Ga. 142. etc.. R. Co. v. Cohen (Tex. Civ. App.).

76. Place of loss.— New York, etc., 55 S. W. 1123.

Steamship Co. v. Wright (Tex. Civ. 78. Proof of partnership. — Judgment.

App.), 20 S. W. lOr,. 74 S. W. 1118, reversed in International,

77. Texas, etc., R. Co. v. Adams, 78 etc., R. Co. v. Startz, 77 S. W. 1. 97 Tex.
372, H S. W. GGG, 22 Am. St. Rep. 5G. 107.



§§ 3751-37SS CARRIERS. • 3368

proof that it received part of the freight, when the contract of shipment is ex-
ecuted by its authority."^

§ 3752. Weight and Sufficiency. — See ante, ''Presumption and Burden
of Proof," § 3751.

§ 3753. Questions for Jury. — When a contract Hmiting a carrier's hability
for freight to such damages as result from its negligence prior to dehvery to a
connecting carrier has been made, it is for the jury to determine from the evi-
dence, under proper instructions from the court, whether or not the damage or
injury complained of occurred while the freight was in its possession or upon
its line of road.^*^

§ 3754. Instructions. — Where a railroad company's contract for the ship-
ping of stock limited the liability of the carrier to its own line, an instruction
should be given, in an action for injury to the stock, that defendant would not be
liable, for injuries resulting after the stock passed out of its possession, ''i and it
is prejudicial error to give and refuse instructions whereby its liability is ex-
tended beyond its own line.*- But an instruction, liable to mislead the jury into
believing that the defendant carrier would not be liable for damages occasioned
by its negligence where the injuries which occasioned the damages did not de-
velop until thev were delivered to a coimecting carrier, should be refused.'^-'

Evidence Showing Damage after Delivery to Succeeding Carrier. — Un-
der a contract stipulating that after defendant's delivery of the goods to a con-
necting line it should not be liable for injuries, the evidence showing that a large
part of the damages were sustained after such delivery, the court should have in-
structed that the defendant was not liable therefor.'^"*

§ 3755. Damages. — "V^alue at Destination an Element of Damage. —

Although there may be a stipulation in the contract limiting the liability of the
carrier to its own line of road, a contract of shipment made under such circum-



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 50 of 214)