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stances contemplates that the market value of the animals shipped at the place
of final destination is considered by the parties and enters into the contra'ct as
one of its elements. ^^

79. Contract executed by authority of for loss occurring on its own line, that
defendant carrier. — International, etc., R. if all the damage did not result from de-
Co. T'. Anderson, 3 Tex. Civ. App. 8, 21 fendant's negligence, and the jury were
S. W. fiOl. unable to determine what amount of the

80. Questions for jury. — Norfolk, etc., damage accrued while the cattle were in
R. Co. V. Reeves, 97 Va. 284, 33 S. E. its hands, they should return a verdict
(iOG. for defendant, was properly refused, as

81. Instructions. — International, etic, it v»as liable to mislead the jur}' into be-
R. Co. z'. V'oung (Tex. Civ. App.), 72 S. lieving that defendant would not be li-
W. 68; International, etc., R. Co. v. Earn- able for damages occasioned by its neg-
est (Tex. Civ. App.), 77 S. W. 29. ligence, where the injuries which oc-

82. Where cattle were carried by two casioned the damage did not develop
lines, under a contract limiting the lia- until the cattle were delivered to a con-
bility of each carrier to the damage done necting carrier. Texas Cent. R. Co. r.
on its own line, it is prejudicial error, in O'Loughlin, 84 S \V. 1104, 37 Tex. Civ,
an action against the initial carirer, to App. fi40.

give and refuse instructions Vvdiereby its 84. Evidence showing damage after de-
liability was extended beyond its line; livery to succeeding carrier. — Gulf, etc.,
there being evidence that after the cat- R. Co. v. Allcorn (Tex. Civ. App.), 23 S.
tie were delivered to the connecting line W. IS*;.

some delay occurred, which the shipper 85. Value at destination an element of

testified injured the cattle. St. Louis, damage.— Missouri Pac. R. Co. r. Harris,

etc., R. Co. z: Stokes, 99 S. W. 120, 44 CT Tex. 166, 2 S. W. 574; Southern Pac.

Tex. Civ. App. 220. R. Co. v. :\Iaddox, 75 Tex. 300, 12 S. W.

83. In an action against an intial car- 815; Missouri Pac. R. Co. v. Fagan, 72
rier for damages to cattle, where the neg- Tex. 127, 9 S. W. 749, 2 L. R. A. 75, 13
ligence alleged was defendant's failure Am. St. Rep. 776; Ft. Worth, etc., R. Co.
to properly bed the cars, a charge, on the t'. Greathouse, 82 Tex. 104, 17 S. W. 834;
issue raised by a plea of a contract lim- Gulf, etc., R. Co. z'. Eddins, 7 Tex. Civ.
iting the carrier's liability to damages App. 116, 26 S. W. 161.



3369 I^IMITATION OF UABILITY. §§ 3756-3758

§§ 3756-3760. Limiting Liability to That of Forwarder or Ware-
houseman— §§ 3756-3757. Power to Limit and Validity— § 3756. In
General. — In many jurisdictions a common carrier may by special contract limit
its liability to that of "forwarder" ^^> but in others such carrier can not relieve
itself from its liability, by inserting in its bill of lading a clause to the efifect that
it shall be held liable only as a forwarder.'^^ This is the rule under the statutes
of Texas. ■^'''

§ 3757. Carriers Which May Limit.— Transportation Company Not
Owning Any Road. — A transportation company which does not own any rail-
road, and which undertakes to deliver goods at their final destination, can not
relieve itself from liability for loss through negligence by a stipulation in the bill
of lading that in case of loss the railroad shall be responsible in whose actual
custody the goods are at the time of the loss, the railroad being merely its agent. ^^

Express Company. — The fact that the contract of any express company for
transportation of goods styles it an express forwarder, and stipulates to forward
the goods, without liability for loss or damage except as forwarder only, does not
relieve it from liability as a common carrier for negligence,^'^ and the negligence
of the railroad company over whose road the package is carried is imputed to the
express company. But it was held in an early New York case that expressmen
who forward goods from place to place for hire, in conveyances owned by
others, are not liable as common carriers, but as bailees for hire to forward goods
by the ordinary modes of conveyances, and have a legal right to define the extent
of their liability.^i

§ 3758. What Constitutes an Agreement "to Forward." — Forwarding
merchants usually combine in their business the double character of ware-
housemen and agents for a compensation to ship and forward goods to their
destination. When these businesses are thus combined it becomes a question, often
a difficult one, to determine in which capacity the person held goods at the time
of the injury or loss.^^ When a forwarding merchant is both a carrier and a
Avarehouseman, it is well settled that if the deposit of the goods in the warehouse
is a mere accessory to the carriage, and not subject to orders of the owners, or if
they are deposited for the purposes of being carried further, the liability of the
party having them in charge is that of a carrier.^-"^ But when the goods are de-
posited in the warehouse subject to the further order of the owner, the case is
otherwise.'''* Where a forwarding merchant has held himself out as a carrier,

86. Power to limit and validity. — Kan- Co., 40 So. 6.5, 87 I\Iiss. 656, 112 Am. St.
.jflj.— KaUman v. United States Exp. Co., Rep. 466.

3 Kan. 205. 91. He'rsfield v. Adams (N. Y.), 19

New Hampshire. — Merrill v. American Barl). 577.

Exp. Co.. 62 N. H. 514. 92. What constitutes an agreement to

87. Blaikston i: Davies. Turner & Co., "forward." — Stannard z: Prince, 64 N. Y.
42 Pa. Co. Ct. 390. 300.

88. Under Texas statute.— Texas, etc., 93. Ladue v. Griffin, 25 N. Y. 364, 82
"R. Co. V. Hamm, 2 Texas App. Civ. Cas., Am. Dec. 360; Blossom v. Griffin, 13 N.
§ -^'-'l- Y. .569, 67 Am. Dec. 75.

89. Transportation company not own- 94. Ladue v. Griffin, 25 N. Y. 364, 82
ing any road. — Merchants' Despatch Am. Dec. 360.

Transp. Co. v. Bloch, 86 Tenn. (2 Pickle) Plaintiffs, forwarding merchants at T.,

392, 6 S. W 881, 6 Am. St. Rep. 847. were employed by the defendant to ship

90. Express company. — Christenson 7\ certain marl>le to him at P. The marl)le
American Kxp. Co., 15 Minn. 270, Gil. was shipped on a canal boat, which was
208, 2 Am. Rep. 122. delayed at A. One of the plaintiffs went

A stipulation in the contract of an ex- to A., where lie learned that the only
press company for carriage of a package towboat company it was i)racticable to
that the negligence of the railroad com- emiiloy to tow the boat down the river
pany over whose road the package shall had declined to take it unless the cap-
be- carried shall not be imputed to the tain would pay the towing charges in
express company is in violation of public advance and would also pay an existing
policy. Southern Exp. Co. t'. .Marks, etc., l)ill. The cajitain had gone home to pro-



§§ 3758-3759



CARRIERS.



3370



or where the facts disclose that he assumed the carriage of the property himself,
he is liable as a carrier.^^

Agreement "to Forward" to Designated Destination. — An agreement by
a carrier to "forward" goods to a designated place for an agreed freight is not a
contract for forwarding, but for carrying, and the carrier is liable as a common
carrier, and not as a forwarder, for the loss of the goods after delivery to it.^^
The word "forward" is not used in its technical meaning ^'^ but where goods are
consigned to an agent of a railroad to be forwarded, the company is liable only
as a bailee.^^

§ 3759. Nature and Extent of Liability as Forwarder. — For the loss of
goods in transit, the liability of common carriers, and forwarders, independent of
any express stipulation in the contract, is different ; one is an insurer, the other
is not.^^ Forwarders are not insurers, but are responsible for all injuries to
property, while in their charge, resulting from negligence or misfeasance of
themselves, their agents or employees ; ^ in other words, they are liable as bailees
for negligence.



cure the money. Plaintiffs thereupon
advanced the money, and the boat was
put into a tow, but, by the negligence or
unskillfulness of the employees of the
tow company, was injured and sunk. In
an action to recover for advances and
charges, the loss was set up as a counter-
claim. Held, that by the transactions of
the plaintiffs at A. they did not assume
the carriage of the property, but had
acted simply as forwarders, and not as
carriers, and were therefore not liable
for the loss. Stannard v. Prince, 64 N.
Y. 300.

95. Stannard v. Prince, 64 N. Y. 300;
Teall V. Sears (N. Y.), 9 Barb. 317.

A warehouseman at Buffalo was also a
carrier on the Erie canal, and used to re-
ceive freight from the west and forward
it to the east by the first boat going,
whether his own or that of other carriers.
He received goods shipped from Detroit,
addressed to his care at Buffalo, and
marked, "To go from Buffalo to East
Albany, at 30 cents per 100 lbs." The
presumption from these facts alone was
held to be that the goods came to his
possession as a carrier, and, having been
burned without his fault v»'hile in his
warehouse awaiting transportation, he
was liable for their value. Ladue v. Grif-
fin, 2,5 N. Y. 364, 82 Am. Dec. 360.

96. Agreement "to forward" to desig-
nated destination. — Krcnder v. Woolcott
(N. Y.), 1 Hilt. 223.

97. Technical meaning. — A., being at
once warehouseman, forwarder, and car-
rier, made a parol contract to carry all
B.'s goods to New York, and a good deal
had already been sent from time to time
when some delivered by B. at A.'s ware-
house were there accidentally burned. A
receipt given for the goods burned stated
that they were "to be forwarded." Held,
that the technical meaning of the writ-
ing was changed by the previous parol
agreement, and that A. was liable as a
common carrier. Blossom v. Grififin, 13
N. Y. 569, 67 Am. Dec. 7.5.



98. Where machinery was consigned to
the agent of a railroad, to be forwarded
to the plaintiff over such road, and it was
negligently detained for a time, the rail-
road was not liable as a common carrier
for this neglect, but only as bailee.
Foard v. Atlantic, etc., R. Co., 53 N. C.
235. 78 Am. Dec. 277.

Where several pieces of machinery
were shipped to the defendant's agent to
be forwarded to plaintiff, and they were
described in the bill of lading as "three
pipes in one bundle, and two single
liipes," and they were delivered by the
ship's agent to the defendant's agent,
who had a copy of the bill, and by some
means the direction on one of the single
pipes became illegible, and it was not for-
warded, it was held that these facts were
sufficient to subject the defendant for
negligence as a bailee. Eoard v. Atlantic,
etc., R. Co., 53 N. C. 235. 78 Am. Dec.
277.

99. Nature and extent of liability as
forwarder. — Hooper v. Wells, Fargo &
Co., 27 Cal. 11, 85 Am. Dec. 211.

1. Hooper v. Wells, Fargo & Co., 27
Cal. 11, 85 Am. Dec. 211; Kallman v.
United States Exp. Co., 3 Kan. 205.

Common carriers, whose liability is
limited by special contract "as forward-
ers only," are simply depositories of
goods arrived at their destination and
awaiting delivery to the consignee, and
are liable only for gross negligence.
Merrill v. American Exp. Co., 62 N. H.
514. _

Mistake as to consignee. — Where a
consignee delivered goods to a forward-
ing merchant, marked "J. F., Galena,"
the goods being, in fact, intended for J.
Frysinger, at Galena, and the forwarding
merchant erroneously entered the goods
on his bill of lading, "J. Flanagan, Ga-
lena, 111.," in consequence of which they
were seized and sold by the sheriff as
the property of J. Flanagan, it was held
that the forwarding merchant was liable
to the real owner of the goods. For-
sythe V. Walker, 9 Pa. 148.



3371 LIMITATION O^ LIABILITY. §§ 3759-3760

Negligence of Steamboat Owned and Controlled by Other Carriers,
but Generally Used by Initial Carrier. — If a common carrier, who undertakes
to transport goods, "and deliver to address," inserts a clause in the receipt for
the freight, signed by it alone, and given to the person intrusting it with goods,
stating that the carrier is "not to be responsible except as forwarder," such clause
does not exempt the carrier from liability for loss of the goods occasioned by the
carelessness or negligence of the employees on a steamboat owned and controlled
by other parties than such carrier, but ordinarily used by him in his business of
carrier, as a conveyance; the managers and employees of the steamboat being,
in law, for the purpose of the transportation of such goods, the managers and
employees of the carrier.-

"Perils of Navigation and Transportation" Excepted. — The language in
a contract for transportation, "Only perils of navigation and transportation ex-
cepted," does not exempt an express company, which styles itself a forwarder,
but is a common carrier, from liability for perils such as could be foreseen or
avoided in the exercise of care and prudence by those intrusted by the company
with the carriage of the Articles forwarded.^

Loss by Fire — Refusal of Consignee to Accept. — Where a carrier by stip-
ulation limited his liability to that of forwarder only, and was not to be liable for
loss by fire or negligence of any connecting carrier, it was not liable for loss by
fire while the goods were in a warehouse of a connecting carrier because of the
consignee's refusal to accept them, and this though the goods were marked
"C. O. D."4

Notice to Consignee in Case of Inability to Forward. — Where a connect-
ing carrier permitted flour to remain in its warehouse for 49 days before for-
warding the same because of a shortage of cars, without notifying the shipper,
knowing that the detention would be unusual, thereby preventing the shipper
from protecting itself by insurance, and the flour was totally or partially de-
stroyed by the burning of the warehouse, the carrier was chargeable with such
negligence as made it responsible for the loss of the flour, notwithstanding a pro-
vision in the bill of lading that no carrier should be liable for the loss of the
goods or damage thereto by fire.^

Effect of Limitation as to Amount. — Limitation of Liability. — A stipula-
tion limiting the liability of a mere forwarder to a stated sum for the loss of
goods is not a stipulation exempting such forwarder from loss due to his own
negligence.*'

§ 3760. Termination of Liability. — Delivery to Succeeding" Carrier.

— See ante, "Delivery to Succeeding Carriers," § 3740.

Necessity for Notice to Consignee of Arrival of Goods. — A contract stip-
ulating that the carrier shall not be liable for loss after the goods are ready for
delivery to the consignee, and that goods not removed by the consignee within 24
hours after arrival may be kept by the carrier at the risk of the consignee, etc.,
does not terminate the liability as carrier, on the carrier checking up the car con-
taining the goods, and making up a record thereof within a few minutes after the
arrival of the car, thereby making the goods ready for delivery to the consignee;
but until notice is given to the consignee, or until a reasonable time has elapsed,

2. Negligence of steamboat owned and accept. — Gibson v. American Merchants'
controlled by other carriers, but gen- Union Exp. Co. (N. Y.), 1 Ilun 387, 3
erally used by initial carrier.— Hooper v. Thomp. & C. 501.

Wells, Fargo & Co., 27 Cal. 11, 85 Am. 5. Notice to consignee in case of ina-

Dcc. 211. bility to forward.— l-.rie R. Co. :•. .Star,

3. Perils of navigation and transpor- etc., Mill. Co., 1(12 I'ed. S70, 89 C. C. A.
tation" excepted.— Christenson "■. Amer- 5';9.

lean Jix].. Co., 15 Minn. 270, Gil. 208, 2 6. Effect of limitation as to amount —

Am. Rep. 122. Limitation of liability.— Westcott z'.

4. Loss by fire— Refusal of consignee to Fargo, Gl X. Y. 542, 19 Am. Rep. 300.



§§ 3760-3763 carrie;rs. 3372

within which he may receive the goods, the HahiUty continues."

§ 3761. Goods Carried at Owner's Risk. — Application to Part of
Route as to Which Carrier Forwarder. — A hmitation of a carrier's common-
law HabiUty apphes only to that portion of the route on which it acts as carrier
and not to that with reference to which it is a forwarder.^

§ 3762. Exemption from Loss by Delay. — Exemption from Delay
of Connecting Line in Receiving Property. — Where a connecting carrier, after
being notified by the initial carrier that the property to be transported had arrived,
failed to send an engine to move the cars, there was nothing to show that the
negligence of the initial carrier in failing to give notice in advance that the train
was late caused the delay in moving the property, the initial carrier could not be
held liable for injury to the property resulting from such delay, it being expressly
provided by the contract that the initial carrier should not be liable for injuries
caused by the delay of the connecting line in receiving the property after notice.'-^

Exemption from Delay on Connecting Lines. — Where an initial carrier
agreed to carry goods to point beyond its own lines, and the contract provided
that the carrier should not be liable for delays occurring on connecting lines, it
was not exempt from damages for delays on connecting lines resulting from their
negligence.^"

Shipment Misdirected by Shipper. — Where by mistake of the shipper a
consignment of goods is misdirected and damaged by delay in delivery, the initial
carrier is not liable therefor, where the owner released the carrier from liability
for delay, unless negligence is shown on part of the connecting carrier.^ ^

§ 3763. Exemption from Liability for Insufficient or Defective Car. —

A bill of lading exempting a connecting carrier from liability for damage to
horses arising from the insufficiency or defective condition of the body of the car
in which they were received or from injuries from suffocation, does not relieve
the carrier from liability for failure to inspect and ventilate the car by removing
slats therefrom.^ -

7. Necessity for notice to consignee of bill contained a provision that defendant
arrival of goods. — Podrat c'. Narragans- should not be liable for delay after de-
ett Pier R. Co., 32 R. I. 255, 78 Atl. 1041. livery to a connecting carrier. Defend-

8. Application to part of route as to ant delivered the cars to another carrier,
■which carrier forwarder. — The Pennsyl- who separated and sent them to their
vania Railroad Company gave a receipt destination over different lines, whereby
for oil to be delivered "at the company's one car was delayed for a month. Held,
freight station, Philadelphia." Annexed that the initial carrier was not liable for
to the receipt was, "Rate to Red Hook, the delay. Hope v. Delaware, etc., Canal
65 cents," etc. "This oil is carried only Co., 69 N. W. 487, 111 Mich. 209.

on open cars, and entirely at the own- 11. Shipment misdirected by carrier. —

er's risk from fire and leakage while in Goods were shipped under a reduced rate

possession of the railroad company or in consideration of the owners releasing

carriers, while standing or in transit." the company from liability for delay or

The freight was paid to Red Hook. loss, but by mistake of the shipper were

Held, that the limitations as to liability marked "Eckley." instead of "Ackley."

applied only to that portion of the route The first carrier delivered the goods to

on which reference to which they were a connecting carrier, but, there being no

forwarders. Camden, etc., R. Co. v. such station as Eckley on its line, it held

Forsyth Bros. & Co., 61 Pa. 81. the goods, telegraphed for shipping or-

9. Exemption from delay of connect- ders, and, pending a reply, the goods
ing line in receiving property. — Louis- were destroj^ed by fire. Held that, since
ville, etc., R. Co. z\ Bourne. 15 Ky. L. the evidence did not show negligence on
Rep. 445. the part of the connecting carrier, the

10. Exemption from delay on con- lir^t carrier was not liable for the loss.
necting lines. — Jennings v. Grand Trunk Erie R. Co. ?'. Wilcox. S4 Til. 239, 25 Am.
R. Co., 5 X. Y. S. 140, 23 N. Y. St. Rep. Rep. 451.

15. 52 Hun 227. 12. Exemption from liability for insuf-
Defendant gave a bill of lading for two ficient or defective cars. — Kime ?■. South-
car loads of goods "to the order of C, em R. Co., 160 N. C. 457, 76 S. E. 509, 43
Detroit, Mich." Notify H. & Co.," which L. R. A., X. S.. 617.



32>72> LIMITATION OF LIABILITY. §§ 37'64-3769

§ 3764. Stipulation against Loss by Suffocation. — See ante, "Exemp-
tion from Liabilit}' for Insufficient or Defective Car," § 3763.

§ 3765. Limiting Amount of Liability. — See ante, "Limitation of Amount
of Liability," §§ 1328-1383; post, "Instances of Particular Limitations," § 3783.

§ 3766. Condition as to Filing Claims or Giving Notice of Loss. — See

ante, "Reciuirement of Xotice of Loss and Presentation of Claim," §§ 1384-1470;
post, "Instances of Particular Limitations," § 3783.

§ 3767. Conditions as to Time of Bringing Suit. — See ante, "Stipulations
Limiting Time within Which Suit ^lust Be Brought," §§ 1451-1466.

§§ 3768-3777. Carriers of Passengers— §§ 3768-3770. Power to
Limit — § 3768. In General. — A railway company may by the express terms
of the contract limit its liability for carrying passengers over connecting lines.
In such case it may limit its liability to negligence on its own line, the contract for
the transportation of the passengers over the connecting line being by the first
carrier only as the agent of the corporation operating the connecting line.^^ In
principle, there is no difference between the liability of a receiving carrier under
a contract to transport goods over connecting lines and a similar contract to trans-
port passengers.^"*

§ 3769. Lines under One Management. — Where two raih-oad companies
enter into an arrangement by which practically a continuous system is formed un-
der one management, and one of them sells a ticket under a condition limiting its
liability to its own line, it is nevertheless responsible for the safe carriage of pas-
sengers over the other line, and such condition must be limited in its operation
to such other lines as have their own separate and independent management.^-''
The initial company must have such control over or controlling interest in the
connecting company as to vest it with power to secure transportation over the
connecting line, and to make it its duty to see that such transportation is eft'ec-
tuated.*'* The fact that the passage money is divided equally between the two
carriers does not constitute such control. ^'^

13. Georgia. — Southern R. Co. v. White, M. P. R. Co. v. Ryan, 2 Texas App. Civ.
108 Ga. 201. .33 S. E. 952. Cas.. § 430.

P ennsvlvania.— Vtnnsy\vzr\\z Cent. R. 1^. Kirk v. Kimball Co., 152 Cal. 180.

Co. V. Schwarzenberger, 45 Pa. 208, 84 92 Pac. 84.

Am. Dec 490 '^'^- Freedom from habihty of C, the

T^ Tj ' • tj ~A fT^ roj -lo initial carrier, for nOncarriage by Y., the

1 exas. — Hams v. Howe, 74 Tex. 534, 12 .- ' • ., ,• , ^. ,, , ^

c w oo < 1 - \ c^ r> orn r T D conncctHig camcr, the ticket sold by C,

b. \\ . 224, lo Am. bt. Rep. 862, 5 L. R. , , ,P c -^ ^c j -v;- • i.- t

A ,.-„ Ci. T • r^ TD r~> r^ -o:*! on behalf of itself and Y., consisting of

t T '' r ^?"' '.fi-' ?; ^\Z- ?[i f" two coupons, and providing that the pas-

f /•• ^o-; T^P- 7,i' ^^ ^- ^^n • ^ •'^^sx from F. to M shall be over the line

firmed in 93 Tex. 738, no op.. Davis v. ^^ ^ ^„^ ^^^^ f^^„^ ^^ ^^ j^ ^^,^^ ^,^^

f^^'Jfton. etc R. Co., 25 Tex C.v. App. y^^^^ ^^ y ^^^^ ^,^^^ -^ ^^„i ^-^^^^^ ^^

8, 09 S. \\. 844 affirmed in 94 Tex .90 .^upons over other lines this company

no op.: (,ulf. ec R Co .'.Wright, 2 ^^^^l ^^ ^^^1 ^,^^„ .^^^ ,^^ ^^^ ^^_

Tex. C,v. App. 4G3, 21 S. W. 399. ^j,^j^ ,^^y^,^j j^^ lj,^^_ j^ ,^^^ afifected by

14. Harris 7'. Howe, 74 Tex. 534, 12 S. testimony that the contract between the
W. 224, 15 Am. St. Rep. 802, 5 L. R. A. carriers was modified by parol, -thereby
'''■ the two carriers became "jointly" inter-

15. Lines under one management. — estcd in the transportation, witness, tes-
llouard v. Chesapeake, etc., R. Co., 11 timony as a whole showing that by
App. D. C. 300. "jointly" he meant "eciually," and that

Where different railways forming a there was no other change in their con-
continuous line run cars, sell tickets and Iract other than that it was agreed each



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 51 of 214)