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may be qualified by the circumstances and the terms and character of the con-
tract. Though it may not be for through transportation, and though no rate
for the entire distance is fixed, if the contract refers to and embraces connecting
lines, the carriers, over whose roads the freight must be transported, may adopt
and act upon it, and thereby become entitled to the benefit of the valid exemp-
tions created by the terms and conditions of the contract.*'^

Allegation of Ratification. — In an action against a connecting carrier for
an injury to a shipment while in its possession, a plea that the waybill showed
that the shipment was "at a release rate, which was a reduced rate of freight,"
is not equivalent to an allegation that defendant accepted and ratified a contract
made by the original carrier releasing it and connecting carriers at their option
from liability for damages not caused by negligence. '^■-

Burden of Showing Acceptance.^ — Where the initial carrier is not author-
ized to bind the succeeding carrier to the terms of the contract, but, on the con-
trary, it was by the contract itself expressly left open for the connecting lines
to accept the terms made for them or not, at their option, the law raises no
presumption that a connecting carrier accepted or ratified the contract, and
carried the freight under it. Where it relies upon exemptions contained in the
contract, it must show its ratification by some act or course of conduct on its
part, developed at some period from its receipt of the shipment to the delivery
to the consignee, and such act or course of conduct should have been alleged. ^^

tract a through contract, so as to entitle ten memorandum stating the quality,
the succeeding carriers to the benefit of character, condition, and value of the
exceptions from liability contained in the property shipped, with agreement to de-
contract, ^tna Ins. Co. v. Wheeler, 49 liver the same at Brazos, to the steam-
N. Y. 616, affirming 5 Lans. 480. ship company. Before the shipment, the

85. Freight was carried by a railroad consignors delivered this writing to the
under a bill of lading providing for its agent of the steamship company, who
delivery to the consignee or a connect- took it up and gave the consignors bills
ing carrier at the terminus in a certain of lading, the terms of which excused the
city in Texas. The bill was headed, "To steamship company from liability for
be used for shipments to any part of the loss by robbers or thieves. The train
United States," and provided for a through was robbed on the way to Brazos, and
rate of freight to the place of destination the money shipped was never delivered
in Massachusetts indicated on the mar- to the steamship company. The limita:-
gin, the freight to be there delivered. tion of liability in the bill of lading was
Held not a through bill of lading, but the held to apply to carriage by ship, and
contract of the first carrier, which ended not to carriage by the railway company.
at its terminus, so that any exemption of Rio Grande R. Co. v. Cross, 5 Tex. Civ.
such carrier from liability for loss by App. 454, 23 S. W. 529, affirmed in 93
fire did not extend to defendant steam- Tex. 648, no op.

ship company, to which it was delivered 87. Acceptance or ratification by sub-
by the first carrier, and it was, therefore, sequent carrier. — ^Vestern R. Co. v. tlar-
liable as a common carrier for loss of the well, 91 Ala. 340, 8 So. 649; Babcock v.
freight by fire while stored in its freight Lake Shore, etc., R. Co., 49 N. Y. 491.
house awaiting transportation by its 88. Allegation of ratification. — Western
steamer. Robinson v. New York, etc., R. Co. ?'. Harwell, 97 Ala. 341, 11 So. 781.
Steamship Co., 71 N. Y. S. 424, 63 App. 89. Burden of showing acceptance. —
Div. 211. Western R. Co. v. Harwell, 97 Ala. 341,

86. Bill of lading issued by intermediate ii So. 781.

water carrier. — The trustees operating The contract made between a shipper

the road gave to the consignors a writ- of a car load of mules and the receiving



3385



LIMITATION OF LIABILITY.



§ 3786



Though the contract provides on its face for extension to the second company,
at the option of the latter, of the benefits secured to the former in consequence
of the reduced rate, yet, it not appearing that the second company availed itself
of this privilege by shipping the goods over its line at a reduced rate, and the
goods having been destroyed by fire upon that line, presumably by reason of neg-
ligence on the part of this company, the latter is liable to account therefor to the
owner at full value, there being, so far as appears, no consideration to uphold
any agreement with it, express or implied, to accept the conventional value agreed
upon with the first company and specified on the face of the bill of lading.^*^



carrier for transportation from C. to M.
and from M. to O. by connecting lines
released the carriers from liability for
any damage not caused by their negli-
gence, and provided that its terms should
inure to the benefit of connecting lines,
imless stipulated otherwise. On arriv-
ing at O., one of the animals was found
to be injured. The evidence showed that
defendant received the mules at M., and
forwarded them to O. in the same car
in which they were shipped from C, and
under the same waybill; that the waybill
showed that O. was the destination of
the car; that the shipment was at own-
er's risk, and at a reduced rate of freight.
Defendant's agent testified that the freight



charged was the established release rate
when stock was shipped at owner's risk.
Defendant's printed tariff in force at the
time showed that the release rate was
much lower than that charged when stock
was shipped at carrier's risk. There was
no evidence that plaintiff made any con-
tract with defendant other than the one
made by the receiving carrier. Held,
that defendant accepted the terms of the
contract made by the receiving carrier,
and was entitled to the benefit thereof.
Western R. Co. v. Harwell, 97 Ala. 341,
11 So. 781.

90, Central R., etc., Co. v. Bridger, 94
Ga. 471, 20 S. E. 349.



CHAPTER XXXIII.

Action.

I. Rights of Action, § 3787.
II. Jurisdiction and Venue, § 3788.

III. Parties, §§ 3789-3791.

A. By Whom or in Whose Name Action Maj^ Be Brought, § 3789.

B. Against Whom Action May Be Brought — Joinder, § 3790.

C. Necessary Parties, § 3791.

IV. Pleading, §§ 3792-3797.

A. Declaration, Petition, or Complaint, §§ 3792-3795.

a. Essential Averments, § 3792.

b. Alternative Averments, § 3793.

c. Correspondence between Allegations and Proof, § 3794.

d. Amendment, § 3795.

B. Plea or Answer, §§ 3796-3797.

a. Sufficiency, § 3796.

b. Efifect of Failure to Deny a Partnership Alleged in Petition, § 3797.
V. Evidence, §§ 3798-3805.

A. Presumptions and Burden of Proof, §§ 3798-3801.

a. In General, § 3798.

b. As to Line on Which Delay Occurred, § 3799.

c. As to Notification of Connecting Carriers by Initial Carrier as to Condi-

tions of Shipping Contract. § 3800.

d. As to Line on Which Injury or Loss Occurred and the Responsibility

Therefor, § 3801.

B. Admissibility of Evidence, §§ 3802-3804.

a. In Action against Initial Carrier, § 3802.

b. In Action against Intermediate or Last Carrier, § 3803.

c. In Action against Initial and Connecting Carriers, § 3804.

C. Weight and Sufficiency of Evidence, § 3805.
VI. Measure of Damages, §§ 3806-3807.

A. In Action against Initial Carrier, § 3806.

B. In Action against Intermediate or Last Carrier, § 3807.
VII. Instructions, § 3808.

VUI. Province of Court and Jury, § 3809.
IX. Verdic*. § 3810.
X. Judgment, § 3811.

§ 3787. Rights of Action. — An action will lie by a shipper against the ini-
tial carrier for failure or refusal to transfer its cars to a connecting line in ac-
cordance with the terms of a contract of through shipment made with the ship-
per.^ AVhile a competing and connecting carrier may sue for damages to its
general business by reason of the refusal of another carrier to forward cars of
the former containing shipments destined to points on the latter's line the ship-
per who is damaged by the wrongful requirement of unshipping, draying and
reshipping, and by the consequent waste, delay and injury, also has a right of
action against the latter therefor.- A statute conferring upon a shipper the
right to demand of a first carrier proof that loss of or injury to freight addressed

1. Action for refusal to transfer cars fuses to forward cars of another carrier,
to connecting line. — Coles r. Central R., — Logan & Co. v. Central Railroad, 74
etc.. Co., S:.' Ga. 149, 9 S. E. 127. Ga. 684, 694.

2. Rights of action where a carrier re-



3387



ACTIONS.



;§ 3787-3788



to a point beyond its line, where it has been dehvered to a connecting carrier,,
did not occur on its Hne, does not prohibit the shipper in the first instance with-
out such demand from bringing an action for damages for an alleged loss or
injury.^ Where a shipper agrees with a common carrier for the carriage of
goods, and the carrier without the direction of the shipper agrees for the car-
riage with another carrier, who, without the knowledge or direction of the ship-
per, agrees for the carriage of the goods with a third carrier, the shipper
may maintain an action against the last carrier for not delivering the goods^
and by bringing such action he affirms the contract made with such carrier.'*

§ 3788. Jurisdiction and Venue. — Where live stock is injured by the
negligence of any of the carriers having it in charge between the points of re-
ception and destination, an action may be brought against the initial crrier in
the county where the contract of shipment was made.° Where a connecting
carrier receives live stock from the initial carrier or an intermediate carrier
without limiting its liability, it must be assumed to have accepted the stock
under the terms of the original contract made with the initial carrier on behalf
of itself "and connecting lines," and, having thus ratified the contract, may be sued
on it in the county in which it was made, as if it had originally signed the con-
tract.'' A railroad company in partnership with another company may be sued
with the latter for delay in transporting cattle, in a county in which the latter
operates its road, though the former does not operate a road in such county, nor
have an agent there.'^ Decisions interpreting the peculiar provisions of certain
statutes prescribing the jurisdiction or venue of actions against connecting car-
riers will be found in the appended note.^



3. Effect of statute upon shipper's right
of action. — St. Louis, etc., R. Co. z'. ^Ic-
Givney, 19 Okla. 361, 91 Pac. 093, con-
struing St. 1893, § 511.

4. Right of shipper to sue last carrier.
— Sanderson z'. Lamberton (Pa.), 6 Bin.
129.

5. Action may be brought in county
where contract of shipment was made. —
IIHnois Cent. R. Co. v. Curry, 106 S. W.
294, 32 Ky. L. Rep. 513.

6. Pittsburgh, etc., R. Co. v. Viers, 113
Ky. 526, 68 S. W. 469, 24 Ky. L. Rep.
356.

v. Where suit may be brought where
carriers are partners. — San Antonio, etc.,
R. Co. V. Graves (Tex. Civ. App.), 49 S.
W. 1103.

8. Statutes prescribing jurisdiction or
venue interpreted. — In Georgia the venue
of a suit against a railroad company, un-
der Civ. Code 1895, §§ 2317, 2313, for
damages for failure to trace freight
which is to be conveyed by two or more
common carriers, and to give the ship-
per, consignee, or their assigns written
information as to when, where, how, and
by which carrier the freight was lost,
damaged, or destroyed, and the names of
the parties and their official position, if
any. by whom the truth of facts set out
in the information can be established, is
under the Constitution. Civ. Code, 1895,
§ 5874, the county where the principal of-
iice or place of business of the initial
carrier is located. McCall v. Central,
etc., R. Co.. 48 S. E. 157, 120 Ga. 602.

In Texas, jurisdiction over a foreign



railway company operating a part of its
road in the state in an action against it
and a domestic company for damages to
live stock delivered to the domestic cor-
poration for through transportation over
it and the lines of the foreign company,*
can not be sustained under Rev. St. 1895,
art. 1194, subd. 4, providing that no per-
son who is an inhabitant of the state
shall be sued out of the county of his
domicile, except that, where there are
two defendants residing in different
counties, the suit may be brought in any
county where any of the defendants re-
side, where the suit was not brought in
the county of the domicile of the de-
mestic company within article 4378, de-
claring that the public office of a railroad
corporation shall be considered its dom-
icile. St. Louis, etc., R. Co. v. McKnight,
99 Tex. 289, 89 S. W. 755.

The Texas statute. Laws 1899, p. 214,
c. 125, provides that, when any freight
has been transported over two or more
railroads operating any part of their
roads in Texas and having an agent
there, suit may be brought in any county
in which either of the roads extends or
is operated. A foreign railway company
refused to receive, as connecting carrier,
a shipment of live stock delivered to a
domestic company as initial carrier un-
der a contract for through shipment.
Meld, in a suit against the domestic and
foreign companies for damages to the
shipment, brought in a county in which
the domestic company operated a line of
road, that the court did not have juris-



§§ 3789-3791 carriers. 3388

§§ 3789-3791. Parties— § 3789. By Whom or in Whose Name Ac-
tion May Be Brought. — The owner of a ship can not recover from a connecting
railway carrier for the detention of his vessel at the railway's terminal wharf,
in consequence of the latter's refusal for some days to receive the cargo, where
he discloses by his declaration that such ship was under charter with a third
person, not a party to the suit, to deliver her cargo to defendant, and that the
latter was under contract with such third person there to receive the cargo,
and to carry it further, as in such case the charterer alone can sue for the breach
of duty."'* An action against a common carrier for failure to comply with an ap-
plication to trace freight and give the information required by the Georgia
"Tracing Act" brought in the name of the shipper is well brought, even though
it appears that the shipper is not the owner of the goods. ^*'

§ 3790. Against Whom Action May Be Brought — Joinder. — An ac-
tion for loss of a part of a shipment may be properly brought in tort jointly
against a connecting and terminal carrier of the goods. ^^ In an action against
an initial carrier for injuries to live stock, all the connecting carriers against whom
it is sought to recover damages may be made parties defendant.^- Where a
contract provides for the carriage of live stock from the point of shipment to
destination at a stipulated price, but it also specifies that the initial carrier shall
carry the stock over its line to C, and thence forward it by connecting carrier
to destination, the two carriers participating in the shipment are properly joined
in one action for damages caused by the negligent manner in which the stock
is handled during transportation, though the liability of each carrier is limited
to its own line.^^ The Texas statute does not authorize a suit against two rail-
road companies not acting under a joint contract for the distinctly separate
wrong of one merely because property has been transported over the connecting
lines of the two.^^

§ 3791. Necessary Parties. — Where an intermediate carrier is sued for

(iiction over the foreign company, though may be brought. — Freeman v. Louisville,

it operated a part of its road in Texas, etc., R. Co., 32 Fla. 420, 13 So. 892.

within the statute, by operating its pas- 10. Central, etc., R. Co. v. Murphey,

senger trains into Texas to the passenger IIG Ga. 863, 43 S. E. 265, 60 L. R. A.

depot of a domestic company; the juris- 817, construing "Tracing Act," Civil Code,

diction of the court being not alone de- §§ 2317, 2318.

pendent on the fact that it operated a 11. Against whom action for loss of

part of its road in Texas, but also on the part of goods may be brought. — New

fact that the shipment had been trans- York, etc., Transp. Line v. Baer & Co.,

ported by the foreign company. St. 84 Atl. 251, 118 Md. 73.

Louis, etc., R. Co. v. McKnight, 99 Tex. 12. Connecting carriers may be joined

289, 89 S. W. 755. in action against initial carrier. -Illinois

Where a' passenger is carried over two Cent. R. Co. t'. Curry, 32 Ky. L. Rep.

railroad lines, and injured on the second 513, 106 S. W. 294.

thereof, the cause of action therefor 13. Contract authorizing joinder of
arises out of the transportation or con- carriers participating in shipment. — -Cin-
tract in relation thereto, so that under cinnati, etc., R. Co. 7'. Greening, iOO S.
the provision of the Texas statute. Act W. 825, 30 Ky. L. Rep. 1180.
March 13. 1905 (Laws 1905, p. 29, c. 25), 14. Texas statute construed.— Texas,
the action therefor may be brought etc., R. Co. v. Lynch, 97 Tex. 25, 75 S.
against the companies in a county in W. 486, construing Act May 20, 1899
which either company operates or has an (Laws 1899, p. 214, c. 125), which pro-
agent. Texas Cent. R. Co. v. Marrs, 100 vides that, whenever any freight or other
Tex. 530, 101 S. W. 1177. property has been transported over two

An action against a connecting carrier, or more railroads operating any part of

refusing to honor a return ticket and their roads in Texas, suit for loss or

ejecting passenger from train, is a suit damage thereto, or other cause of action

for personal injuries within the Texas connected therewith or arising out of

statute, act of 1901, p. 31, ch. 27, prescrib- such transportation or contract in rela-

ing the venue of such actions. Texas, tion thereto, may be brought against

etc., R. Co. V. Lynch, 97 Tex. 25, 75 S. any one or all of such railroads in any

W. 486, reversing 73 S. W. 65. _ county in which either of such railroads

9. By whom or in whose name action extends or is operated.



3389



ACTIONS.



3791-3792



loss of freight on its line, it can not complain because the initial carrier also
liable is not made a party defendant. ^^ Where suit is brought against a railroad
company which operates another railroad under lease for a refusal to receive
goods and transport them over the line so operated by it, there is no necessity
to make the lessor a party defendant to the action; and there is no error in re-
fusing to dismiss the case because service has not been perfected on the lessor
company. ^"^^

§§ 3792-3797. Pleading— §§ 3792-3795. Declaration, Petition, or
Complaint. — § 3792. Essential Averments. — In an action against a con-
necting carrier, or against connecting carriers, the declaration, petition or com-
plaint must aver facts sufficient to show a cause of action against the defendant
or defendants. ^^ In suing the last of several connecting carriers for a loss, it



15. Initial carrier not a necessary party
to suit against intermediate carrier for
loss of freight. — Lacey z\ Oregon R., etc.,
Co.. 63 Ore. 596, 12S Pac. 999.

16. In action against lessee of railroad
lessor not a necessary party. — Central
R. Co. V. Losan & Co.. 77 Ga. 804, 2 S.
E. 465.

17. Pleading must aver facts sufficient
to show a cause of action. — Hempstead
V. New York Cent. R. Co. (N. Y.), 28
Barb. 485.

To enable a plaintiff to recover against
a railroad company under the N-ew York
Railroad .\ct. § 53 ( 1 Rev. St. [4th Ed.]
p. 1240). providing that, "whenever two
or more railroads are connected together,
any company owning either of said roads
receiving freight to be transported on
the lire of either of said roads so con-
nected, shall be liable as common car-
riers for the delivery of such freight at
such place, against a company not other-
wise liable, his complaint must aver the
facts required to constitute the liability.
Hempstead v. New York Cent. R. Co.
(N. Y.), 28 Barb. 485.

Pleadings held to state a cause of ac-
tion. — Plaintiff alleged delivery of a car
load of sheep to defendant, a common
carrier, for transportation under a live
slock contract requiring safe delivery to
defendant's connecting carrier; that de-
fendant did not safely carry the stock,
but, by reason of defendant's negligence
and that of its connecting carrier, plain-
tiff's stock was not delivered, but that
another car load containing other and
less valuable sheep was delivered to the
consignee as and for plaintiff's stock.
Plaintiff also alleged that the bill of lad-
ing required the shipper to be at his sole
risk and expense of caring for the stock
during transportation, but that defend-
ant \vai%'ed such provision by refusing to
permit plaintiff to perform such service
and assuming such duty itself, and that
after notice defendant made no proof
that the loss did not occur while the
sheep were in defendant's care. Held,
that such declaration stated a cause of
artif)ii. Xorfolk, etc.. R. Co. v. Suther-
land, 54 S. E. 405, 105 Va. 545.

A petition alleged that plaintiff' pur-



."liased a through ticket over connecting
lines; that upon arrival at the junction
point, she was obliged to await the con-
necting train, and was told by the em-
ployees of both companies to enter the
waiting room, which she did; that it
was necessary to wait several hours, and
that while so waiting the employees in
charge of the waiting room ordered and
forced her to leave it at night, and
closed and locked it; that she was thereby
exposed to a storm and made sick.
Held, that the petition set out a cause
of action in tort against both companies.
Riley v. Wrightsville, etc., R. Co., 65 S.
E. 890, 133 Gi. 413, 24 L. R. A., N. S.,
37 9, 18 Am. & Eng. Ann. Cas. 208.

Under the Gerogia statute. Civ. Code,
§§ 2317, 2318, providing that, when freight
to be conveyed by several carriers is lost,
any connecting carrier, on application by
shipper or consignee, shall trace such
freight, and inform the applicant by
which carrier it was lost, and making it
liable, on failure to trace such freight,
as if the loss had occurred on its line, a
petition averring the loss of freight
shipped by certain carriers, and the fail-
ure of the carrier at destination to trace
it after verbal application of the ship-
per, states a cause oi action against such
carrier for the value of such loss of
freight. Savannah, etc., R. Co. v. Hardin,
35 S. E. 681, 110 Ga. 433.

A complaint against a common carrier,
alleging that plaintiff claimed of defend-
ant $1,000 for loss and injury to goods
delivered to a connecting carrier, operat-
ing with defendant a through route to
destination; that defendant^ did not de-
liver the goods to plaintiff, who was
consignee, in good and proper condition,
or in the condition they were in when
received by it; and that such goods, when
delivered to plaintiff, were badly broken,
injured, and damaged, and a large part
thereof wholly unlit for use, etc. — was
substantially in the form prescribed by
the Alabama statute. Code ]S'.)0, p. 946,
No. 15, and was not, therefore, demur-
rable. Walter v. Alabama, etc., R. Co.,
39 So. S7, M2 Ala. 474.

Pleadings held not to state a cause of
action. -.\ i>itition in a suit against a



§§ 3792-3793



CARRIERS.



3390



is necessary to allege that the carriers were joint contractors, or that the prop-
erty was delivered to and received by the defendant. ^^

§ 3793. Alternative Averments. — Where the complaint in an action
against a carrier for injuries to live stock charges alternatively that it was ei-
ther the duty of defendant, the initial carrier, to transport the stock to destina-
tion on its own lines, or to deliver the stock at some unidentified point to a con-
necting carrier having a direct route from the junction point to destination, and



railroad company alleged that the goods
of plaintifif had been delivered to another
carrier, who delivered them to defendant,
and that the time consumed in the traiis-
portation from the initial point was so
unreasonable that the goods were dam-
aged by delay. It was not alleged that
the delay occurred on the line of the de-
fendant, or that the goods were received
by it in good order. Held, that the pe-
tition Avas defective, whether attempting



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 54 of 214)