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to set forth a cause of action under the
common law or under the statutory lia-
bility imposed on the last carrier in a
line of connecting carriers. Southern R.
Co. V. Gardner, 56 S. E. 454, 127 Ga. 320.
See, also, Western, etc.. Railroad z>. Ex-
position Cotton Mills, 81 Ga. 522, 7 S.
E. 916, 2 L. R. A. 102.

In an action against a railroad com-
pany for the detention of a car of fur-
niture after tender of freight charges, the
petition alleged that the furniture was
delivered to a certain railroad company,
and that such company executed a bill of
lading therefor, by which it agreed to
transport the furniture to a specified
place on defendant's road; that such com-
pany and defendant were engaged in the
business of transportmg freight for hire;
and by the contract, as set out in the bill
of lading, both agreed to transport the
furniture from the place of shipment to
its destination. Held, that such com-
plaint was insufiicient, in that it did not
allege a partnership, or that defendant
executed the bill of lading, or authorized
anv one to do so for it. Miller v. Texas,
etc., R. Co., 83 Tex. 518, 18 S. W. 9.54.

A carrier by railroad made a written
contract with a shipper for the transpor-
tation of horses over its own and a con-
necting line, of which it was not the
agent, and in making up the total freight,
which the shipper prepaid, allowed less
for the carriage over the connecting line
than by the tariff of the latter it should
have done; and the connecting carrier,
upon the arrival of the horses at their
destination, refused to deliver them un-
less the additional freight was paid to it
by the shipper. Held, in an action against
the connecting carrier that the shipper
was not entitled to go to the jury on al-
legations of unreasonable delay in the
transportation, and of detention of the
horses upon the cars, there being no evi-
dence of such delay after their arrival,
and the consequences of their subsequent
detention being alleged only as a matter



of aggravation of a wrongful refusal to
deliver them, and that, the refusal to de-
liver the horses being rightful, negli-
gence, if any, in the care of them while
detained, could not be relied upon as a
substantive cause of action. Crossan v.
New York, etc., R. Co., 149 Mass. 196,
21 N. E. 367. 3 L. R. A. 766, 14 Am. St.
Rep. 408.

Petition insufficient to support an ac-
tion against last carrier.— Sheep shipped
from a state quarantined for scabies in
sheep under Act Cong. March 3, 1905, c.
1496, § 1, 33 Stat. 1264 [U. S. Comp. St.
Supp. 1905, p. 617], were before shipment
inspected by a government inspector and
certified to be free from the disease,
pursuant to section 2 and a rule of the
Secretary of Agriculture; and such cer-
tificate was delivered to the railroad com-
pany to accompany the sheep as required
by that rule. The sheep, after being
transported by two connecting com-
panies, were delivered to a stockyards
company where, the certificate being lost,
they were detained and subjected to a
certain treatment. In an action to re-
cover for damage to the sheep from this
detention and treatment, the petition al-
leged that plaintiffs did not know by
which of the companies the certificate
was lost, but "that it was lost by the neg-
ligence of all of the defendants;" and,
though it was alleged that the sheep
were delivered to the company delivering"
them to the stockyards company, yet it
was not alleged that the certificate was
delivered to it. Held, that the petition
must be taken to charge that the certifi-
cate was lost before it reached the rail-
road company delivering the sheep to the
stockyards company, and hence failed to
show that the railroad company was in
any waj' chargeable for its loss. Wake-
field V. Chicago, etc., R. Co., 104 S. W.
778. 31 Ky. L. Rep. 1108.

The charge that the loss of the cer-
tificate was due to the negligence of all
defendants was insufficient to support an
action against the railroad company de-
livering the sheep to the stockyards com-
pany; for, by its contract, it was not re-
sponsible for the negligence of other rail-
road companies. Wakefield v. Chicago,
etc., R. Co., 104 S. W. 778, 31 Ky. L. Rep.
1108.

18. Essential allegations in suit against
last carrier. — Chesapeake, etc., R. Co. v.
Stock & Sons. 104 Va. 97, 105, 51 S. E.
161.



3391



ACTIONS.



;§ 7i79Z-Z797



that the loss resulted from defendant's failure to perform the carriage itself,
or from its faihire to forward the consignment by a connecting carrier having a
direct route, such alternative averments do not constitute a statement of either
cause of action, and the complaint is demurrable.^'*

§ 3794. Correspondence between Allegations and Proof.— In an ac-
tion against a connecting carrier, or against connecting carriers, the proof must
correspond with the allegations in the declaration or complaint, and a material
variance is fatal.-"

§ 3795. Amendment. — In an action against a connecting carrier the plain-
tiff can not by an amendment to his pleading add a new and distinct cause of
action.-^ Where a declaration in an action against a railroad company for
damages to property shipped over the railroad of another company, and thence
over the defendant's railroad, alleges that they are "connecting roads run and
managed" by the initial carrier, it is amendable by striking such allegation. -

§§ 3796-3797. Plea or Answer— § 3796. Sufficiency.— Certain pleas
in actions against connecting carriers which have been held sufficient as against
a demurrer, or to have been erroneously overruled by the court, will be found
in the appended note.-'^



19. Alternative averments. — Louisville,
etc., R. Co. V. Duncan. 34 So. 988, 137
Ala. 44(1.

20. Fatal variance between allegations
and proof. — Where the complaint, in an
action against an intermediate carrier, al-
leges that it contracted to carry goods
to their destination, and that proof shows
that the initial carrier contracted to
carry them there, and made arrangements
with the intermediate carrier to carry
them to the end of its line only, there is
a fatal variance. Alabama, etc., R. Co. v.
-Mount Vernon Co., 84 Ala. 173, 4 So.
356.

Where the complaint claims damages
of a carrier for injuries to cattle trans-
ported over its road under a written con-
tract, which bound defendant to deliver
safely at the terminus of its road to the
next connecting company, while the proof
shows that the cattle, having been safeh"
carried to the terminus of defendant's
road, and there delivered to the next con-
necting road, were then put into unfit
cars, in violation of the promise of de-
fendant's depot agent that the cars should
not be changed, and were afterwards in-
jured l)efore reaching their destination,
even if defendant is liable for the prom-
ise of its agent, there is a fatal variance
between allegations and proof. .Ala-
bama, etc.. R. Co. 7'. Tlinmas, S3 Ala.
343. 3 So. sii:.'.

No variance between allegation and
proof. — Where the declaration in an ac-
tion against a carrier for delay in the de-
livery of a car load of corn referred to
the initial carrier's car 19.588, to give a
correct description of the bill of lading,
there was no variance between the dec-
laration and the evidence disclosing that
the corn was transported in the connect-
ing carrier's car 'J47:!4. Johnson & Co. v.



Central Vermont R. Co., 84 Vt. 486, 79
.\\\. 1095.

21. Amendment properly rejected as
seeking to add a new and distinct cause
of action. — The original declaration be-
ing for damages to plaintifif's property
shipped over defendant's railroad, with
no allegation that defendant received the
same from a connecting railroad as in
good order, and this court having held
that evidence to show that the property
was damaged on a connecting railroad
before defendant received it, was admis-
sible, an amendment to the effect that
defendant had received it as in good or-
der from the connecting railroad was
properly rejected as seeking to add a new
and distinct cause of action. The orig-
inal action was upon a common law lia-
bility, the amendment upon a statutory
liabilitv. Exposition Cotton Mills v.
Western, etc., R. Co., S3 Ga. 441, 10 S.
E. 113.

22. Declaration held amendable. — Soutli-
western Railroad v. Bryant, (57 C.a. 212.

23. Plea not demurrable for failure to
allege performance of duties not specified
in contract. — Two count.^ in a cinnplaint
charged the failure to deliver a car load
of lumlier shipped over the carrier's line,
;ind another count charged failure to de-
liver within a reasonal)le time. Defend-
ant in a special plea alleged that the lum-
I'cr was shipped to a place not on its
line, that it was agreed between the par-
ties that defendant's liability should
cease on delivery of the luml)er to a con-
necting carrier, which it did to a carrier
specified, and that the shipment sustained
no damages while in possession of de-
fendant. Meld, that tlio plea was not de-
murrable for failure to sliow tliat the con-
necting carrier carried ihe luml)er to its
destination, or that defendant was noti-



3797-3798



CARRIItRS.



3392



§ 3797. Effect of Failure to Deny a Partnership Alleged in Petition.

— Where in an action against connecting carriers, a defendant, in its answer,
does not deny a partnership with its codefendant, alleged in the petition, it
can not object to the joinder, nor to any judgment against it which is warranted
by the evidence against its codefendant. - *

§§ 3798-38 05. Evidence— §§ 3798-3801. Presumptions and Bur-
den of Proof— § 3798. In General.— Where Shipper Alleges Contract



fied of the delivery of the lumber to the
connecting carrier or of its arrival, as no
duties of that kind were specified in the
contract alleged. McNeill v. Atlantic
Coast Line R. Co., 161 Ala. 319, 49 So.
797.

Plea not demurrable for failure to set
out specific contract of shipment.^A car-
rier was charged in one count in the com-
plaint with a failure to deliver a car load
of lumber shipped by plaintiff, and in
another count was charged with a failure
to deliver vi^ithin a reasonable time. De-
fendant alleged that the shipment was to
a point not on its line, and that it was
agreed in a contract of shipment that de-
fendant's liability should cease when it
delivered the lumber to the connecting
carrier, and that it so delivered the lum-
ber to the connecting carrier. Held, that
defendant's plea Avas not demurrable for
failure to attach as an exhibit or set out
the specific contract of shipment alleged,
as the contract was not alleged to be in
writing, and it was not necessary for the
contract to be in writing. McNeill f. At-
lantic Coast Line R. Co., Ifil Ala. 319, 49
So. 797.

Plea not demurrable for failure to al-
lege delivery of bill of lading contempo-
raneous with receipt of goods. — Where,
in an action against the delivering car-
rier for injuries to goods, defendant spe-
cially pleaded that the goods were de-
livered to a transportation company in B.
for transportation to M., and that the
receiving carrier issued its bill of lading
for the goods, stipulating for exemption
from liability for fire, and that the prop-
erty was damaged or destroyed by fire
through no fault or negligence on de-
fendant's part, such plea was not de-
murrable for failure to allege the receipt
of the bill of lading by the shipper prior
to, or contemporaneous with, the receipt
of the goods by the carrier; such con-
temporaneous delivery of the bill of lad-
ing being presumed, in the absence of an
allegation to the contrary in a replication
to the plea. Southern R. Co. 7'. Levy, 39
So. 9.5, 144 Ala. G14.

Plea held a practical denial that de-
fendant acquiesced in or acted on al-
leged contract of shipment. — In an ac-
tion against several alleged connecting
carriers for breach by the last carrier
of the conditions of a contract of ship-
ment requiring the carriers to furnish
plaintiff, a shipper, return transportation,
defendant filed a plea of privilege setting



up that it was not a resident of the
county where the suit was brought; de-
nying that any partnership existed be-
tween it and the other roads, or that it
acted jointly with any other company in
the transportation of the stock, and spe-
cifically averred that it undertook and
contracted to transport the same from
the connecting point to its destination,
and nothing further. Held a practical de-
nial that it acquiesced in or acted on the
alleged contract, and that it was error to
overrule the plea, and force defendant
to trial. Texas, etc., R. Co. v. Lynch, 7o-
S. W. 486, 97 Tex. 25.

24. Effect of failure to deny partner-
ship alleged in petition. — Gulf, etc., R.
Co. z: Edloft', 89 Tex. 454, 34 S. W. 414,
35 S. W. 144, affirming 34 S. W. 410; In-
ternational, etc., R. Co. V. Tisdale, 74
Tex. 8, 11 S. W. 900, 4 L. R. A. 545; Bay-
lor County V. Craig, 69 Tex. 330, 6 S. W.
305.

Where petition in an action against a
railroad company for damages for negli-
gence and delay in transportation of
stock alleges partnership between con-
necting carriers and such partnership is
not denied on oath as required by stat-
ute, partnership will be taken as admitted.
Atchison, etc., R. Co. v. Grant, 6 Tex.
Civ. App. 674, 2Q S. W. 286, affirmed in
93 Tex. 609, no op.

Plea held not to deny a partnership. —
Allegations of defendant's plea that "this
defendant * * * is a separate, dis-
tinct, and independent line of what is
known as the 'S. F. Route,' and the
rights, liabilities, and earnings of this de-
fendant are entirely distinct and inde-
pendent from the rights, liabilities, and
earnings of co-defendant. This defend-
ant says, furthermore, * * * that its
undertaking, obligation, and liability with
respect to plaintiff's shipment involved
in this suit is altogether separate, dis-
tinct, and independent from that of its
co-defendant; * * * that defendant re-
ceived no part whatever of the freight
charges accruing in consequence of said
shipment from * * * ^^q h= * *;
tijat it delivered the said car of fixtures
to its co-defendant, * * * and that
thereafter it had nothing further to do
with said shipment," — do not deny the
existence of a partnership with its co-
defendant at the date of the contract of
shipment. Gulf, etc., R. Co. v. Edloff, 89
Tex. 454, 34 S. W. 414, 35 S. W. 144.



3393 ACTIONS. §§ 3798-3800

for Through Transportation. — Where a shipper, in an action to recover for
delay in the shipment alleges the making of special contracts by the terms of
which the initial carrier obligated itself to transport the freight within a rea-
sonable time to its destination beyond the terminus of its line, the burden is on the
shipper to prove his case as laid, especially where it appears that the delay
complained of occurred on one of the connecting lines. - ^ But where in an ac-
tion against a carrier for injuries to a shipment of live stock, the shipper alleges
that the carrier, in co-operation with another carrier, operated a line of railway
from the place of shipment to the point of destination, and testifies to an agree-
ment with the agent of the carrier for a through shipment to the point of desti-
nation, and the agent does not deny the testimony, a presumption arises that the
carrier had control of the line for purposes of shipment to the point of desti-
nation.-'

Presumption of Receipt of Entire Shipment from Receipt of Portion
Thereof. — -A connecting carrier which has received a portion of a single ship-
ment is presumed to have received the entire shipment.^'"

Presumption That Last Carrier Received Goods under Obligations Im-
posed by Law on Common Carriers. — Where goods are delivered to an ex-
press company, who delivers them to another express company to be transported
to the place of destination, and while in custody of the last company they are
lost, in the absence of any proof to the contrary, the last company will be pre-
sumed to have received them for transportation to the owner under such obliga-
tions as the law imposes on common carriers who do not, by contract, limit their
liability.-^

§ 3799. As to Line on Which Delay Occurred. — Where in the course of
the carriage of goods by connecting carriers there is delay, in an action for the
damages resulting therefrom, or for the statutory penalty prescribed therefor,
the burden is upon the initial carrier to show that the delay did not occur on its
line, or that it occurred on the line of a subsequent carrier. -'* In an action against
an intermediate connecting carrier for delay in transportation, the burden of
proof is on complainant to show that the delay occurred on defendant's road.^*'

§ 3800. As to Notification of Connecting Carriers by Initial Carrier
as to Conditions of Shipping Contract. — Where a railroad company receives

25. Burden on shipper to prove con- to a carrier for transportation to a cer-
tract for through transportation alleged tain point beyond such carrier's line, and
by him. — Central, etc., R. Co. :■. Felton, by it turned over to a connecting car-
110 Ga. 597, 36 S. E. 93. rier, was delayed in reaching its des-

26. Facts raising presumption that car- tination, the initial carrier alone was li-
rier had control of entire line.— St. Louis, able for such delay, m the absence of
etc., R. Co. z: Keys, G Indian T. 396, 98 a showing that the delay did not occur
S. W 138 while the goods were in its possession.

n„ ri ^- r • x r i" Norfolk, etc., R. Co. v. Wilkinson, 56 S.

27. Presumption of receipt of entire ^ „„j^ lOf V ^ —

shipment from receipt of portion thereof. "^j^-^ ^ delay 'in 'the transportation of

pM5-}'7^'i % ^ou.^li^^''-" i^a,l^vay, 8.. S. f^^j^,^^ ^,^3 ^^^ ^^ ^j^^ neghgence of a

" • " ^' ^- connecting carrier, the " burden was on

28. Presumption that last carrier re- the initial carrier, in a suit against it for
ceived goods under obhgations imposed ^ statutory penalty for such delay, to
by law on common carriers.— Sor.lhcrn prove such fact. Watson v. Atlantic
I'.xp. Co. 7: Urquhart, r.:l (ki. 142. ^ Coast Line R. Co., 59 S. E. 55, 145 N. C.

29. Burden of proof as to line on which ;.'3().

deUiy occurred. — Where, in the course Where an initial carrier, in an action
of carriat^e of goods by connecting car- for the penalty for delay, did not prove
ricrs, there is an unreasonal)le delay, the that the delay f>r a ])orti(>n tlicreof oc-
initial carrier has the burden of showing curred on tlie line of a connecting car-
delivery, witbout such delay, to thi:; next rier, it would be presumed tliat the entire
carrier. .\llen-I'leming Co. v. Southern delay occurred on the initial carrier's
R. Co.. 58 S. K. 793, 145 X. C. 37. See, line. Watson ?-. Atlantic Coast Line R.
also, Meredith v. Seaboard, etc., R. Co., Co., 59 S. E. 55, 145 N. C. 236.
137 X. C. 478. 50 S. E. 1. 30. Shockley ?•. I'ennsylvania R. Co.,
Where a shi;Mnent of lumber delivered 109 .Md. l:.':!, 71 Atl. !.".7.



§§ 3800-3801



CARRIERS.



3394



freight for shipment under an agreement to forward it to its destination, and a
stipulation that its Habihty as carrier shall cease on delivery of the goods to the
first connecting line, the contract also providing for "passenger service through,''
and the shipper sues the company for damages caused by its alleged delay as for-
warding agent to notify each successive connecting road of the conditions of the
contract respecting the manner of transportation, the burden is on defendant to
show that it notified each successive connecting road of the conditions regarding
the manner of transportation, or, if it did not, that the delay was not attributable
to its default.'^"^ •

§ 3801. As to Line on Which Injury or Loss Occurred and the Re-
sponsibility Therefor, — Where goods shipped over several connecting lines
are found to be injured when they reach their destination, there is no presump-
tion that the injury occurred while the goods were in the hands of the first car-
rier,-"- the burden being upon the plaintifl^ in an action against such carrier to
show that the injury occurred on its line."^ The presumption is that each of the
several connecting carriers received the goods in the same condition in which they
were when delivered to the initial carrier for transportation, and if they are dam-
aged or part of them are lost, in an action against a connecting carrier therefor,
the burden is upon it to show that the damage or loss had occurred when it re-
ceived the goods. ^■^ It follows that in an action for injury to, or loss of, goods



31. Burden of proof as to notification
of connecting carriers by initial carrier
as to conditions of shipping contract. —

Colfax Mountain Fruit Co. v. Southern
Pac. Co. (Cal.), 46 Pac. 6(38.

32. No presumption that injury oc-
curred on line of initial carrier. — Farm-
ington ^Mercantile Co. v. Chicago, etc., R.
Co., 166 Mass. 154. 44 N. E. 131; St.
Louis, etc., R. Co. v. McGivney, 19 Okla.
361, 91 Pac. 693; Atchison, etc., R. Co. v.
Rutherford, 29 Okla. 850, 120 Pac. 266.

33. St. Louis, etc., R. Co. v. Pearce, 82
Ark. 353, 101 S. W. 760, 12 Am. & Eng.
Ann. Cas. 12.".

But in Alabama it has been held that
in a suit against the initial carrier for the
loss of or injury to goods, if such loss
or injury is shown, the burden rests upon
the defendant to prove that the goods
were not lost or injured while in its pos-
session. Central, etc., R. Co. v. Chicago
Varnish Co., 169 Ala. 287, 53 So. 832.

And in Michigan it has been held that
in an action against a carrier for injuries
to goods shipped and ordered returned,
where defendant's theory is that the
goods were injured while in the hands of
a connecting carrier before they were re-
turned to defendant, the burden of proof
is on defendant to show that it safely
shipped the goods and delivered them to
the connecting carrier in good condition,
and the burden then changes, and plain-
tiff must show by a preponderance of
the evidence that the goods were in a
good condition on their return to defend-
ant on the journey back. Reason v. De-
troit, etc., R. Co.. 113 X. W. 596, 150
Mich. 50.

34. Presumption that connecting car-
riers received goods in condition in
which delivered to initial carrier. — Ala-
bama. — Southern Exp. Co. v. Hess, 53



Ala. 19; Central, etc., R. Co. v. Chicago
Varnish Co., 169 Ala. 287, 53 So. 832.

Arkansas. — St. Louis, etc., R. Co. v.
Coolidge, 73 Ark. 112, 83 S. W. 333, 67
L. R. A. 555, 108 Am. St. Rep. 21.

Florida. — Savannah, etc., R. Co. v. Har-
ris, 26 Fla. 148, 7 So. 544, 42 Am. & Eng.
R. Cas. 457, 23 Am. St. Rep. 551.

Georgia. — Central R., etc., Co. v. Bayer,
91 Ga. 115, 16 S. E. 953; Evans v. At-
lanta, etc., R. Co., 56 Ga. 498; Forrester v.
Georgia R., etc., Co., 92 Ga. 699, 19 S. E.
811; Paramore v. Western R. Co., 53
Ga. 383.

lUiiiois.— Credit Western R. Co. v. Mc-
Donald, 18 111. 172; Lake Erie, etc., R. Co.
V. Oakes, 11 111. App. 489.

Indian Territory. — Gulf, etc., R. Co. v.
Jones, 1 Indian T. 354, 37 S. W. 208.

/czt'ff.— Beard v. Illinois Cent. R. Co., 79
Iowa 518, 44 N. W. 800, 18 Am. St. Rep.
381, 7 L. R. A. 280.

Massachusetts. — Bullock v. Haverhill,
etc.. Dispatch Co., 187 Mass. 91, 72 N.
E. 256; Cote v. New York, etc., R. Co.,
182 Mass. 290, 65 N.. E. 400, 94 Am. St.
Rep. 656.

Minnesota. — Leo v. St. Paul, etc., R. Co.,
30 Minn. 438, 15 N. W. 872.

Mississippi. — Mobile, etc., R. Co. v.
Tupelo, etc., Mfg. Co., 67 Miss. 35, 7 So.
279, 19 Am. St. Rep. 262.

Missouri. — Flynn v. St. Louis, etc., R.
Co., 43 Mo. App. 424.

AVw York. — Hunt v. Michigan, etc., R.
Co., 37 N. Y. 162, 35 How. Prac. 287;
Mverson z'. Woolverton. 9 Misc. Rep.
186, 29 N. Y. S. 737. 61 X. Y. St. Rep. 78;
Smith V. New York Cent. R. Co., 41 N.
Y. 620.

North Carolina. — Gwyn Harper Mfg. Co.
V. Carolina Cent. R. Co.. 128 N. C. 280,
38 S. E. 894, 83 Am. St. Rep. 675; Knott



3395



ACTIONS.



§ 3801



or live stock against the last connecting carrier, if it is shown that the goods or live
stock were received by the initial carrier in good condition and when delivered by
the defendant they were damaged or part of them lost, it will be presumed, in the
absence of evidence to the contrary, that the damage or loss occurred while the
goods or live stock were in hands of the defendant, and the burden rests upon it
to overcome such presumption, and to show that the damage or loss did not re-
sult from any cause for which it was responsible.^^ This rule seems to have been



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