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A treatise on the law of carriers (Volume 4) online

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rier receipts for whole shipment. — Har-
ter v. Charleston, etc., R. Co., 85 S. C.
192, 67 S. E. 290.

51. Burden upon connecting carrier re-
ceipting for goods as in good order. —
Illinois Cent. R. Co. z: Cowles, 32 111.

'JMic burden is upon the last of several
connecting carriers who received a par-
cel under a receipt for it as in good or-
der, and delivered it in damaged condi-
tion, to prove that the injury was due to
tlie fault of previous carriers, if that de-
fense is relied on. Dixon v. Richmond,
etc., R. Co.. 74 N. C. 538.

Evidence overcoming presumption
raised by receipt. — Where, in an action
predicated on Civ. Code 1895, § 2298, for
the value of a bale of cotton against de-
fendant as the last connecting carrier re-
ceiving the same in good order, it ap-

§ 3801-3802 CARRIERS. 3400

Presumption Where Portion of Goods Is Lost and Remainder Found in
Possession of a Carrier. — Where a portion of the goods shipped over the Hnes
of several connecting carriers is lost, it will be presumed that the carrier in whose
possession the remainder is found has caused the damage ; and the burden is on
such carrier to shoAv that it was not responsible for the loss.-'"'-

Effect of Receipt from Connecting Carrier Differing from Original
Bill of Lading as to Destination Designated. — In an action against an ini-
tial carrier for loss of goods, in which it ])roduces a receipt from a connecting
carrier differing from the original bill of lading as to the destination designated,
the burden is on the initial carrier to show that its failure to extend to the con-
necting carrier proper instructions did not cause the loss.^"^'-''

Presumptions and Burden of Proof Where Live Stock Are Mixed and
Unclassified. — The liability of a connecting carrier of live stock for damages for
mixing and unclassifying the stock can not be predicated on the fact that it re-
ceived the stock in the mixed condition and carried the same to the point of des-
tination without grading and classifying them, since it may not be presumed to
know that the stock had been mixed or that they were not loaded on its cars as
they were loaded by the shipper.^'* Where, in an action against a connecting car-
rier for mixing cattle in reloading, the petition specifically alleges that the mix-
ing was done at stockyards at which the initial carrier delivered the stock, the bur-
den of showing that the mixing of the cattle was done before delivery to the con-
necting carrier does not rest on it to avoid liability, for it can not be presumed
that it owned o*r controlled the yards. ^'^

§§ 3802-3804. Admissibility of Evidence— § 3802. In Action
against Initial Carrier. — Shipping Order and Bill of Lading. — In an action
against the initial carrier it is error to refuse to admit in evidence, when oft'ered
by the carrier, the shipping order, containing directions as to the shipment and
the bill of lading, when the circumstances in evidence warrant their admission. ^^

Admissibility of Parol Evidence Where Contract for Carriage Is in
Writing. — In an action against the initial carrier, where the contract for car-

peared that defendant, as a connecting trand v. Southern Railway, 67 S. E. 741,

carrier, received two cars containing cot- 85 S C 479

*°" -nTt'l tl^e, ^"itial carrier, and gave its ^l' Presumptions and burden of proof

receipt therefor as in apparent good or

where live stock are mixed and unclassi-

der, and that at the time the cars were r-^-, -n ■,.■ ^ t> r^ r-^■c^ ^ ao

.1 .jrji^i- • tied. — Baltimore, etc., K. Lo. z'. Lnft, 142

turned over to defendant they were m jr- „ , S W QT^

good condition, the seals unbroken, and t.'-, • ' '" /-a r^ r
there was no indication that they had 55. Baltimore, etc., R. Co. v. Clift, 142
been tampered with, and there was no ^'^V- ^'""^ ^'^^ S. W. 017.
way to enter the car without injuring the 56. Shipping order and bill of lading
seals, and when defendant broke the erroneously excluded. — Where goods
seals for the purpose of delivering the were delivered to a railroad company in
cotton it was ascertained that one bale Indiana, marked and directed to a con-
was missing, such facts overcome the signee in Kansas, for transportation, its
presumption raised by the receipt tor the line of road terminating at Chicago, 111.,
goods as in apparent good order, and and it appeared that on the next day the
could lead lo no other conclasion but company made out and delivered to the
that there had been an error in counting shipper a bill of lading, containing an
the bales of cotton when loading the agreement to carry the goods to the
cars, and that, in fact, the bale of cotton company's freight station in Chicago, and
was not in the cars at the time it was limiting its liability to its own line of
delivered to defendant by the initial car- road, and that the goods reached Chicago
rier. Atlantic, etc., R. Co. v. Henderson, in safety, and were transferred to an-
61 S. K. 1111, 1.31 Ga. 7.1. other company, in whose custody they

52. Presumption where portion of were burned, held, in a suit against the
goods is lost and remainder found in pos- company so giving such bill of lading, to
session of a carrier. — Gwyn Harper Mfg. recover for the loss, that it was error to
Co. ;■. Carolina Cent. R. Co., 38 S. E. 894, refuse to admit in evidence on the part
128 N. C. 280, S.l Am. St. Rep. 67.5. of the company the shipping order, con-

53. Effect of receipt from connecting laining directions as to the shipment and
carrier differing from original bill of lad- the bill of lading. Pennsylvania Co. v.
ing as to destination designated.— Char- Fairchild, 69 111. 260.



§ 3802

riage is in writing, parol evidence is inadmissible to vary its terms or to import
into it a stipulation which it does not contain/'''''

Evidence of Usual Course and Custom of Doing Business Adopted by
Connecting- Carriers. — In an action to recover from an initial carrier for the
loss of goods after they had been delivered to a connecting carrier, evidence of
the usual course and custom of doing business adopted by connecting lines of
railroad is admissible on the question of the receipt or delivery of the property
by one to the other.-'^'*

Evidence of General Usage of Carrier to Transfer Goods to Next Car-
rier. — In an action against a carrier for the loss of goods consigned to a point
beyond its terminus, the shipper, where the bill of lading is silent on the subject,
may show the general usage of the carrier to transfer goods to the next carrier
so as to render the defendant liable, as a carrier, for a loss occurring before the
transfer was completed.'*''

Evidence of Custom between Carriers Not to Receipt for Cars until
the Day after Receiving Them. — In an action against a carrier to recover
damages by delay to a car load of perishable goods shipped, where there was evi-
dence that the car was delivered by defendant to a connecting carrier on the

57. Parol evidence inadmissible to vary
terms of written contract. — Where the
contract for carriage of a passenger is in
writing, the writing alone should be
looked to, and it is not competent to im-
port into the agreement by parol testi-
mony a stipulation that the plaintiff was
to be carried to his destination, over con-
necting lines, in the same car. Missouri,
etc., R. Co. z'. Harrison, 97 Tex. 611, 80
S. W. 1139. reversing 77 S. W. 1036. See
Alissouri, etc., R. Co. v. Foster, 97 Tex.
CIS, 80 S. W. 1097, reversing 78 S. W.

When, under the terms of a contract of
carriage, the carrier obligates itself to
carry freight to one of the termini of its
railroad and there deliver the same to a
connecting line of railroad or steamer to
be transported to the destination, evi-
dence of a parol representation that the
freight would be delivered to a connect-
ing railroad and not to a steamer, is in-
admissible to vary the terms of the writ-
ten agreement. McElveen v. Southern
R. Co., 109 Ga. 249, 34 S. E. 281, 77 Am.
St. Rep. 371.

No ambiguity in contract warranting
admission of oral evidence. — A railroad
company in Wisconsin gave a shipper a
receipt, "as agents and forwarders," for
100 barrels of flour. "Contract from
Neenah to New York, at $2.2.5 per bar-
rel." Held, that the contract was for the
transportation of the flour to New York,
and that there was no such ambiguity in
it as to make oral evidence admissible to
show tliat it was not intended to bind
the company as common carriers for the
whole distance to New \'ork. Peet 7'.
Chicago, etc., R. Co., 20 Wis. r)94, 91 .'\m.
Dec. 416.

Evidence held not objectionable as
tending to vary terms of contract. — In
an action against an initial carrier for in-
juries to plaintiff's wife as a passenger
on defendant's through car l)y failure to

properly heat the same, where the con-
tract for transportation provided that the
initial carrier should be liable onlj'- for
injuries occurring on its own line, testi-
mony of plaintiff as to conversations
with agents of defend?int prior and sub-
sequent to the purchase of the ticket, but
before the journey commenced, in which
he was told by the agents that defend-
ant was to furnish the cars for the
through trip, was not objectionable as
tending to vary the terms of the con-
tract. Missouri, etc., R. Co. v. Foster
(Tex. Civ. App.), 87 S. W. 879, affirmed
in 101 Tex. 649, no op.

It having been shown on the trial of a
suit against a railroad company for dam-
ages alleged to have been occasioned by
delay in delivering a carload of fruit that
the defendant accepted the same for
transportation and gave a receipt de-
scribing the car, stating it was consigned
to a named party at a designated point,
and containing the figures "62.20," the
point named being in another state and
beyond the defendant's line, there was
no error in admitting evidence to prove
that the "62.20" was the amount of the
freight for the entire distance and was
prorated among all the railroad compa-
nies over whose lines the car routed
in order to reach its destination: nor in
leaving the jury to determine whether or
not the receipt, in the light of such evi-
dence, constituted a through contract of
shi])ment. Central R., etc., Co. v. Geor-
gia Fruit, etc., Exch., 91 Ga. 389, 17 S.
F. 901.

58. Evidence of usual course and cus-
tom of doing business adopted by con-
necting carriers. — Root 7'. Great West-
ern R. Co. (X. v.), 6;-) P.arb. 619, 1
Thoinp. (K: C. 10. aflirmed in :..") N. Y. 636.

59. Evidence of general usage of car-
rier to transfer goods to next carrier. —
ll()ni)er t'. Chicago, etc., R. Co., 27 Wis.
SI, 9 .Am. l\e|x 439.

§§ 3802-3803 carriers. 3402

afternoon of the 13th, but the receipt therefor was given defendant on the 14th,
it was error to exckide evidence that it was a custom between the carriers not to
receipt until the following day for cars received by one from the other in the aft-

Evidence to Show Condition of Goods When Delivered to Connecting-
Carrier. — In an action against the initial carrier to recover damages for injury
to goods evidence is admissible to show delivery of the goods in good condition
to the next connecting carrier.^^ In an action against the initial carrier for in-
jury to poultry occasioned by delay in shipment, evidence of the condition of the
poultry after transportation by a connecting carrier is admissible, as tending to
show its condition when delivered by defendant to the connecting carrier.'''-

Evidence that Injury Occurred after Delivery of Property to Connect-
ing Carrier. — In an action to recover for the deterioration in value of live stock
caused by delays, under a complaint alleging a special contract by the defendant
to carry to a specified place, and a breach of the contract, and an answer contain-
ing a general denial, the defendant may prove that the injury complained of ac-
crued after the property had passed beyond the defendant's terminus onto another
line.^^ But where injury to live stock is due to the defective condition of the
car, testimony that it occurred after the car was delivered to a connecting carrier
is properly excluded.'^"*

§ 3803. In Action against Intermediate or Last Carrier. — Evidence
That Goods Were Delivered to Initial Carrier for Shipment. — Evidence
that goods were delivered to a carrier for shipment is admissible on behalf of
the plaintifi: in an action against a connecting carrier to recover for the loss of the
goods.'' -"^

Evidence to Prove Terms of Contract Made by Initial Carrier. — In an
action against an express company, as a connecting carrier, for refusal to deliver
a soldier's corpse to his father, evidence that the telegraph agent at the destina-
tion was also the express agent, and that he had received a telegram before the
arrival of the corpse, notifying the consignee that all the expenses of shipment

60. Evidence of custom between car- on application, evidence that defendant,
riers not to receipt for cars until the day the initial carrier, delivered the property
after receiving them. — Hewitt v. Chi- in good order to the next carrier for
cago, etc., R. Co., 63 lov/a 611, 19 N. W. transportation to its destination was
790. held inadmissible, though the bill of lad-

61. Evidence held competent to show ing stated that it was subject to the con-
delivery of goods in good condition. — In ditions thereon, and was signed by the
an action to recover damages for injury sliipper and the carrier's agent, and one
to goods shipped over defendant road, of the conditions was that no carrier
an agent of defendant testified that the should be liable for loss or damage not
goods were delivered in good condition occurring on its portion of the route. Da-
to the next line of road, and that his vis v. Seaboard Air Line RaiUvay, 71 S.
knowledge was derived from the custom E. 428, 136 Ga. 278. See, also. Savannah,
of the road receiving goods from an- etc.. R. Co. v. Elder, 116 Ga. 942, 43 S. E.
other, of examining them, and, if in good 379.

condition, receiving them, and checking 62. Evidence of condition of poultry
them "all right." Held, that the evidence after transportation by connecting car-
was competent to show a delivery of the rier. — Holden v. New York Cent. R. Co.,
goods in good condition. Knott v. Ra- 54 N. Y. 662.

leigh, etc., R. Co., 98 N. C. 73, 3 S. E. 63. Evidence that injury occurred after
735, 2 Am. St. Rep. 321. delivery of property to connecting ear-
But in Georgia, in an action against a rier. — Ortt v. ^linneapolis, etc., R. Co.,
carrier, under Civ. Code 1910, §§ 2771, 36 Minn. 396, 31 N. W. 519.
2772, requiring carriers, on application 64. Burnside, etc., R. Co. v. Tupman,
by shipper, to trace freight which may 72 S. W. 786, 24 Ky. L. Rep. 2052. _
have been lost, and to inform applicant 65. Evidence that goods were delivered
in writing within 30 days of the time, to initial carrier for shipment. — Gwyn
place, and manner of the loss, and the Harper Mfg. Co. v. Carolina Cent. R.
names of those by whom such facts may Co., 38 S. E. 894, 128 N. C. 280, 83 Am.
be established, for failure to trace freight St. Rep. 675.

3403 ACTIONS. § 3803

had been paid by the government, was admissible to prove the terms of the ship-
ment contract made by the initial carrier, and binding upon the defendant.''^

Receipt or Bill of Lading Given by Initial Carrier. — The receipt or bill of
lading given by the initial carrier will be competent evidence in an action against
any of the succeeding carriers into whose possession the goods may have come
to show the delivery for transportation, the condition of the goods at the time of
such delivery, and the terms of the shipment.""

Original Waybill. — In an action against a connecting carrier for failure to
deliver goods transported by it upon the tender by plaintift' of the charges for
carriage specified in the bill of lading issued by the initial carrier, the original
waybill, showing that, at the time defendant company received the freight, it
paid accrued charges amounting to as much as the amount fixed in the bill of lad-
ing for the entire transportation, is admissible in defendant's behalf, as it shows
that the latter did not intend to ratify the original contract."*^

Evidence That Shipment Was Accepted and Forwarded on a Through
Rate. — In an action against the terminal carrier, evidence that the shipment was
accepted and forwarded on a through rate does not prove the existence of a traffic
arrangement between the initial and connecting carriers such as to make them
partners in the transportation of the goods or agents of each other, but it may be
considered in connection with other evidence on the issue. *^''*

Evidence That Injury Was Done before Carrier Received Goods. — A
statute, providing that, where there are several connecting railroads under dif-
ferent companies, the last company which has received goods as in "good order"
shall be responsible to the consignee for any damage, having no application to an
action against a railroad company where the declaration fails to allege that de-
fendant received the goods as in good order, evidence that the injury to the goods
was done before defendant received them is admissible in defense."*'

Memorandum by Carrier's Agent as to Poor Condition of Horses Re-
ceived. — Where, in an action against the last of two connecting carriers for dam-
ages to horses shipped over both roads, the complaint alleges that the horses were
in good condition on their arrival at the place where the two roads connect, evi-
dence is competent of a memorandum made by defendant's agent at such place,
in the presence of plaintiff, as to their poor and weak condition on such arrival.'''^

66. Evidence to prove terms of contract To bind "the last company which has
made by initial carrier. — Alcorn v. received the goods as in good order,"
Adams Exp. Co., 148 Ky. 352, 146 S. W. under the Georgia statute, Code § 2084,
'''47. there must be some proof that it so re-

67. Receipt or bill of lading given by ceived them; and the written indorse-
initial carrier. — Southern Exp. Co. v. ment of the agent on the bill of lading,
Hess, 53 Ala. 19; Louisville, etc., R. Co. made some time after the reception, is
V. Tennessee Brewing Co.. 9(i Tcnn. 677, "ot evidence, unless accompanied with
36 S. W. 392. proof that it was his business so to act

But in Georgia it has been held that a' °" reference of the niatter to him Evans

bill of lading executed in St. Louis, Mo., '\^*'^"t^- ^V" \-u''-' r u^\ p r
for corn, "received in apparent good or- ^8. Onginal waybill -Gulf, etc. R Co

der on board good steamboat Emma C. ", ^^f ^ ^^ L'i"- .'?' l^ f" Y^k ^^'^'' '^

Elliott, to be conveyed from St. Louis ^^, ^t^ Rep. 926 7 L. R, A. 478.

to Memphis, and from thence by the

69. Evidence that shipment was ac-

Memphis and Charleston Railroad, to be "pted and forwarded on a through rate,

delivered in like good order at the com- "^"l' '^'V^^'o n ■'" '"'^'^^^y- ^'^ ^- ^■

pany's depot at La Grange, Ga.," and "•'• '' ^- '''• •' ' •

signed by their agent, is not evidence to 70. Evidence that injury was done be-

show the reception of the corn in good ^ore carrier received goods.— Western,

order by the defendant, unless it is <-tc., Railroad z'. Exposition Cotton Mills,

proved that the defendant was one of the «1 Oa. 522, 7 S. E. 916, 2 L. R. A. 102, so

connecting roads under contract with the liolding ni an action under Code, § 20S4.

other and with the steamer, and thus 71. Memorandum by carrier's agent as

bound by the act of the steamer's agent to poor condition of horses received. —

at St. Louis. Evans v. Atlanta, etc., R. Vicksburg, etc., R. Co. v. Stocking

Co., 56 Ga. 498. (Miss.), 13 So. 469.

:§§ 3803-3805 carriers. 3404

Evidence of Loss Resulting from Carrier Requiring Transshipment of
Freight. — Where one who shipped freight over a road for deHvery to a connect-
ing road to be transported to its destination sues the connecting road to recover
for its refusal to receive the freight loaded on board the cars of the receiving car-
rier, and for requiring transshipment thereof, evidence of the loss sustained by
the plaintiff by being compelled to sell freight of the same kind which they had
on hand, at greatly reduced prices, by reason of the conduct of the defendant, is

Evidence to Show that Carrier Furnishing Car Knew Purpose for
Which It Was Required. — Evidence that in making recjuisitions on a connect-
ing line for cars a railroad company is obliged to give the connecting line infor-
mation of the use to be made of the cars, and of the place to which they are to be
sent, is admissible, in an action for negligence in transporting the plaintiff's cat-
tle in a car infected with Texas fever, to show that the company that furnished
the car knew the purpose for w'hich it was required.''^

Freight Bill Presented by Terminal Carrier. — For the purpose of showing
that four bags out of a shipment of rice were lost while in the possession of the
terminal carrier, a freight bill for transporting 30 packages of rice presented by
such carrier to, and paid by the consignee, and indorsed, "4 sacks short," is rele-
vant. '^•^

§ 3804. In Action against Initial and Connecting Carriers. — Evidence
That Agent Acted in Joint Interest of Carriers. — In an action against con-
necting carriers, evidence that an agent, with the knowledge of the companies,
.acted in their joint interest and for their common benefit, was admissible, as tend-
ing to show the joint prosecution of a common undertaking.''-''

Evidence Offered by One Carrier That Other Neglected to Furnish
•Cars. — Where two railroads are sued on a joint contract for transportation, evi-
dence offered by one of them to prove that the other neglected to furnish cars is
immaterial.'^ *^

Evidence to Explain Circumstances under Which Connecting Carrier
Jleceipted for Freight. — In an action against the initial and connecting carriers
for loss of freight, evidence that the waybill, made at the place where the goods
were delivered to the connecting carrier, was made out from the waybill which ac-
companied the car, and not from an inspection of the contents of the car, which
was sealed, is admissible to explain how it happened that the connecting carrier
receipted for the freight.'^'

§ 3805. Weight and Sufficiency of Evidence. — In actions against con-
necting carriers the courts have frequently been required to pass upon the weight
of the evidence and its sufficiency to prove particular facts. Thus the courts have
been required to determine whether there was sufficient evidence to show that a
particular carrier was a connecting carrier;'^*' whether the evidence justified an

72. Evidence of loss resulting from Co. v. Halsell, 80 S. W. 140, 35 Tex. Civ.
carrier requiring transshipment of freight. App. 126, judgment affirmed in 83 S. W.
—Central R. Co. z'. Logan & Co., 77 Ga. 15, 98 Tex. 244.

804, 2 S. E. 4r).'). 76. Evidence offered by one carrier

73. Evidence to show that carrier fur- that other neglected to furnish cars. —
nishing car knew purpose for which it Sisson z'. Cleveland, etc., R. Co., 14 Mich.
was required. — St. Louis, etc., R. Co. v. 489, 90 Am. Dec. 252.

Henderson, :)7 Ark. 402, 2^ S. W. 878. 77. Evidence to explain circumstances

74. Freight bill presented by terminal under which connecting carrier receipted
carrier. — Charles v. Atlantic Coast Line for freight. — Mussellam ?,'. Cincinnati,
R. Co., 58 S. E. 927, 78 S. C. 36; Maz- etc., R. Co., 104 S. W. 337, 31 Ky. L. Rep.
ursky v. Atlantic Coast Line R. Co. (S. 90S.

C), 58 S. E. 931; Von Lehe v. Atlantic 78. Evidence showing defendant was a

Coast Line R. Co., 59 S. E. 1135, 78 S. connecting carrier between points of

C. 167. shipment and destination. — Where the

75. Evidence that agent acted in joint evidence shows that a particular car
interest of carriers. — Chicago, etc., R. bearing a specific number and loaded



§ 3805

instruction as to the identity of two railroads ; ''^ whether the evidence authorized
a finding that connecting carriers were Hable as partners ; ^'^ whether the evi-
dence proved an agreement between connecting carriers rendering them practi-
cally one ; ^^ whether the evidence authorized a finding that one railroad was
simply a division of the other ; ^~ whether the evidence was sufficient to show that
an initial carrier was authorized to make a contract in behalf of a connecting line

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 57 of 214)