BERG et al.

V.

ATCHISON, TOPEKA AND SANTA FE R. R. Co.

(Advance Case, Kansas. 1883.)

Where a railroad company receives goods for transportation to a point beyond its line upon a special contract, in which is no express agreement to transport to such point, but the place is only named as the point of destination, and in which it is expressly agreed that the goods are to be transported over the company's road and delivered in good order to the connecting carrier, and that the company is not to be responsible as carrier beyond its line and its liability as such is to terminate upon delivery of the goods to the connecting carrier: Held, (1) that there is no uncertainty or ambiguity in the contract, and that it is clearly only a contract for transportation over its own line and delivery to a connecting carrier; (2) that such contract, being no contract for through transportation to the point of destination, presents no question of an attempt to limit the common law liability of the carrier as to anything happening beyond its own line; and (3) that the company transporting over its own line and delivering the goods in safety to the connecting carrier performs its contract and is not liable for any subsequent loss or damage.

Frank G. White for plaintiff in error.

George R. Peck and Frank Doster for defendant in error.

BREWER, J.-Plaintiffs in error, plaintiffs below, were grain merchants at McPherson, Kansas, and shipped over the road of defendant several carloads of wheat to parties at Chicago, Ill. Claiming that when the wheat reached Chicago, there were certain shortages and loss of wheat, they brought their action against the defendant to recover damages therefor. The defendant answered setting up certain written contracts, alleging that the wheat was shipped under those contracts and claiming that under them it contracted simply to transport the wheat safely over its own road, and deliver it in good order to connecting lines, and that it did so transport and deliver the wheat. To this answer the plaintiffs demurred. The demurrer was overruled and plaintiffs allege error. It will be perceived that the case comes before us upon a question of pleading and not upon any question of evidence. We are not to inquire whether in fact the shipments were made under these contracts, or whether the defendant safely transported the wheat over its own road, and delivered the full amount in good order to the connecting road. Neither do we need to inquire what evidence is necessary to prove a shipment under the contracts, or a safe transportation and delivery by the defendant. It may also be conceded that a common carrier may contract for the transportation of freight beyond the line of its own road, and that

upon such a contract it assumes all the obligations of a carrier for the entire distance. And further it may be conceded that when the contract of shipment is prepared by the carrier and is doubtful or ambiguous in its terms, the doubt or ambiguity is to be resolved in favor of the shipper and against the carrier. This is upon the general rules respecting the interpretation of contracts. Whether the rules of the English courts that carriers who receive goods and book them for a certain destination are without any further or special contract responsible throughout the entire route, is a question which, while for the purposes of this case, it may be answered in the affirmative, we do not now attempt definitely to decide. It is a question upon which the courts in this country are divided. 2 Redfield on Law of Railways, sec. 14 and cases cited; Skinner v. Hall, 60 Me. 477; Babcock v. Railroad Co., 49 N. Y. 491; Railroad Co. v. Campbell, 7 Heisk. (Tenn.) 253; Bryon v. Railroad Co., 11 Bush, 597; Berg v. Steamship Co., 5 Daly, 394; Crawford v. Railroad Asso., 51 Miss. 222; Lock Co. v. Railroad 48 N. H. 339; Railroad Co. v. McKenzie, 43 Mich. 609; Hadd v. Express Co., 52 Vt. 345.

Passing by these matters, we remark that the bill of lading is neither ambiguous por uncertain. It is clear and definite and not fairly open to two constructions. Near the head of the bill of lading in large letters and so as to call the attention of the shipper to the scope of the contract are these words: "For freight going beyond this line of road only." Then on the left hand column, under the title consignee and destination, are the words. "Notify R. and B. Chicago, Ill., via H. and St. Jo. R. R." This statement of the consignee and destination is all that by any pretence can be claimed to indicate a contract to transport to Chicago. While parallel with this and on the right hand column in ordinary sized type, is an acknowledgment of a receipt of the goods, describing them, followed by these words: "To be transported over the road and delivered in like good order to the next company or carriers, for them to deliver to the place of destination of said property; it being distinctly understood that this company shall not be responsible as a common carrier for such property beyond its line of road, or while at any of its stations awaiting delivery to such consignee or carriers-the company being liable as warehousemen only-" And further down in smaller type is this stipulation: "The responsibility of this company as a common carrier to terminate on delivery of the freight as per this bill of lading to the company whose line may be considered a part of the route to the place of destination of said property." Now, nothing could be clearer than that the company stipulated only for safe transportation over its own road, and delivery in good order to the connecting carrier. It will be borne in mind that there is no express agreement to transport to Chicago. The only thing which con

nects Chicago with the transportation is where it is named as the point of destination, while the express agreement and the only agreement expressed is that the company shall not be responsible as a common carrier beyond its own line, and it agrees simply to transport the goods over its own line, and deliver it to the connecting carrier. It is difficult to see how language could be used to make the contract more express and clear. In the case of the Railroad Co. v. Bank, 20 Wis. 130, the contract was no more express or clear than in the case at bar, and it was held that the company had expressly restricted the liability as carrier to the line of its road. See also the case of Railroad Co. v. Pontius, 19 Ohio St. 221, where the bill of lading was very like that before us, and it was held that the company's liability was restricted to its own line. Condict v. Railroad Co., 54 N. Y. 500. We remark again that this is not a case in which a common carrier is attempting to limit his common law liability by contract. It is the duty of a common carrier to receive and transport goods over its own line, a duty which it must perform or respond in damages. But it is not its duty to transport such goods over the line of any other carrier or to contract for such transportation; and it cannot be compelled to assume such an obligation. Its entire common law duty is limited to its own line; it owes nothing to the public beyond that. While it may be bound if it contracts for transportation beyond its line, yet it is not bound, unless by contract, express or implied, it does undertake such transportation. Until it assumes to contract for such transportation no question can arise as to whether it is attempting to restrict its common law liability. See in addition to authorities heretofore cited, Railroad Co. v. Mfg. Co., 16 Wall. 318. The argument of counsel therefore as to how far a carrier may by contract restrict its common law liability is not in point. There is nothing else requiring notice. The contract being clear and unambiguous, and only for transportation over defendant's road and safe delivery to the connecting carrier, and that contract having been as conceded by the pleadings fully performed, for any subsequent loss the connecting carrier is alone responsible. The judgment will be affirmed.

Limitation of Liability to Carrier's own Route.-It is well settled, even in those States where the acceptance of goods by a carrier marked to a destination beyond his own line is held to render him responsible for their safe through transportation, that it is competent for him by special contract to limit his liability to his own line. In such case his full duty is discharged when he delivers the goods in safety to the connecting carrier. Aldridge v. Great Western R. Co., 15 C. B. (N. S.) 582; Fowler v. Great Western R. Co., 7 Exch. 699; Kent v. Midland R. Co., L. R. 10 Q. B. 1; Railroad Co. v. Androscoggin Mills, 22 Wall. 594; Railroad Co. v. Pratt, id. 123; St John v. Express Co., 1 Woods, 615; Sullivan v. Thompson, 99 Mass. 259; Pendergast v. Adams Express Co., 101 Mass. 120; Pemberton Co. v. New York, etc., R. Co., 104 Mass. 144; Burroughs v. Norwich R. Co., 100 Mass. 26; Gibson v.

American Express Co., 1 Hun. 387; Ricketts v. Baltimore, etc.. R. Co., 61 Barb. 18; Witlock v. Holland, 55 Barb. 443; Hinkley v. New York Central R. Co., 3 T. & C. 281; Babcock v. Lake Shore, etc., R. Co., 49 N. Y. 491; Ætna Ins. Co. v. Wheeler, 49 N. Y. 616; Reed v. United States Express Co., 48 N. Y. 462; Lamb v. Camden & Amboy R. Co., 46 N. Y. 271; American Express Co. v. Second National Bank, 69 Pa. St. 394; Penna. R. R. Co. v. Schwarzenberger, 45 Pa. St. 208; Mulligan v. Illinois R. Co., 36 Iowa, 180; Illinois Central R. Co. v. Frankenberg, 54 Ill. 88; Chicago, etc., R. Co., v. Montfort, 60 Ill. 175; United States Express Co. v. Haines, 67 Ill. 137; Erie R. Co. v. Willcox, 84 Ill. 239; Taylor v. Little Rock, etc., R. Co., 32 Ark. 393; Farmers', etc., Bank v. Champlain Trans. Co., 23 Vt. 186; Camden, etc., R. Co. v. Forsyth, 61 Pa. St. 81; Maghee v. Camden & Amboy R. Co., 45 N. Y. 514; United States Express Co. v. Rush, 24 Ind. 403; Oakly . Gordon, 7 La. Ann. 235; Martin v. American Express Co., 19 Wisc. 336; Cincinnati, etc., R. Co. v. Pontius, 19 Ohio St. 221; St. Louis, etc., R. Co. v. Piper, 13 Kans. 505; East Tennessee, etc., R. Co. v. Brumley, 6 Am. & Eng. R. R. Cas. 356. But see Galveston H. & H. R. Co. v. Allison, 12 Am. & Eng. R. R. Cas. 28.

DEMING

V.

NORFOLK AND WESTERN R. R. Co.

(Advance Case, U. 8. Circuit Court, E. D. Penna. May 16, 1884.)

An agreement between connecting carriers on a through route, each having exclusive control and ownership of its line, with arrangements for continuous transportation on through bills of lading at settled rates of compensation, each being by special provision in the bills of lading responsible only for his own acts or omissions, does not make such carriers partners and responsible for the acts or omissions of each other.

A railroad company, being one of a connecting line of carriers as above, received certain cotton from a preceding carrier on the line, for transmission. The bill of lading contained a clause exempting the company from liability for loss by fire occurring either while the cotton was in actual transit or in store awaiting transit. The company speedily and safely transported the cotton, and tendered it at the wharf of the steamship company next in the line of carriers. The company had no knowledge that the steamship company could not at once transport the cotton, but placed it at the latter's request on the latter's wharf and in its warehouse, places equally convenient for shipping as the place where delivery had been originally tendered. While so stored the cotton caught fire and was destroyed. Held, that the railroad company was not liable for the loss.

In the Circuit Court of the United States for the Eastern District of Pennsylvania.

R. C. McMurtrie & Morton P. Henry for plaintiff.

R. C. Dale, Samuel Dickson and Wm. Allen Butler for defendant.

BUTLER, J.-The court find the following facts:

I. The Norfolk and Western R. R. Co., the defendant, is a corporation owning and operating a line of railroad extending from Bristol, Tennessee, to Norfolk, Virginia. At Bristol it connects with the line of the East Tennessee, Virginia & Georgia R. R. Co., and at Roanoke, about one hundred and thirty miles east of Bristol, with that of the Shenandoah Valley R. R. Co., which connects at Hagerstown with the Pennsylvania Railroad system. These companies have entered into certain contract arrangements for the conduct of through business, under the name of the Virginia, Tennessee and Georgia Air Line, but there is no other evidence in the case showing the terms of this contract than appears in the bills of lading and manifests, and the conduct of the parties as hereinafter stated.

II. On October 11, 1883, the plaintiffs, R. H. Deming & Co., who are cotton buyers, shipped at Memphis, Tennessee, for Woonsocket, R. I., two lots, one of fifty and the other of one hundred bales, and on October 17, 1883, another lot of one hundred bales. The shipment was made upon the Memphis and Charleston Railroad, and three through bills of lading given, all similar in form, copies of which are hereto annexed, as "Exhibit A."

The material clauses of the bills of lading are as follows:

MEMPHIS AND CHARLESTON RAILROAD AND CONNECTIONS.

(East Tennessee, Virginia and Georgia R. R. Co. Lessee.)

OCTOBER, 1883. "Received of A. B. the following packages marked, &c., to be transported by the Memphis and Charleston Railroad and connecting railway and steamship lines, to order, at Woonsocket, R. I. ing conditions:

Upon the follow

1. That the Memphis and Charleston Railroad, and the steamboats, railroad companies, and forwarding lines with which it connects, and which receive said property, shall not be liable for loss or damage on any article of property whatever by fire or other casualty while in transit, or while in depots or other places of transhipment, or at depots or landings at points of shipment or delivery.

7. In consideration of the special rate named in margin, the shipper or agent of the owner of the property carried agrees to effect an insurance against loss or damage by fire while in transit, in deposit, or in places of transhipment, or at depots or landings at all points of delivery; and it is expressly agreed that the carrier shall be entitled to the benefit of any insurance effected covering any such risk, loss, damage, or detriment.

8. It is further stipulated and agreed that in case of any loss, detriment, or damage done to or sustained by any of the property here receipted for, during such transportation, whereby any legal liability or responsibility shall or may be incurred by the terms of this contract, that company alone shall be held answerable therefor in whose actual custody the same may be at the time of the happening of said loss, detriment, or damage, and the carrier so liable shall have the full benefit of any insurance that may have been effected upon or on account of said goods.

This contract is executed and accomplished, and the liability of the com