Texarkana & F. S. Ry. Co. v. Twin City Products Co.

WILLSON, C. J. (after stating the facts as above). [1, 2] By force of section 20 of the Hepburn Act (section 8604a, U. S. Compiled Statutes), appellant, having received the cider for transportation from a point in this state to a point in another state, became liable to appellee for any damage or injury thereto caused by it, or by either of its connecting carriers, while it held same as a common carrier. We do not understand appellant to be in the attitude of contending to the contrary of the statement just made. Its contention is that the damage to the cider was not caused by it, nor by a failure of either of its connecting carriers to discharge a duty it owed to a common carrier, but by the failure of one of them, to wit, the Gulf, Colorado & Santa Pé Railway Company, to discharge a duty it owed, if at all, as a warehouseman. If the contention is sound the judgment is wrong, for initial carrier is not liable by force of the statute referred to for the act or omission of the delivering carrier resulting in injury to the goods while it holds same as a warehouseman. 10 C. J. 526; Hogan Milling Co. v. Ry. Co., 91 Kan. 783, 139 Pae. 397. Whether the contention is sound or not depends, we think, upon whether the delivering carrier is charged with a duty to notify the consignor when the consignee refused to- *990 receive the goods. The question, seems to he an open one in this state, and the holding in other jurisdictions is not uniform. Mr. Hutchinson in his work on Carriers (2 Hutch, on Carriers, § 721; and see 10 C. J. 270), after noting the conflict in the decision, says, and we agree, that the better opinion is that such a duty rests upon the carrier as such. If it does, then the judgment is not erroneous; for it appeared from uncontroverted testimony that had appellee been promptly notified of the fact when the consignee of the cider refused to receive same it could and would have disposed of the eider to other persons before same became sour and worthless. The judgment is affirmed. Footnotes [1] (SssFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes