Denver & R. G. R'y Co. v. Hill

Mi?. Justice ITayt delivered the opinion of the court. From the evidence introduced at the trial it is shown that in the year 1883 a car-load of grain was shipped [37] from St. Edwards, Neb., to the appellee, at Colorado Springs. The city of Denver being the nearest point to Colorado Springs upon the line of the Union Pacific road, the consignor directed the goods to be forwarded from Denver to their destination by the Denver & New Orleans road, which directions were plainly marked upon the receipt given for the goods by the agent of the' Union Pacific Company at St. Edwards, and also upon the waybill filled out at the same time. The agent of the Denver & New Orleans road at Denver, having been informed of the shipment, notified the agent of the Union Pacific road at Denver, shortly before the arrival of these goods^ that the former company would insist upon having these goods turned over to it at Denver for transportation over its road to appellee at Colorado Springs, and was informed by the former agent that, in obedience to instructions from his superiors, he must decline to deliver the goods to the Denver & New Orleans road. The agent of the latter road renewed the claim for the goods from day to day, and upon the day of the arrival of the goods in Denver, and while the same w-ere in the yards of the Union Pacific road at Denver, made inquiry in reference to the matter and was informed by the Union Pacific officials that the goods had not yet arrived and could not arrive before the following day. The day after, however, he learned that the goods had arrived the day before and were then at Colorado Springs, having been shipped over the Denver & Rio Grande Railroad, a competing line to the one operated by the Denver & New Orleans Company. It was also shown that it was the common practice at this time for the Union Pacific Company to deliver, and the Denver & Rio Grande road to receive and transport, freight consigned over the Denver & New Orleans road, and that this was done in pursuance of an agreement between the former companies. Mr. Thomas Whitall, the local freight agent of the Union Pacific Railway Company, testified at the trial that Mr. [38] Taylor, agent of the Denver & New Orleans road, at various times presented to him bills of lading for freight in possession • of the Union Pacific Company, but routed over the Denver & New Orleans, and that he believes in every instance such freight was sent by the Denver & Eio Grande road, and that in such cases it was customary to furnish the latter company with, bills of lading showing the correct routing directions of the goods. The testimony also shows that this was not only done with the knowledge and consent of the general manager and the general freight agent of the Denver & Eio Grande Company, but that these officers were active and vigilant in requiring goods so routed to be diverted to the Denver & Eio Grande road; and that in the few instances in which, in obedience to the directions of the consignors, the goods were delivered to the Denver & New Orleans road, called for a vigorous protest from them, coupled with an implied threat of retaliation against the Union Pacific Company. No attempt was made by appellant to disprove the evidence introduced by the appellee in the court below. It is, however, contended upon this appeal that the judgment is contrary to law. It has been held that a carrier receiving goods to be transported beyond its line, in delivering them to a subsequent carrier acted as a special agent of the consignor, with limited powers; and if it disregarded its instructions and exceeded its authority, the subsequent carrier could not maintain a lien upon the goods for its transportation charges. Fitch v. Newberry, 1 Doug. (Mich.) 1. In later decisions in other states the doctrine of the Michigan court, however, has not been followed; the courts now generally holding that a carrier receiving goods to be transported over its own line to a point beyond has the apparent authority to select any of the ordinary routes leading thereto, and that the second carrier receiving the goods in good faith, in the ordinary [39] and usual course of business between connecting lines, without notice of any special directions on the part of the consignor, will have a lien for his reasonable charges for transporting such goods over its own line, and also for such reasonable charges as it may have advanced to the first carrier. Price v. Railroad Co. 12 Colo. 402. An examination of the opinion of Commissioner Stall-cup in the case just cited will show that, while the right of the consignors to select the routes over which the goods should be transported is fully recognized, it is held that in case his instructions in reference thereto are not' obeyed by the first carrier, the owner’s action was not against the innocent second carrier, but against his own wrong-doing agent. In support of this position the following cases were relied upon: Patten v. Railroad Co. 29 Fed. Rep. 590; Schneider v. Evans, 9 Amer. Law Reg. (N. S.) 536; Briggs v. Railway Co. 6 Allen, 246. In the first two cases cited the ignorance of the second carrier of the terms of the contract is made an express condition of its exemption from liability in case of loss to the owner. And a reading of the opinion in the case of Briggs v. Railway Company, supra, will also show that in that case no wrong or negligence was attributable to the defendant company. In the case at bar, however, we have seen that the Union Pacific and the Denver & Rio Grande Companies had entered into an agreement to disregard all directions requiring goods to go over other lines, and that, in pursuance thereof, all routing directions to the contrary were being ignored by both companies^ that the general officers of the appellant company were zealously enforcing a compliance on the part of the Union Pacific Company with such agreement; that it was customary for the latter company to deliver goods routed over the Denver & New Orleans road to the Denver & Rio Grande road for transportation; and that goods were so received and forwarded by the latter company, with full knowledge that the same was in viola [40] tion of the owner’s directions, and that the officers of the road entered a vigorous protest whenever the Union Pacific Company delivered goods to the Denver & New Orleans road for transportation, although such delivery was in accordance with the express directions of the owner of the property. The evidence shows that the shipping directions in reference to the goods in controversy were wilfully violated by the Union Pacific Company, and we think, under the evidence, the court below was justified in-holding the Denver & Rio Grande Company also responsible for such violation. This company having been a party to an illegal contract providing not only for a violation of the owner’s routing directions, but calculated also to prevent notice of such directions from reaching the second carrier, cannot be shielded in this instance because no witness was able to swear in direct terms that it had notice of the owner’s directions in reference to the shipment of these particular goods. Under these circumstances we are of the opinion that the court below was warranted in finding that the possession of the property was not obtained in good faith by the defendant in the ordinary or usual course of business between connecting carriers, but that such possession was wrongful and illegal, and that tho defendant was consequently not entitled to a carrier’s lien upon the same, either for its own charges or those advanced to the former carrier, and therefore there was no error in entering judgment for plaintiff. Redf. Carr. § 271 et seq.; Fitch v. Newberry, supra; Robinson v. Baker, 5 Cush. 137; Andrew v. Dieterich, 14 Wend. 31; Briggs v. Railroad Co., supra. The judgment is accordingly affirmed. Affirmed. Chief Justice Helm not sitting.