Dunbar v. Port Royal &c. Railway Co.

The opinion of the court was delivered by Mr. Chiee Justice McIver. The plaintiff brings this ac — 114 — tion’to recover damages for the loss of a car load of watermelons shipped by plaintiff on defendant’s road under a contract, as he alleges, to deliver the same to a designated consignee in the city of New York. In the complaint the allegations necessary to be noticed are substantially as follows': that on the 17th of July, 1889, the plaintiff delivered to defendant, at one of its stations, a car load of watermelons, consigned to J. A. Judge, in the city of New York; that defendant received said goods, “and agreed to ship, transport, and carry the same” for the freight price of $103.20, to be paid at the point of destination, according to the custom of defendant c'ómpany at that time and prior thereto; that defendant transported said melons to a station on its'road called Yemassee, en route-tor New York, refusing to carry them further unless the freight was paid in advance; that plaintiff received no notice of such refusal until he knew* from the perishable nature of the goods, they must be damaged to such an extent as to render them valueless, and after plaintiff refused to pay the freight as demanded, defendant carried said goods to their destination, but on reaching there they were, by reason of the delay in transportation, damaged to such an extent as to prove a total loss to .the plaintiff. The case came on for trial before his honor, Judge Aldrich, and after'the complaint was read, and before reading the answer, ■which will be hereinafter referred to, the counsel for defendant interposed an oral demurrer, upon the ground that the complaint failed to state facts sufficient to constitute a cause of action, which' being overruled, the trial of the cause -proceeded. , In the answer, defendant denies the material allegations of the complaint, especially that defendant had agreed “to ship, transport, and carry” said melons to New York, and say that the melons were carried by defendant to. Yemassee, and there defendant offered and attempted to' deliver thém without delay to the Charleston and Savannah Railway Company, whose road connects with defendant’s at that point, and is a usual connecting line with defendant’s road en.route to New York, a place beyond the terminus of defendant’s road; but that said Charleston and Savannah Railway Company refused to receive said goods unless the freight was prepaid; that defendant used due diligence — 115 — in notifying the plaintiff of such refusal, and requested the plaintiff to pay the freight or direct what disposition should be made of the melons, which plaintiff declined to do; that thereafter said Charleston and Savannah Railway Company received said goods from defendant to be forwarded over their road to New York. In the course of the testimony, plaintiff offered in evidence the bill of lading given by defendant to plaintiff when the melons were shipped, which was objected to upon the ground that such paper set forth a contract different from that set out in the com-, plaint; the difference being in the initials of the agent of the defendant company, which is not insisted upon here, and in the fact that in the contract, as alleged in the complaint, the defendant agreed “to ship, transport, and carry,-’ while that stated in the bill of lading ivas that the defendant received the goods “to be forwarded in accordance with the provisions, stipulations, and exceptions of the general rules and regulations and freight tariffs of the company.” The bill of lading also contains the following stipulations : “This company assumes no liability beyond its own rails. * * * This company will not be responsible for delays or damages from unavoidable causes, nor guarantee, any special dispatch in the transportation of any article.” The objection to the introduction of the bill of lading was overruled (to which defendant excepted), and it was received in evidence, and a copy thereof appears in the “Case.” Under the charge of the judge, the jury found a verdict in favor of plaintiff, and defendant appeals upon the several grounds set out in the record. These grounds allege error, on the part of the Cii’cuit Judge, in the following particulars, substantially: 1st. In overruling the demurrer. 2nd. In overruling defendant’s objection to the introduction of the bill of lading. 3rd. In the construction of the contract evidenced by the bill of lading. . As to the first, we do not think there was any error. If, as was alleged in the complaint, the defendant contracted with the 1 plaintiff “to ship, transport, and carry” his melons to New York, and either failed entirely to perform the contract, or failed to perform it with that reasonable and prompt dispatch that would be implied from the perishable nature of the goods, then unquestionably the defendant would be liable for such — 116 — breach of its contract. As the complaint, reasonably construed, does, in our opinion, state such a contract and its breach by defendant, we think it does state facts, which, if true, would give the plaintiff a cause of action. The absence of an allegation that defendant was a common carrier, upon which this ground of appeal seems to be mainly rested, cannot affect the question. The defendant is not sued as a common carrier, but the action is based upon a special contract, which any person, natural or artificial, may make, whether he be a common carrier or not. 2 The second ground is, we think, well taken. The contract, as set out in the complaint, is a contract “to ship, transport, and carry” the goods to New York, whereas the contract evidenced by the bill of lading offered in evidence was a contract to forward the goods to New York, with a special stipulation, that the defendant company “assumes no liability beyond its own rails,” and “will not be responsible for delays or damages from unavoidable causes.” These are distinct and different contracts, involving different responsibilities, as will be seen from the cases which will hereinafter be cited. It seems to us, therefore, that it was error to allow the plaintiff to offer in evidence a contract different from that set out in the complaint. But as this objection might possibly be obviated by amendment, under the case of The South Carolina Railroad Cowpany v. Barrett, 12 S. C., 173 (which, however, the writer must say has never commanded the approval of his judgment, though it does command his assent as an authoritative decision of the court of last resort), it is necessary to proceed to the consideration of the last and controlling question in the case, viz., whether the judge erred in his construction of the contract evidenced by the bill of lading. 3 In Insurance Company v. Railroad Company, 104 U. S., at page 157, Mr. Justice Harlan says the rule as sanctioned by that tribunal, and adopted in most of the courts of this country, is, “that the carrier, in the absence of a special contract, express or implied, for the safe transportation of goods to their known destination, is only hound to carry safely to the end of its line, and there deliver to the next carrier in the route.” The same rule was recognized in the case of Railroad — 117 — Company v. Pratt, 22 Wall., 123, and in that case the distinction between a contract "to transport" and a contract “to forward" is plainly and distinctly recognized. As said by Mr. Justice Hunt in that case : “Transported or carried are equivalent terms, and quite distinct from the idea of forwardingand as the word “transported” was used in the bill of lading in that case, it was held that the contract bound the carrier to transport or carry beyond its own lines. In Crawford v. The Southern Railroad Association, 51 Miss., 222, reported also in 24 Am. Rep., 626, it was held that a railroad company, by simply receiving freight marked for delivery at a point beyond its own lines, does not thereby contract to transport and deliver at the point of destination, and is only bound to seasonably deliver the freight to its connecting line on the usual route to the point of destination. In that case the terms of the bill of lading were, so far as the question we are considering, practically identical with the terms of the bill of lading in this case, for it acknowledged receipt of the goods, “to be forwarded to Birmingham, Alabama,” a point with which defendant’s line did not connect, except by intervening lines of other companies. To the same effect see Grindle v. Eastern Express Company, 67 Me., 317, reported, also, in 24 Am. Rep., 31; Knight v. Providence &c. Railroad Company, 13 R. I., 572, reported, also, in 43 Am. Rep., 46; Burroughs v. Norwich &c. Railroad Company, 100 Mass., 26, also reported in 1 Am. Rep., 78; and also American Express Company v. Second National Bank, 69 Penn. St., 394, also reported in 8 Am. Rep., 268. In that case Sharswood, J., points out the distinction between a contract to carry and a contract to forward. The same doctrine is, it seems to us, justly deducible from the decision of this court in the case of The Piedmont &c. Company v. C. & G. Railroad Company, 19 S. C., 353, though the case is not exactly in point; for there it is laid down that the obligation on the part of a carrier to transport goods beyond its own line arises only from the contract of the parties, and that even the payment of the through freight to a point beyond its own terminus does not make it a common carrier over other roads to the point of destination. See, also, Felder v. C. 7 G. R. R. Co., 21 S. C., 35. — 118 — Now, in this case the contract on the part of the defendant being to forward and not to transport, accompanied with the express stipulations, that defendant “assumes no liability beyond its own rail's,” we think the Circuit Judge erred in construing the bill of lading as a contract to carry the goods to New York. This case is very different from that of Kyle v. Laurens Railroad Company, 10 Rich., 382, for there the contract stated in express terms that the cotton was to be delivered in Charleston. The fact that the contract in this case provided for the payment of the entire freight in New York, could not affect the question of defendant’s liability, unless it had appeared that defendant had refused or delayed transporting the goods unless the freight due it should be first paid. When defendant company transported the goods to the nearest connecting line, by the usual route to New York, and there offered and attempted to deliver them to such connecting line, to be forwarded to the point of destination, it fully performed its part of the contract, and cannot be held, in the face of its express stipulation to the contrary, liable for any damages occurring “beyond its own rails.” The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded for a new trial.