Brown v. Louisville & Nashville Railroad

Green, J. In the printed argument for appellants the following reasons are urged for reversal: “ 1. That it has (not been proved that by the common law of Indiana and Georgia, the consignor is presumed to have authority to bind the consignee by accepting a bill of lading restricting the carrier’s common law liability in the absence of evidence to that effect.” “2. The terms of the New York and Georgia bills of lading are not broad enough to cover a loss by fire while awaiting transshipment at a depot.” “ 3. The bills of lading provide for accidental delay, while the delay at East St. Louis was intentional and without sufficient cause.” “4. The New York bill exempts only the first carrier.” “ 5. It shows there was no consideration for the limitation of the carrier’s common law liability.” Taking up these reasons in inverse order, it appears by the record that the fifth, fourth, third and second reasons are not supported by the facts, fjt does not appear by the New York bill of lading, or by either of the other bills, that there was no consideration for the limitation of the carrier’s common law liability, and the assumption that because it is not shown the rates for the shipment from New York and Indiana were special rates, there could have been no consideration for such limitation, is one we do not favor, but on the contrary we assume that the consideration of a lower rate for transportation was given for the special exemption from the common law liability, unless the contrary is proven by plaintifffl The New York bill of lading upon its face is a contract for the transportation of the goods from New York by steamer or vessel to Newport News, Virginia, “and there to be delivered to connecting railroads or water line, and so on by one connecting line to another until they reach the station or wharf nearest to the ultimate destination.” The names of the different lines over and upon which the “ Kanawha Dispatch” carries freight appear in the bill, and among others that of appellee’s road. The names of consignors, the destination, and the rate of seventy-nine cents to East St. Louis, all appear, and no doubt can arise from an inspection that it is a through bill of lading. Ut is conceded the proof shows that by the common law of New York the consignor is the agent of the consignee in the shipment of goods, and by receiving bill of lading without objection he thereby binds the consignee to all the conditions thereof^ The Hew York bill of lading provides: “ The bill of lading is signed for the different carriers who may engage in the transportation severally, but not jointly, and each of them is to be bound by and have the benefit of all the provisions thereof, as if signed by it, the shipper, owner and consignee.” It thus appears that appellant as one of the carriers engaged in the transportation of the goods shipped from Hew York, by the very terms of the contract, is exempted from its common law liability, and said fourth reason for reversal is not tenable. As to the third reason urged “ that the delay at East St. Louis was intentional and without sufficient cause,” we do not so find from the evidence. And we further hold that the second reason can not be sustained if the terms of the respective bills of lading from New York and Georgia are fairly construed. In the Hew York bill it is provided that 11 no carrier shall be liable for Joss or damage arising from firQ,from cmy cause on land or water.” This provision is not ambiguous; it covers a loss by fire at defendant’s freight depot (the defendant being free from negligence), and by it defendant is absolved from liability for such loss. The exemption clause in the Georgia bill of lading is, “ Ho carrier or the property of any shall be liable for any loss or damage arising from any of the following causes, viz.: Fire from any cause on land or on water, or while awaiting transshipment at any port.” And on behalf of appellants it is contended the proper construction of this clause is that “ Fire from any cause on land or on water ” was not intended to include a loss by fire while awaiting transshipment, but to apply only to losses by fire while in transit; that the depot was not a port, and although the goods had not yet reached their final destination they were not in transit when destroyed. We can not give such a construction and meaning to this clause. |The first reason assigned is the one chiefly relied on for reversal, and in regard to it we are satisfied the evidence introduced on the trial helow was ample and sufficient to prove that by the common law of Indiana the consignor is presumed to have authority to bind the consignee, by accepting a bill of lading restricting the carrier’s common law liability^ and in this case appellants were so bound by, and their- goods were shipped and transported over appellee’s line subject to, the condition that the carrier should not be liable for loss or damage on the said goods by fire, while in transit, or while in depot, or in place of transshipment. Hence, we hold appellee was exempted from liability for the loss of the goods shipped from Indiana, and plaintiffs had no right to recover therefor. The facts concerning the Georgia shipment are, that in St. Louis appellants bought the goods of the agent of the Eagle & Phenix Co., of Columbus, Ga., to be shipped by the vendor from that place to appellants, at St. Louis, but no orders or directions were given by the latter as to the mode of transportation, or terms, or prices that should be paid therefor. The bill, of lading was prepared and printed by the consignor, and filled up by it with exception of the weight of the goods and rate for carrying same. The word “ Released ” was stamped upon the face of the bill, indicating, as was understood by the consignor and the carrier, that in consideration of a special cheap rate charged for the transportation of the goods to their ultimate destination, the carriers engaged therein were released from their common law liability, in accordance with the printed terms of the bill. In this condition, the consignor’s agent brought the bill to the first carrier at Columbus, the weight and rate were inserted, and the bill was signed by the agent of the carrier and returned to consignor’s agent, and thereupon the goods were shipped consigned to appellants. It was admitted the Eagle & Phenix Co., which was and had been for several years a large shipper over the several lines by which these goods were carried, received the bill of lading without objection, and it must have known by its agent the terms and conditions thereof. Waiving the consideration of the question as to the sufficiency of the proof of appellee’s exemption from liability at common law, under the facts as held in Georgia, we are satisfied from the evidence that the consignor had implied authority to ship the goods and make the contract for the transportation thereof, as the agent of appellants. A. B. Smith, on behalf of plaintiffs, testified he bought the goods for them of the vendor’s agent in St. Louis* Mo.; that “ no instructions were given him (the agent) as to the style of bill of lading that he should accept for us, or for the shipment of the goods.” With respect to the power of an agent to bind his principal, it is said in Story on Agency, Sec. 85 : “ In all acts authorized to be done by an agent, whether of a general or special nature, it may be laid down as a universal principle that it includes, unless the inference is expressly excluded by other circumstances, all the usual modes and means of accomplishing the objects and ends of the agency.’’ As a general rule the agent to whom the owner fintrusts the goods for delivery must be regarded as having authority to stipulate for the terms of transportation, e. g., the consignor of the goods, or any other agent of the owner who purchases or procures them for him. Redfield on Carriers, Sec. 52. An authority to deliver goods to a common carrier for transportation includes all the necessary and usual means of carrying it into effect, and among other things the power to stipulate for the terms of transportation. 1 Wait’s Actions and Defences, 222. And as a general rule the authority given to an agent to ship goods carries with it the authority to accept a bill of lading or to make a contract containing exemptions from liability. Lawson on Contracts of Carriers, Sec. 223. In the case Ill. Cent. R. R. Co. v. Jonte, 13 Ill. App. 424, a contract exempting the carrier from its common law liability was signed by one Chambers, for Jonte, the owner of the goods. In the trial court the contract was not admitted? because no proof was introduced tending to show authority in Chambers to execute it. In the opinion Higbee, J., says : ‘ The execution by Chambers was not denied, but both he and Jonte deny his authority to do so. The law does not require express authority to execute such a contract to make it binding on the principal On the contrary it is often conclusively presumed from the nature of the business the agent is authorized to transact.” And further on says, citing authorities : “ Hence, the authority to an agent to ship goods with a carrier, includes all the usual and necessary means of carrying it into effect. Such a power can only be exercised by procuring the consent of the carrier. The agent is therefore authorized to contract with him as to the terms of the transportation. He may in the exercise of a reasonable discretion, agree to such terms as he can obtain and shall think for the best interests of his principal provided they are such as are usual in making similar consignments.” It was held that under the general rule Jonte was bound by the terms of the contract, and the authorities cited in the opinion sustain that view. We perceive no good reason why the general rule relating to the power of an agent to bind his principal, as announced in the foregoing authorities, should not be applied in this case, |and under the facts proven we have no doubt that appellants were bound by the terms of the Georgia bill of lading exempting appellee from liability for the loss of the goods. The consignor was authorized to ship the goods; no orders or directions were given by appellants as to the mode, terms or prices to be paid for transportation, hence to us it appears that in addition to the legal inference of implied authority to make such contract, arising from the relations of appellants and consignor, and the fact that the latter was authorized to ship the goods, the appellants, who were merchants receiving large consignments from various places, and fully acquainted with the methods and manner of contracting for the carrying of merchandise, contemplated and intended to, and did give the consignor authority to make such terms and procure such rates for the transportation of said goods from Columbus, as the latter deemed most advantageous for appellants. And in our judgment, it was not an unreasonable exercise of the discretion so given for the consignor to obtain for its principal the benefit of cheap rates, by accepting the terms whereby the benefit could be obtained. Bills of lading containing the same terms for the transportation of goods over the same lines had, for a long time prior to this shipment, been received by the same consignors, and the experience doubtless satisfied the shipper that such contracts, whereby cheap rates were obtained, were advantageous to the owner. The case of Merchants Desp. Trans. Co. v. Joesting et al., 89 Ill. 152, cited on behalf of appellants, differs in its facts, and in the evidence of implied authority to the shipper, appearing in this case, but not in that; and the remarks of the judge in the opinion, relied on as announcing a different rule from that which we hold to be the law in this case, in our judgment, do not support such contention. From what we have said, it follows that in our opinion, the judgment of the Circuit Court was right, and the same is affirmed. Judgment affirmed.