Ireland v. Mobile & Ohio R. R.

JUDGE HAZELRIGG delivered the opinion of ti-ie court. his action was brought by the appellant against appellees, the Mobile & Ohio Railroad Company and the Chesapeake, Ohio & Southwestern Railroad Company for damages to three hogsheads of tobacco shipped under the following contract; “Bill of lading. Mobile & Ohio R. R. Co. “Wickliffé, June 1, 1895. “Received from J. M. Ireland the following packages (contents and value unknown), in apparent good-order, con [403] signed and marked as numbered in the margin, to be transported by the Mobile & Ohio R. R. Company to -, and thence, by steamboat, railroads, and forwarding lines with which it connects, to Louisville, Ky., upon the following conditions: That the said Mobile and Ohio R. R. Company, and the steamboats, railroad companies, and the forwarding lines with which it connects, and which receive said property, shall not be liable for leakage of oils or any kind of liquid, breakage of any kind of glass, earthen or quee’psware. ... It is further stipulated and agreed that in case of any loss, detriment, or damage done to or sustained by any of the property herein receipted for during the transportation, whereby any legal liability or responsibility shall or may be incurred, that company alone shall be held responsible therefor in whose actual custody the same may be at the time of the happening of such loss, detriment, or damage. . . . “Notice. In accepting this contract, the shipper, or other agent of the owner of the property carried, expressly accepts and agrees to all its stipulations and conditions. “Consigned to Green River House. “At Louisville, Ky. “Weight and classification subject to corrections. “List of Articles. “Weight subject to corrections. “Three hogsheads tobacco. 2725. “O. K. Dishon.” At the end of some five or six days, when two days ought to have sufficed, the tobacco was delivered at its destination in a badly damaged condition. The appellant’s suit on account of this was dismissed by the court because it was not shown where the damage occurred, — whether on the initial road, or of the connecting carrier. In the contemplation of the parties, as alleged in the [404] pleadings, the tobacco was to be shipped to Rives, the terminus of the Mobile & Ohio road, and thence it was to be transported over the Chesapeake, Ohio & Southwestern to Louisville. And it is the contention of appellant that the proper construction of the initial carrier’s undertaking is that it would transport the tobacco to Rives on its own line, and thence over its connecting line, the Chesapeake, Ohio & Southwestern, to Louisville. We think the contract is fairly susceptible of this construction. The receiver of the tobacco contracted, by the aid of two agencies, instrumentalities, or carriers, to transport the tobacco to the Green River House, in Louisville. One of the agencies is its own track; the other, its connecting track. It is true, the contract may be construed otherwise. It may mean, that the receiving company merely undertook to carry the tobacco to Rives, and there to turn it over to its connecting line for further carriage. But we do not see that this construction has any advantage, in perspicuity or reasonableness, over the other. If the contract is ambiguous* the carrier must put up with the construction most favorable to the consignor. We construe the contract, therefore, as providing for a through shipment by the initial carrier, the connecting line being merely its agent to carry out the undertaking to deliver the tobacco at its destination. When the contract is so construed, the first taken can'not limit the liability of its agent for the safe carriage of the goods any more than it can limit its liability on its own line; for a restriction of its agent’s liability is a restriction of its own. However, we qre referred to the clause limiting responsibility for loss to the carrier in possession as conclusively showing that the contract was not a through shipment. This might be quite forceful, but for the historical fact that these limitation clauses are now, [405] and have always been, in use as attempted limitations on the carrier’s liability even when the shipment is solely over its own line. There is an illustration of this in the contract before us. The carrier attempts to limit its liability for leakage, breakage, etc., on its own line and connecting lines, without reference to its own negligence or that of the connecting line. The books are full of such attempts, and in the' same form in which we find it here. Instead of being, indicative of a contract of shipment terminating at Rives, we regard the insertion of this limiting clause as showing a knowledge or concession on the part of the first carrier of its liability as a through shipper. If, by the terms of the contract, liability ceased at Rives, why provide against a liability beyond that point? We regard the limiting clause here as the ordinary effort of the carrier (o provide against its own by providing against its agent’s liability, and mast therefore hold it to be ineffectual, as against public policy. It is urged that the clause is an attempted limitation of the carrier’s common-law liability, and is therefore void. We do not, think so. At the common law, without a contract to the contrary, there was no liability beyond the carrier’s own line. About this there is no dispute. The carrier, however, might contract to carry beyond its own line, and then it becomes, of course, liable beyond its terminus. A difference has arisen as to what shall be deemed sufficient evidence of such a contract on the part of a carrier to ship beyond its own line. In England it is said the mere receipt of goods consigned to a point beyond its own terminus is sufficient evidence to warrant the conclusion that the' shipment is a through one. The American rule is said to be otherwise. Tn view of our construction of this contract, this question need not be discussed further. [406] We are of opinion that the receiving company is liable for damage occurring anywhere on either road between Wickliffe and Louisville; and the connecting line, having entered its appearance, is also, liable to the owner, if the damage occurred on its line. The judgment is reversed for proceedings consistent with this opinion.