Richardson v. Louisville & Nashville R. R.

Opinion of the Court by Judge Carroll — Reversing. On January 19, 1893, C. Richardson shipped from Irvine, in’Estill county, Ky., to Cincinnati, Ohio, a carload of hogs. The car was carried hy the Richmond, Mcholasville, Irvine & Beattyville Railroad Company to Richmond, Ky., and then turned over to the Louisville & Nashville Railroad Company, to be carried hy it to Cincinnati. When the car reached Cincinnati and was delivered, the hogs were in had condition and some of them were dead. Richardson thereupon brought an action against the Richmond, Nicholasville, Irvine & Beattyville Railroad Company to recover damages, charging that the loss was due to the negligence of the carrier. That company showed [452] that it transported the hogs to Richmond in due time and turned them over to the Louisville & Nashville Railroad Company in good condition. On this proof it was held that he could not recover against that company. R., N., I. & B. R. Co. v. Richardson, 43 S. W. 465, 19 Ky. Law Rep. 1495; Id., 66 S. W. 1035, 23 Ky. Law Rep. 2234. After his action against that company had been dismissed, Richardson on April 13, 1905, brought this suit against the Louisville & Nashville Railroad Company, charging that the losses were due to its negligence. Among other things, appellee pleaded the 5-year statute of limitation; the action not having been brought until something over 12 years after the cause of action accrued. The circuit court held the plea good, and dismissed the action, and Richardson appeals. The hogs were shipped under a written contract, which is as follows:'“Irvine, Ky., Station, Jan. 19, 1893. This memorandum of a special contract of carriage between the Richomnd, Nicholasville, Irvine & Beattyville Railroad and C. Richardson, of Irvine, Ky., witnesseth: Whereas, the said Richardson has this day shipped a carload of hogs to be carried by the Richmond, Nicholasville, Irvine & Beattyville Railroad from Irvine, Ky., to Richmond, both points on its own line of road, and by it as agent of shipper to be forwarded to Green & Embry at Cincinnati, Ohio, on the same terms as this contract: In consideration of the special rate of $36 for ear guaranteed by said railroad company between said point of shipment' and Cincinnati, Ohio, the shipper hereby agrees to load, unload, feed, water, and take all proper care of said stock, and insure the said railroad company and all connecting lines over which said stock may pass between point of shipment and destination from all loss [453] or damage which may be incurred by delays in transportation or delivery, or arising out of its responsibility as master over its agents or servants (gross and wanton negligence excepted) growing out of this shipment. The shipper hereby further agrees that the actual value of said stock at the time and place of shipment shall govern the settlement of all damages for which the carriers may be liable, and declares the value of the stock herein described does not exceed $12 for each hog. In witness hereof, the agent of the company and the owner of the stock, or his authorized agents, have fixed their signatures to two copies of this agreement (signed) C. Richardson, Owner. J. W. Rock, Agent for R., N., I. & B. R. R. Co.” The plaintiff alleged in his petition that by agreement between the two railroad companies freight was received by either destined to points on the line of the other, and by mutual agreement the rates were made and charged by each for the entire carriage to the point of destination, this charge being by mutual agreement divided between the two companies; that the written contract above quoted was made by the initial carrier pursuant to this agreement; that the defendant was to receive and did receive its part of the price charged for carrying the hogs; that Rock, in making the written contract, was acting for and on behalf of both roads; that both roads accepted and carried the stock under the written contract; and that the defendant company was the only connecting carrier between Richmond. Ky., and Cincinnati, Ohio. By section 2534 of the Kentucky Statutes of 1903, an action upon a written contract may be commenced within 15 years after the cause of action accrued. By section 2515, Ky. Stats., 1903, an action upon a contract not in writing, signed by the parties, express or [454] implied, may be commenced within 5 years next after the cause of action accrued. It is insisted that this action is upon an implied contract within the meaning of section 25.15, supra, and hence barred by the 5-year statute. But this action is not based on an implied contract. The contract was in writing, signed by Richardson and J. "W. Rock, agent for the Richmond, Nicholasville, Irvine & Beattyville Railroad Company. It is made in consideration of $36, which is the entire charge for the transportation of the cattle from Irvine, Ky., to Cincinnati, Ohio. If there was a traffic agreement by which the initial carrier was authorized to make this contract for the Louisville & Nashville Railroad Company, or if the Louisville & Nashville Rail-, road Company accepted the goods and carried them under the contract made with the Richmond, Nieholasville, Irvine & Beattyville Railroad Company, its acceptance of the goods would be a ratification of the act of its agent in making the contract and would relate back to the time it was made. The principal, who accepts the benefit of a contract made for him by Ms agent, not only ratifies the action of the agent, but the ratification relates back to the beginmng. 1 Parsons on Contracts, *50, *51. That the second carrier, when it accepted the stock from the initial carrier, was bound by the contract made with it, has been held by .this court in a number of cases. Nashville, etc., R. Co. v. Carrico, 95 Ky. 489, 26 S. W. 177, 16 Ky. Law Rep. 86; P., C., C. & St. L. R. Co. v. Viers, 113 Ky. 526, 24 Ky. Law Rep. 256, 68 S. W. 469; L. & N. R. Co. v. Chestnut, 115 Ky. 43, 72 S. W. 351, 24 Ky. Law Rep. 1846; I. C. R. Co. v. Curry, 127 Ky. 643, 106 S. W. 294, 32 Ky. Law Rep. 513. It is insisted that the written contract only obligates the initial carrier to carry the freight from Irvine to [455] Richmond, and to forward it as agent of the shipper from Richmond to Cincinnati; that there is nothing in the contract placing any obligation upon the second carrier. But, when the Louisville & Nashville Railroad Company accepted the freight under the contract made with the initial carrier, it bound itself to transport the freight to its destination, which was upon its line of road. The legal effect of the acceptance was the same as if the connecting carrier had in the first place signed the contract. The initial carrier was the agent of the connecting carrier, and it was liable on the contract made with the initial carrier. As the contract was in writing, this action was upon a written contract made by the defendant, within the meaning of section 2514 of the Kentucky Statutes of 1903, and the demurrer to the plea of limitation should have been sustained. Judgment is reversed, and cause remanded for further proceedings consistent herewith. Judges Hobson and Barker dissent.