Miller Grain & Elevator Co. v. Union Pacific Railway Co.

Macearlane, J. We agree entirely with Judge Biggs, who wrote the opinion of the court of appeals, that, “according to the terms of the bill of lading, the defendant was to transport the car of com to Council Bluffs and no further, and there to deliver it, at its warehouse, to some connecting carrier, for the purpose of completing its transportation.” It will be conceded that the railroad of defendant and the connecting carrier from Council Bluffs to East St. Louis are “connected together” within the meaning of the statute, and that the intention of the parties to the contract was that the corn should be delivered by defendant to the connecting carrier for the purpose of being transported to East St. Louis. I. Plaintiff insists, in the first place, that the part of the contract which attempts to limit defendant’s liability to loss or damage occurring on its own road, is in violation of the Constitution of the State of Nebraska and is therefore void. The provision of the Constitution that “the liability of railroad corporations as common carriers shall never be limited,” has no application to contracts for the carriage of property to a destination beyond the terminus of the road of the receiving carrier. The limitation applies only to legal liabilities, and a common carrier is only required at common law to safely and promptly carry to the end of its own route, and there deliver to a connecting carrier. In the absence of contract it assumes no responsibility for the acts or omissions of connecting carriers. “No carrier,” says Hutchinson, “is bound by law to accept goods for carriage further than the terminus of his own line, and if in any case, therefore, he is to become liable as a carrier beyond such terminus, his liability must be based upon some further obligation than that created — 667 — by law.” Hutchinson on Carriers, sec. 145; 3 Wood on Railroads, p. 1877, sec. 424. The contract in question is not, therefore, in contravention of the Constitution of Nebraska, as it attempts to secure to defendant no limitation on its duty and liability at common law. II. Plaintiff insists, in the next place, that the statute imposes upon a railroad company, which receives freight for.transportation, the duty and liability of a common carrier throughout the entire route, though a part of the carriage must necessarily be over a road which passes through another State, and which is in the complete control of another corporation. Defendant insists that if such construction can be given to the statute, then it is in violation of the commercial clause of the Constitution of the United States, which gives to Congress the exclusive power to regulate commerce among the States. It must be admitted that the intent and meaning of the statute is by no means clear. It fairly admits of more than one interpretation. It appears from the agreed statement of facts, however, that defendant promptly and faithfully performed the duty imposed upon it at common law, that is to say, it safely and within a reasonable time, carried the car of corn to Council Bluffs, and there delivered it to the proper connecting carrier. The loss was occasioned by the default of -the connecting carrier, and at common law, and under the shipping contract, defendant is not answerable for it unless the liability is created by the statute. Unless, under a fair and reasonable construction of the statute, the legislature intended to make the company receiving the freight, responsible as a common carrier for the defaults of connecting carriers, there could be no recovery, though the act may be constitutional. — 668 — The question then is, can the statute be given the construction placed upon it by counsel for plaintiff. The first sentence of the section in question declares: “Any railroad company receiving freight for transportation shall be entitled to the same rights and be subject to the same liabilities as common carriers.” This declaration clearly and emphatically negatives any intention to impose any new obligation or liability. It recognizes the common law right of a common carrier to limit its liability to its own acts and omissions, and in effect declares that it shall remain inviolate. This sentence is the key to the interpretation of what follows. To give the remainder of the section the construction contended for by counsel for plaintiff would be destructive of the force and effect of what precedes. A statute should, if possible, be so construed as to make all its parts consistent. The remainder of the section reads: “And when- ■ ever two or more railroads are connected together, the company owning either of said roads receiving freight to be transported to any place on the line of either of the roads so connected shall be liable as common carriers for the delivery of the freight to the consignee of said freight, in the same order in which such freight was shipped.” The construction turns upon the words, “receiving freight to be transported.” To make these words consistent with what precedes them, they must be read in view of the right of a railroad corporation to answer only for defaults occurring on its own road. Defendant received this car of corn for the purpose of transporting it to Council Bluffs, and no further, though the final destination was East St. Louis. The contract expresses this undertaking of defendant in unequivocal terms. The words of the statute “receiving freight to be — 669 — transported,” apply to the extent of the undertaking of the initial carrier, and are not intended to impose a legal obligation on it to transport the freight to its. final destination, when there is no agreement to do so. In order to make the different parts of the statute consistent, and to give it a reasonable construction, we must hold that the .legislature only intended to prohibit a railroad company from making a contract for a through' transportation of property, and, at the same time, to limit its liability to loss or damage occurring on its own road. Prior to this statute the rule was well established in the United States Supreme Court, and most of the State courts, that each road, confining itself to its common law liability, is only bound, in the absence of contract, to safely carry over its own road, and safely to deliver to the next connecting carrier; but that any one of the companies may agree that its liability may extend over its whole route. In the absence of an agreement to that effect, such liability will not attach. Railroad v. Mfg. Co., 16 Wall. 318; Coates v. Express Co., 45 Mo. 240. The rule in England and some of the States of the of the Unión is, that a common carrier which accepts goods for transportation to a particular point, will be bound to deliver them at their destination, though beyond its own route, unless its liability is limited by contract. ’ Muschamp v. Railroad, 8 M. & W. 421. The evil the statute intended to correct is evidently that of permitting railroad companies after undertaking to carry freight, to a destination beyond the terminus of their own roads, to limit their liability to loss and damage occurring through their own acts and omissions. The Constitution prohibits limitations, by contract, of common law liabilities, and the statute was evidently intended to extend the prohibition to con — 670 — tracts for transportation to points beyond the terminus of the road of the receiving carrier. It does not deny to a company the right to receive goods for transportation ODly on its own road, but denies it the right to limit its liability after contracting to carry beyond its own line. The statute, then, in our opinion means, and was only intended to require, that whenever two or more railroads are connected together, the company owning either of said roads receiving freight, and agreeing to transport it to any place on the line of either of said roads, should be liable for the safe delivery to the consignee at its destination. We have given a similar construction to a statute of our own State, whose provisions are in substance the same. Dimmitt v. Railroad, 103 Mo. 440; McCann v. Eddy, 133 Mo. 62. In the former case it is said: “ The act of issuing a receipt or bill of lading for property to be transferred to a place beyond the terminus of the route of a common carrier is evidence of a contract to carry such property to the place of its destination. This prima facie case the statute makes for the plaintiff on the facts stated. In order to defeat it, the defendant must show, that by specific agreement it only contracted to carry the property to the terminus of its own line, or what is equivalent, that there was a specific agreement that it was to be liable only for loss or damage occurring on its own line.” In the McCann case, supra, the contract was to carry to Chicago, which required the use of a connecting road, and we held that the carrier receiving the freight and agreeing to carry it to its destination was liable for loss or damage occurring on the road which undertook to complete the transportation, notwithstanding the attempt of the initial company to limit its liability to the omission of duty on its own road. In this case we have an agreement, as specific as it — 671 — could well be made, that defendant only undertook to carry the corn to Council Bluffs, and there deliver it to a connecting road. Under the agreed statement of facts defendant faithfully performed its duty as a common carrier, under the contract. The markings indorsed on the bill of lading giving the name of the consignee and the destination of the car of corn, in the absence of a specific contract, would be evidence of an agreement to transport to East St. Louis. But with the specific agreement to carry only to Council Bluffs these notations can only b£ regarded as mere memoranda for the information of the persons interested in the property and its delivery. Dimmitt case, supra. It is suggested that the statute was intended merely to require that property received for transportation, should be shipped and carried to its destination, and there delivered to the consignee in the order, chrono-. logically, of its receipt. The statute undoubtedly admits of this construction, but the complaint does not charge any discrimination in the order of the transportation. The action is not based upon such construction of the statute. The charge is that the com was never delivered to the. consignee at all, and the truth of the charge is admitted under the agreed statement of facts. The right to recover for the loss is predicated solely upon the supposed statutory duty of defendant to carry the corn to East St. Louis, and there deliver it to the consignee. It could make no difference in this case which construction is given the statute, as defendant only undertook to' carry to Council Bluffs and there deliver to a connecting carrier. According to the agreed statement defendant properly discharged its duty under the contract. Whether the act would be unconstitutional under — 672 — plaintiff’s interpretation of it, or under an agreement for a through shipment, it is unnecessary to inquire. In either case the judgment of the circuit court is for the right party and is affirmed. Barclay, C. J., Gantt, Sherwood, Robinson, and Brace, JJ., concur. Burgess, J., concurs in the result.