Deatwyler v. Oregon Railroad & Navigation Co.

Mr. Presiding Justice Gridley delivered the opinion of the court. It is urged by counsel for defendant that, inasmuch as the destination of the car as mentioned in the bill of lading was Chicago, Illinois, and no evidence was introduced showing any damage to the prunes prior to its arrival in that city, no recovery in any amount can be had of the defendant. Counsel argues that while by virtue of the so-called Carmack amendment (34 U. S. Statutes at Large 584, 595) the defendant, as the initial carrier, was liable for any loss or damage to the prunes occasioned by its negligence or the negligence of the connecting carriers prior to the arrival of the car in question at the destination named in the bill of lading, viz.: Chicago, that liability terminated when the car arrived at said destination and notice of its arrival had been given to the consignee, and that when the consignee in this case, Fry, after the arrival of said car in Chicago, directed the agent of the Chicago & Northwestern Bailroad to reconsign said car to Philadelphia, a new contract of carriage was made between said consignee, Fry, and the Chicago & Northwestern Bailroad, and that, unless it be shown that the damage to said prunes occurred prior to the arrival of the ear in Chicago, plaintiff cannot recover. To this argument counsel for plaintiff replies that Fry, as the consignee and owner of the prunes, had the right to “divert” the car at any time during the original transit of the car, such right being vested in him by virtue of the original contract of carriage, and that when Fry signed and delivered said “diversion order” the original contract of carriage from Blalock Siding to Chicago had not terminated, for the reason that the car was then on the “hold track” and not the “team- or delivery track” of the Northwestern Bail-road. We are of the opinion that the trial court erred in directing a verdict in favor of plaintiff. We think that under the facts of this ease the car in question had arrived at its original destination, Chicago, named in the original contract of carriage, before Fry, as consignee, ordered the car to be shipped to Philadelphia. St. Louis Hay & Grain Co. v. Chicago & A. R. Co., 151 Ill. App. 384; Gratiot St. Warehouse Co. v. St. Louis, A. & T. H. R. Co., 221 Ill. 418; McCabe v. Atchison, T. & S. F. R. Co., 154 Ill. App. 380; Weyl v. Southern Pac. Co., 156 Ill. App. 493. By virtue of said “diversion order” a new contract of carriage was entered into between Fry and the Northwestern Railroad. “The owner cannot * * * change the destination and require delivery somewhere else, except upon the basis of a new contract, after the carrier has completed his undertaking and carried the goods to the destination first agreed upon.” 2 Hutchinson on Carriers (3rd Ed.) sec. 660; Melbourne v. Louisville & N. R. Co., 88 Ala. 443. And we do not think that under the facts of this case the new contract can be construed as a contract entered into between the owner of the prunes, Fry, and the defendant,—the Northwestern Bailroad acting as the authorized agent of defendant to make such new contract in its behalf. In Sheehy v. Wabash R. Co., 169 Mich. 604, plaintiff shipped household goods from St. Louis, Mo., to Flint, Mich., by virtue of a contract of carriage made with the Wabash Railroad,. over that railroad as initial carrier and the Pere Marquette Bailroad, as connecting carrier. The car containing the goods went astray and before it arrived at Flint plaintiff left there and made his home in Detroit. When the goods arrived at Flint the Pere Marquette Bailroad notified plaintiff of their arrival and he had them reconsigned to Detroit. They arrived there in bad condition and some of the goods were missing. It was held that no recovery could be had against the Wabash Bailroad unless it be shown that the goods were damaged before they reached Flint, and that there was nothing in the testimony that would charge defendant after that time. The judgment is reversed and the cause remanded. Reversed and remanded.