Assid v. Great Northern Ry. Co.

• Court: North Dakota Supreme Court
• Writing for the Court: BRUCE, Ch. J.
• Citation: Assid v. Great Northern Ry. Co., 164 N.W. 949, 38 N.D. 270 (N.D. 1917)
• Decision Date: 05 October 1917
• Docket Number: 1915

164 N.W. 949

38 N.D. 270

CHARLES ASSID v. GREAT NORTHERN RAILWAY COMPANY, a Corporation

No. 1915

Supreme Court of North Dakota

October 5, 1917

Appeal from the District Court of Ramsey County, Honorable C. W Buttz, Judge.

Action to recover against common carrier for loss of goods.

Plaintiff appeals.

Affirmed.

John A Pearson and L. J. Wehe, for appellant.

Plaintiff having demanded his goods of the carrier into whose hands he placed them for proper transportation, it was incumbent upon such carrier to give plaintiff, within a reasonable time satisfactory proof that the loss or injury did not occur while the goods were in its possession. Failing to do so, such carrier itself is liable. Taugher v. Northern P. R. Co., 21 N.D. 111, 129 N.W. 747; Comp. Laws 1913, § 6260.

Flynn & Traynor and Murphy & Toner, for respondent.

The bill of lading here expressly provides that "this company will transport over its own line only. This company shall not be liable for loss, damage, or injury not occurring on its own line.

"A common carrier receiving goods consigned to a point beyond its own line may limit its undertaking to one for safe carriage over its own line, and delivery to the next succeeding carrier." Roy v. Chesapeake & O. R. Co., 61 W.Va. 616, 31 L.R.A. (N.S.) 1, 57 S.E. 39; Ohio & M. R. Co. v. Emrich, 24 Ill.App. 245; Erie R. Co. v. Wilcox, 84 Ill. 239, 25 Am. Rep. 451; Atchison, T. & S. F. R. Co. v. Canton Mill. Co., 70 Kan. 766, 79 P. 656; Louisville & N. R. Co. v. Crozier, 13 Ky. L. Rep. 175; Louisville & N. R. Co. v. Cooper, 13 Ky. L. Rep. 496; Louisville & N. R. Co. v. Bourne, 15 Ky. L. Rep. 445; Louisville & N. R. Co. v. Tarter, 19 Ky. L. Rep. 229, 39 S.W. 698, 2 Am. Neg. Rep. 154; Caldwell v. Cincinnati, N. O. & T. P. R. Co., 21 Ky. L. Rep. 397, 51 S.W. 575; Coates v. United States Exp. Co., 45 Mo. 238; Snider v. Adams Exp. Co., 63 Mo. 376; McLendon v. Wabash R. Co., 119 Mo.App. 128, 95 S.W. 943; Atlantic Coast Line R. Co. v. Riverside Mills, 219 U.S. 205, 55 L.Ed. 181, 31 L.R.A. (N.S.) 7, 31 S.Ct. 164; Southern R. Co. v. Vaughn, 86 Miss. 367, 38 So. 500; Moody v. Southern R. Co., 79 S.C. 297, 60 S.E. 711; McEacheran v. Michigan C. R. Co., 101 Mich. 264, 59 N.W. 612; Cincinnati N. O. & T. P. R. Co. v. N. K. Fairbanks & Co., 33 C. C. A. 611, 62 U. S. App. 231, 90 F. 467; Dodge v. Chicago, St. P. M. & O. R. Co., 111 Minn. 123, 126 N.W. 629; Tolman v. Abbott, 78 Wis. 192, 47 N.W. 264.

A shipper accepting such a bill of lading is bound thereby. American Hay Co. v. Bath & H. R. Co., 85 N.Y.S. 341; Mulligan v. Illinois C. R. Co., 36 Iowa 181, 14 Am. Rep. 514.

It is immaterial whether or not the shipper read the bill of lading. Stevens v. Lake Shore & M. S. R. Co., 20 Ohio C. C. 41, 11 Ohio C. D. 168; Mills v. Weir, 82 A.D. 396, 81 N.Y.S. 801; Grindle v. Eastern Exp. Co., 67 Me. 317, 24 Am. Rep. 31.

An agent for the owner has authority to make such a contract. Shelton v. Merchants' Dispatch Transp. Co., 59 N.Y. 258.

Such a bill of lading is binding even though not signed by the shipper. Cincinnati, H. & D. R. Co. v. Pontius, 19 Ohio St. 221, 2 Am. Rep. 391.

In the absence of fraud, such a contract is binding. New York, C. & St. L. R. Co. v. Fremont, E. & M. Valley R. Co. (Union State Bank v. Fremont, E. & M. Valley R. Co.) 66 Neb. 159, 59 L.R.A. 939, 92 N.W. 131; Chicago & N.W. R. Co. v. Church, 12 Ill.App. 17; Mulligan v. Illinois C. R. Co., 36 Iowa 181, 14 Am. Rep. 514; McCann v. Eddy, 133 Mo. 59, 35 L.R.A. 110, 33 S.W. 71, 174 U.S. 580, 43 L.Ed. 1093, 19 S.Ct. 755; Dimmitt v. Kansas City, St. J. & C. B. R. Co., 103 Mo. 433, 15 S.W. 761; Crockett v. St. Louis & H. R. Co., 147 Mo.App. 347, 126 S.W. 243; Fremont, E. & M. Valley R. Co. v. Waters, 50 Neb. 592, 70 N.W. 225, 1 Am. Neg. Rep. 314; Miller Grain & Elevator Co. v. Union P. R. Co., 138 Mo. 658, 40 S.W. 894; Burtis v. Buffalo & State Line R. Co., 24 N.Y. 269; Atchison, T. & S. F. R. Co. v. Canton Mill Co., 70 Kan. 766, 79 P. 656; Gulf, C. & S. F. R. Co. v. Short, Tex. Civ. App. , 51 S.W. 262; San Antonio & A. P. R. Co. v. Turner, 42 Tex. Civ. App. 532, 94 S.W. 214; San Antonio & A. P. R. Co. v. Mayfield, 4 Tex.App. Civ. Cas. (Willson) 223, 15 S.W. 503; Central R. & Bkg. Co. v. Skellie, 86 Ga. 686, 12 S.E. 1017; Collender v. Dinsmore, 55 N.Y. 200, 14 Am. Rep. 224; Hinkley v. New York C. & H. R. R. Co., 56 N.Y. 429; Moses v. Port Townsend Southern R. Co., 5 Wash. 595, 32 P. 488; Southern R. Co. v. Vaughn, 86 Miss. 367, 38 So. 500; Moody v. Southern R. Co., 79 S.C. 297, 60 S.E. 711; Savannah, F. & W. R. Co. v. Harris, 26 Fla. 148, 23 Am. St. Rep. 551, 7 So. 544; Keller v. Baltimore & O. R. Co., 174 Pa. 62, 34 A. 455; McNeill v. Atlantic Coast Line R. Co., 161 Ala. 319, 49 So. 797; Rawson v. Holland, 59 N.Y. 611, 18 Am. Rep. 394; Plantation No. 4 v. Hall, 61 Me. 517.

The burden of proof is upon the shipper to show loss on the line of respondent. The mere delivery of the goods for shipment raises no presumption of loss on its line. Berkowitz v. Chicago, M. & St. P. R. Co., 109 A.D. 878, 96 N.Y.S. 825; Farmington Mercantile Co. v. Chicago, B. & Q. R. Co., 166 Mass. 154, 44 N.E. 131; St. Louis & S. F. R. Co. v. McGivney, 19 Okla. 361, 91 P. 693; Cane Hill Cold Storage & Orchard Co. v. San Antonio & A. P. R. Co. Tex. Civ. App. , 95 S.W. 751; Montgomery & E. R. Co. v. Culver, 75 Ala. 587, 51 Am. Rep. 483; Crouch v. Louisville & N. R. Co., 42 Mo.App. 248; Louisville & N. R. Co. v. Jones, 100 Ala. 263, 14 So. 114; Michigan C. R. Co. v. Chicago Electric Vehicle Co., 124 Ill.App. 158; Connolly v. Illinois C. R. Co., 113 Mo.App. 310, 113 S.W. 233; St. Louis, I. M. & S. R. Co. v. Renfroe, 82 Ark. 143, 10 L.R.A. (N.S.) 317, 118 Am. St. Rep. 58, 100 S.W. 889.

BRUCE, Ch. J. ROBINSON, J. (specially concurring).

OPINION

BRUCE, Ch. J.

This is an action for the value of goods delivered to the Great Northern Railroad at Devils Lake, North Dakota, and consigned to Jamestown, North Dakota. The Great Northern does not run into Jamestown, and a transfer to the Northern Pacific Railroad at the junction point of Leeds, North Dakota, was necessary. All points are within the state of North Dakota, so that the transaction was purely intrastate, and the so-called Carmack Amendment was not involved. The action then being brought against the initial carrier, the recovery, if any, must be had under the provisions of the following provisions of the North Dakota statutes [Comp. Laws 1913]:

"Section 6259: If a common carrier accepts freight for a place beyond his usual route, he must, unless he stipulates otherwise, deliver it at the end of his route in that direction to some other competent carrier, carrying to the place of address, or connected with those who thus carry, and his liability ceases upon making such delivery.

"Section 6260: If freight, addressed to a place beyond the usual route of the common carrier who first received it, is lost or injured, he must within a reasonable time after demand, give satisfactory proof to the consignor that the loss or injury did not occur while it was in his charge, or he will be himself liable therefor."

Mr. Justice Robinson considers the latter of these sections to be penal in its nature and as such to be strictly construed; and since, in his opinion, the plaintiff has neither pleaded the statute nor provided a strict compliance therewith, he cannot recover. Although I agree with him in his general conclusions and in the general result arrived at, I do not agree with him in his particular reasoning and in his particular conclusions.

I do not consider that § 6260 of the Compiled Laws of 1913 is in any manner penal in its nature.

At the time of the passage of the act in question there was in the United States, and, in the absence of a specific statute upon the subject, a conflict of authority as to the liability of an initial carrier who had accepted goods consigned to a point beyond its own line. See 4 R. C. L. 882, 886. This doubt the statute (Comp. Laws 1913, § 6260), sought to obviate, and in doing so adopted what may be called the English and minority American rule of strict liability of such initial carrier, unless "within a reasonable time after demand" he gives "satisfactory proof to the consignor that the loss or injury did not occur while it was in his charge." This is not a penal statute, and as such to be strictly construed, but rather a modification in the carrier's favor of the strict rule of liability for the entire length of the shipment which some American courts (following the English rule) have adopted, and which the legislature of North Dakota (as has the National Congress in interstate matters and by the passage of the so called Carmack Amendment) could itself, and if it saw fit, have adopted.

The liability of the initial carrier, however, must none the less, and even in this view of the statute, be based upon the statute; and the statute places no liability upon the initial carrier for a loss which does not occur while the goods are in its actual control, unless "within a reasonable time after demand" it fails to "give satisfactory proof to the consignor that the loss or injury did not occur while it (the goods) was in his charge."

This proof was furnished on the trial of the case, and I can find nowhere in the record any evidence which tends to show that before this time any demand was made of the company for its furnishing and production. All that the evidence shows is a demand for the value of the goods alleged to have been shipped, or, at the most, for their production. Since I construe the word "demand" as used in the statute to apply to a demand for the proof that the loss did not occur while the goods were under the control of the initial carrier, rather than to a demand for the goods or for the value...