Beard & Sons v. The St. Louis, Alton and Terre Haute Railway Company

Decision Date10 February 1890
Citation44 N.W. 803,79 Iowa 527
PartiesBEARD & SONS v. THE ST. LOUIS, ALTON AND TERRE HAUTE RAILWAY COMPANY
CourtIowa Supreme Court

Decided January, 1890.

Appeal from Cedar Rapids Superior Court.--HON. JOHN T. STONEMAN Judge.

ACTION to recover damages for injury sustained, through negligence of defendant, to a large quantity of butter shipped by plaintiff from West Union, Iowa, to New Orleans, Louisiana the butter being carried over a part of the route by defendant. The cause was tried without a jury, and judgment was entered for defendant. Plaintiffs appeal.

REVERSED.

Rickel & Crocker, for appellants.

Mills & Keeler, for appellee.

OPINION

BECK, J.

I.

The butter in question was shipped from West Union upon the Burlington, Cedar Rapids & Northern railway. Its destination was New Orleans. It passed over two other railroads before it reached St. Louis, and by the last one transporting it, the Wabash, St. Louis and Pacific, it was delivered to a transfer company, and was carted across the Mississippi river bridge, and delivered to defendant. It was transported to St. Louis in refrigerator cars, and was in good condition when delivered to defendant, by whom it was put in common cars, and in a few hours transported to Duquoin, Illinois, and the cars then delivered to the Illinois Central Railway Company, whose road extended to New Orleans. It was transported by the latter company to New Orleans in the cars in which it was transported by defendant, and was greatly injured by the heat of the cars. It is shown that the butter was delivered by defendant to the Illinois Central Railway Company in good order and condition. It was transported to St. Louis in refrigerator cars, and in a few hours after it was taken from these cars delivered by defendant to the Illinois Central Railway Company, and was transferred by that company in the common cars in which it was delivered to it. There were two separate shipments of butter involved in this action, but the two transactions present the same state of facts. The receipts executed by the defendants for the butter are in the following form:

"No. 5632. CAIRO SHORT LINE.

"Wagon No. 91-96.

"EAST ST. LOUIS, 5--30--1885.

"Received from St. Louis Transfer Company, in good order, the following property for transportation:

"Consignee, Wm. Beard & Son.

"Destination, New Orleans, La.

"Consignor, Wab. Pro. 2794, M. W.

Marks.

Description of Articles.

Weight.

Trans. Chgs.

107

Tubs butter.

6950

O. R.

3.48

Chgs.,

$ 41.70

"H. ROEDERER, Agent.

"(Copy.) D. 5-30.

"Nfy. C. H. Lawrence & Co., New Orleans, La.

"Mkd. Cloverdale Cry."

The way-bills accompanying the butter are in this form:

Form 176.

ST. LOUIS, ALTON & TERRE HAUTE RAILROAD CO.

(ST. LOUIS & CAIRO SHORT LINE.)

No. W. B., 59. No. of car, 2503. Whose car, B.

"May 30, 1885.

"Weighed at

"Gross

"Tare

"Net

"From East St. Louis to New Orleans, La.

Shipper.

Consignee and

No. of

Description of

Weight.

Rate per

Advanced

Destination.

pkgs.

Articles.

100 lbs.

Charges.

5132

Wm. Beard & Son,

107

Tubs butter,

6950

53

3.48

71

New Orleans, La.

O. R.

Nfy. C. H. Law-

(Marked Clover-

rence & Co.

dale Cry)

Shipper.

Prepaid over

Freight

Freight

other lines.

Prepaid.

Unpaid.

5132

36.84

71

II. We are of the opinion that the acceptance of the butter by defendant, marked so as to show its destination, and the receipt and way-bill showing that it was destined to New Orleans, and was to be transported there, with other facts of the case, established, prima facie at least, that defendant contracted to carry the butter to New Orleans. Other facts tend in the same direction. Mulligan v. Railway Co., 36 Iowa 181; Angle v. Railway Co., 9 Iowa 487. The way-bill showing the place of the receipt of the goods and their destination is evidence of the contract to transport the goods to the place of destination. Railway Co. v. Pratt, 22 Wall. 123. But in view of the fact that the butter was received by defendant in Illinois, and therefore the contract for transportation was made in that state, that contract must be enforced in accord with the law prevailing there, which holds that the acceptance of goods for transportation which are marked for carriage beyond the terminus of the receiving carrier's line of transportation establishes prima facie a contract for transportation to the place of destination of the goods. Railway Co. v. Wilcox, 84 Ill. 239; Railway Co. v. Montfort, 60 Ill. 175; Railway Co. v. Frankenberg, 54 Ill. 88; Railway Co. v. Johnson, 34 Ill. 389. We conclude that defendant was bound by its contract to transport the butter to New Orleans, and that the finding of the court below to the contrary, which we are required to presume, as the finding of the issues were for defendant, is wholly without support of the evidence. Counsel for defendant insist that the cases just cited are not applicable to this case, for the reason that the carriers in each instance were "initial carriers." We think the distinction cannot be urged in this case.

If it be true that an "initial carrier," by which expression we understand the carrier first receiving the goods, is bound for the default of connecting carriers, it is because of a contract binding him to that effect. Such a contract may be expressed or implied from the facts connected with the transaction. If the "initial carrier" entered into no contract to that effect, he is not so bound. If he does so bind himself, he is liable for the default of the connecting carrier. Now, surely, there is nothing in the law forbidding the intermediate carrier to bind himself by contract to answer for the default of his connecting carriers. If he may so bind himself, no reason can be given why the same evidence, regarded as sufficient to establish a contract by the "initial carrier," will not establish such a contract made by the intermediate carrier. That the butter was injured by negligence in transporting it in a common car from Duquoin to New Orleans cannot be doubted. As defendant contracted for its transportation to New Orleans, it is liable for the injury sustained by the negligence of the connecting line, the Illinois Central railroad.

III. As we understand counsel for defendant, they insist that this action is based upon negligence, and not upon a contract. The position is not in accord with the record before us. The petition alleges that defendant "undertook to transport the butter over its line, and to the place of destination." As we understand the petition, plaintiff seeks to recover on this alleged contract, on the ground of the violation thereof by the defendant negligently transporting the butter, whereby it was injured.

IV. It is urged, against the view we have taken of the case, that it does not appear that the station-agent receiving the butter was authorized to contract for its transportation beyond the terminus of defendant's railroad. No such issue is raised in the pleadings, and it is not claimed, that the receipt for the butter was executed by the station agent without authority. Indeed, defendant, in his answer, admits the execution of the receipt, but denies that it was bound thereby to transport the butter beyond the terminus of its own line. The execution of the receipt, and the authority of the agent signing it to bind the defendant, are not put in issue. Defendant simply denies that the contract binds it to carry the butter to New Orleans. The interpretation of the contract to that effect is relied upon to sustain the defense, not the want of authority to execute it.

V. It is also...

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