Fremont, E. & M. V. R. Co. v. N.Y., C. & St. L. R. Co.
| Decision Date | 22 October 1902 |
| Citation | 92 N.W. 131,66 Neb. 159 |
| Court | Nebraska Supreme Court |
| Parties | FREMONT, E. & M. V. R. CO. v. NEW YORK, C. & ST. L. R. CO. ET AL. NEW YORK, C. & ST. L. R. CO. v. FREMONT, E. & M. V. R. CO. ET AL. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Although a railroad company enters into a joint contract with another such company for the transportation of goods to a point beyond the end of its own line, it is competent for it to enter into an express contract with the shipper limiting its liability to the transportation of the property over its own line.
2. An agent employed to solicit traffic for a foreign railroad company, having no line of road in this state, has implied authority to bind his principal for the safe delivery of goods at a point beyond its own lines, and to contract over what road beyond that line the property shall be transported.
3. A manager of an agency established in this state by a foreign railroad corporation for the purpose of soliciting traffic over its line of road is a managing agent, within the meaning of the statute with reference to the service of summons upon such corporations.
Commissioners' opinion. Department No. 3. Error to district court, Clay county; Hastings, Judge.
Action by the Union State Bank against the New York, Chicago & St. Louis Railroad Company and another. Judgment for plaintiff and against both defendants, and the Fremont, Elkhorn & Missouri Valley Railroad Company and the New York, Chicago & St. Louis Railroad Company bring separate proceedings in error. Judgment affirmed as to the New York, Chicago & St. Louis Railroad Company, and reversed as to the Fremont, Elkhorn & Missouri Valley Railroad Company.Benjamin T. White, James B. Sheehan, and Leslie G. Hurd, for Fremont, E. & M. V. R. Co.
John C. Stevens, for New York, C. & St. L. R. Co.
Thomas H. Matters, for Union State Bank.
This is an action to recover damages for injuries to a car load of horses, alleged to have been suffered in the course of transportation from Harvard, in this state, to Belvidere, N. J. On the 13th day of February, 1897, the plaintiff below, the Union State Bank, entered into a contract for the shipment of the horses, which was signed by an agent of the bank and an agent of the plaintiff in error, the Fremont, Elkhorn & Missouri Valley Railroad Company, the terms of which, so far as they are pertinent to this controversy, are as follows: It is not disputed that the Fremont, Elkhorn & Missouri Valley Railroad Company literally kept the stipulations, performance of which was imposed upon it by this contract; and it is not contended that the horses suffered any injuries, for which damages are recoverable, during their transit from Harvard and until their delivery to the plaintiff in error the New York, Chicago & St. Louis Railroad Company, commonly called the “Nickel Plate Road,” at the Union Stock Yards station in Chicago. The facts thus far stated are either admitted or proved without contradiction, and, if this was all there is of the case, the record would present no matter of legal controversy, because there would be no question that the trial court erred in refusing to instruct the jury that the Fremont, Elkhorn & Missouri Valley Railroad Company had incurred no liability.
Section 5, art. 1, c. 72, Comp. St., which is much relied on by the defendant in error, would be without application to such a state of facts, for several reasons, among which are that this section has reference to the legal effect, not of express contracts between shippers and railroad companies, but to that of notices by the latter to the former, which are quite different matters, and, further, that in the absence of evidence of fraud or mistake a party is conclusively presumed to have had notice of the contents of formal written contracts executed by him, and, finally, that the company appears to have fully discharged and satisfied every liability incurred by it as a common carrier, so that, if the contract does by its terms purport to limit such liability, there is no fact or circumstance connected with the transaction upon which the limitation could have had operation.
At and before the making of this contract and the shipment of the horses, and subsequently, the plaintiff in error the New York, Chicago & St. Louis Railroad Company maintained an office at the city of Omaha, in this state, under the general charge of one Bernard E. Morgan, for the purpose of carrying on the business of securing freight and traffic to be carried on over its line of road, extending eastward from Chicago and St. Louis. In the conduct of this business, Morgan was authorized to employ and did employ subagents or solicitors, among whom was one A. L. Armstrong. Shortly before the date above mentioned, Armstrong obtained through one Bentzer, a traveling freight agent of the Fremont, Elkhorn & Missouri Valley road, an introduction to the officers and agents of the plaintiff bank, and solicited from them the routing of the horses eastward from Chicago over the line of the corporation represented by him. As a result of this solicitation, and of negotiations and agreements growing out of it, the horses were on the day of the making of the above contract, and as a part of the same transaction, shipped on board the cars of the Fremont, Elkhorn & Missouri Valley Company at Harvard, and a bill of lading was issued therefor by the latter, naming N. B. Updike, an agent of the plaintiff bank, as both consignor and consignee, and Belvidere, N. J., as the place of destination, by way of the Nickel Plate road. At the same time the total amount of freight charges from Harvard to Belvidere was paid to the agent of the Fremont, Elkhorn & Missouri Valley Company, who alone signed the bill of lading. There was no written stipulation with respect to the lines over which the horses should be transported beyond the eastern terminus of the New York, Chicago & St. Louis Company, but the evidence is practically without dispute that it was orally agreed between Updike, the agent of the bank, and Armstrong, that they should be carried from Buffalo to Phillipsburg over the Lehigh Valley & Hudson River road, and from the latter point to Belvidere over the Pennsylvania road, and that this agreement was an indispensable inducement to Updike to consent to their being delivered to the New York, Chicago & St. Louis Company. The shipment was delivered at Phillipsburg to another railroad, upon which it is alleged that the animals suffered the injury for which damages are claimed, on account of the lack of facilities of the company for caring for them, and as a consequence of the negligence and wrongful conduct of its agents and employés. The plaintiff below recovered a verdict and judgment against both defendants jointly, and the railroad companies, having filed separate motions for a new trial, prosecute separate petitions in error to this court.
With respect to the Fremont, Elkhorn & Missouri Valley Company, it is entirely clear that it was entitled to a peremptory instruction in its behalf, unless it is obligated in some manner not indicated by the above-quoted contract between itself and Updike, the agent of the bank. It does not appear to us that it was so obligated. The contract mentioned, the bill of lading, the conversations between Updike and Armstrong, the agent of the Nickel Plate, and the shipment of the horses, were all of the same date, and parts of the same transaction. It cannot reasonably be supposed that the waybill and the receipt of the tariff charges by Kempster, the local freight agent of the company, were intended or supposed by the parties, or any of them, to have the effect of superseding and annulling the terms of the formal contract explicitly reciting and defining the duties of the company. They are more properly to be regarded as additional and supplemental thereto, and as having had for their main purpose the carrying out of the agreement between the shipper and Armstrong, the routing of the property from Chicago to destination by way of the New York, Chicago & St. Louis Railroad Company and the other lines mentioned, and the collecting for the last-named company of the charges for the transportation beyond Chicago. To this extent the case is analogous to that of a contract made...
To continue reading
Request your trial