Inman & Co. v. Seaboard Air Line Ry. Co.

• Decision Date: 20 January 1908
• Citation: 159 F. 960
• Parties: INMAN & CO. v. SEABOARD AIR LINE RY. CO. SAME v. ATLANTIC COAST LINE R. CO.
• Court: U.S. District Court — Southern District of Georgia

159 F. 960

INMAN & CO. v. SEABOARD AIR LINE RY. CO.

SAME v. ATLANTIC COAST LINE R. CO.

United States Circuit Court, S.D. Georgia, Eastern Division.

January 20, 1908

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

William H. Barrett and Osborne & Lawrence, for plaintiffs.

J Randolph Anderson, for Seaboard Air Line Railway Company.

W. L. Clay and Garrard & Meldrim, for Atlantic Coast Line Railroad Company.

SPEER District Judge.

Inman & Company, a firm of Augusta, have brought separate actions for damages for alleged breaches of contracts against the Seaboard Air Line Railway Company and the Atlantic Coast Line Railroad Company. As the terms of the contracts, and the issues raised by general and special demurrers by each of the defendants, are essentially the same, the causes are here considered as one. The amounts of the damages are gathered from alleged injuries to cotton, shipped from Augusta to 'ship's side at Savannah, Ga., and thence to Bremen, Germany. ' Against the Coast Line, $33,251.49 is claimed, and against the Seaboard $4,629.23. The declarations are made up of numerous counts or causes of action, each based upon special contracts with the defendants in the winter of 1902 and the subsequent spring, in connection with the Charleston & Western Carolina Railway Company, the initial carrier. The plaintiffs allege that the cotton was delivered to that company at Augusta, in lots of several bales, and 'in good order and free from damage,' and was so received by the defendant carriers at connecting points in Yemassee and Fairfax, S.C., and transported thence to Savannah. The damages are alleged as follows:

'That said bales of cotton, while in the possession of said common carrier . . . in Chatham county and before its contract of carriage had been completed, were damaged by exposure of said cotton to water and mud, to the loss of your petitioners in the sum of . . . dollars.'

The items making the loss are then stated:

'Damaged cotton picked off at . . . cents; loss of interest while cotton was being picked . . . ; loss account of appearance of package and quality after picking; and the cost of picking off damage.'

From this is then subtracted 'value of pickings,' and the added results in all the counts constitute the totals. The contracts, which are substantially identical for the several consignments of bales, are in the form of bills of lading. General and special demurrers to the declarations are filed, the former on the usual ground that no cause of action is stated, and that the carriers named are not the proper parties defendant. The special demurrers present objections in such detail, and so affecting the vital component parts of the counts in the two petitions, that to sustain a material number will in effect sustain the general demurrers also. The petitions charge:

'That said contract of shipment is set forth in a certain bill of lading, No. . . . (the number in each case being inserted), which, with the proper changes in the contract number, quantity, marks, and weights of bales, is substantially the same as the original bill of lading, of which the Exhibit A hereto annexed is a copy.'

On the hearing of the causes, the plaintiffs offered to amend as follows:

'The said contract of shipment is contained in that language of said bill of lading designating the goods shipped, the rate, the receipt of the goods in their then condition, and the route. The alleged 'conditions' set forth in said bill of lading constitute no part of said contract because they were not agreed to by your petitioners, but were inserted merely as an effort to limit the legal liability of the carrier. Such conditions are void, even if they had been agreed to, for the reason that there was no legal consideration to support them. Such conditions, and especially the following, are void because unreasonable. * * * '

Then follow the conditions which are sought to be avoided. To the allowance of this amendment, the defendants again object, on several grounds: (1) That they introduce a new, additional, and independent cause of action. (2) That their effect, if allowed, will be to convert a suit upon contract into a suit in tort. (3) That the plaintiffs, having declared upon a special contract, now seek by the proposed amendment to claim they are not bound by the terms of that special contract; and for these reasons they ask that the amendments be disallowed and stricken. The plaintiffs, it will be seen, while conceding that there was a special contract with the defendants, contend that it was contained in only a part of the bill of lading, and that the conditions were neither part of the contract nor agreed to by them. Can the shippers, then, after not only declaring upon a special contract, and alleging that it was in writing, and at the same time attaching a copy and expressly making it a part of their petitions, be now heard to deny the very basis of their causes of action, and insist that they did not agree to what they distinctly allege was their contract? A position so inconsistent seems forbidden both by reason and the rules of pleading. The plaintiffs are concluded by their original allegations. To permit the amendments would in effect not only introduce a new and independent cause of action, inconsistent with the first complaints, but would change the petitions from actions upon special contracts to actions in tort. The precise question recently arose before the Supreme Court of Georgia, in the case of Southern Ry. Co. v. Parramore, 119 Ga. 690, 46 S.E. 822. The plaintiff sought to introduce an amendment to the effect that, as the bill of lading had not been signed by him or any one authorized, none of its statements could be invoked in favor of the defendant. The latter objected that the effect of the amendment would convert a suit upon contract into one in tort, and it was held:

'A plaintiff cannot declare upon a special contract with a carrier, and then by amendment claim that he is not bound by the terms of such special contract, and add a new and distinct cause of action.'

And the court further held that the effect of the amendment 'would be to repudiate the contract upon which in the original petition (the plaintiff) based his cause of action. ' Besides, it is true that to allow the amendments would be to annul that salutary parol evidence rule, which forbids the admissibility of extraneous testimony to vary or contradict the terms of a written instrument. The doctrine is held applicable to cases of this character by the Supreme Court of Georgia, in Western & Atlantic R. Co. v. Trust Co., 107 Ga. 512, 517, 33 S.E. 823, where it was said:

'The general rule is that a bill of lading, as a contract expressing the terms and conditions upon which the property is to be transported, is to be regarded as the sole evidence of the final agreement, in which are merged all prior and contemporaneous agreements of the parties, and, in the absence of fraud or mistake, its terms or legal effect cannot be added to, explained, nor contradicted by parol.'

Again, in Wetzell v. Dinsmore, 4 Daly (N.Y.) 195, we find the following:

'If the plaintiff relies upon the bill of lading as evidence of the contract to carry, he cannot adopt one part of it and reject the rest. If it is to be used at all as an instrument of evidence on his part, it must be taken altogether, and the contract collected from all that is contained in it.'

What a plaintiff cannot introduce as evidence he cannot set up in his pleadings as the basis of his action. Near the outset of the bill of lading, and immediately following the written language, which the plaintiffs admit was part of the contract, appears the following:

'In consideration of the rate of freight herein named, it is hereby stipulated that the service to be performed hereunder shall be subject to the conditions, whether printed or written herein contained, and said conditions are hereby agreed to by the shipper and by him accepted for himself and his assigns as just and reasonable.'

Immediately below this are the 'conditions' which the plaintiffs would avoid. That they are part of the contractual language is evident from the fact that they are followed by the subscribing clause of the instrument purporting to be executed by R. A. Scott, Agent, 'on behalf of carriers severally, but not jointly.'

At this stage of the case, it must be presumed that the bill of lading expressed the contract between the parties. It is true that the common-law liability of a carrier cannot be limited by conditions expressed in a mere notice to the particular shipper, or to the general public, nor can this be effected in a mere receipt for the goods, or, generally, where the conditions are printed on the back of the bill of lading or stamped across its face. The Majestic, 166 U.S. 375, 17 Sup.Ct. 597, 41 L.Ed. 1039; Michigan Central R. Co. v. Mineral Springs Co., 16 Wall. 318, 21 L.Ed. 297; Doyle v. Baltimore & Ohio R. Co. (C.C.) 126 F. 841. That principle of law is embodied in section 2276 of the Civil Code of Georgia of 1895, which provides:

'A common carrier cannot limit his legal liability by any notice given, either by publication or by entry on receipts given, or tickets sold. He may make an express contract, and will then be governed thereby.'

Construing this statute, it was held in early decisions by the state Supreme Court that the onus of proving an express contract is on the carrier, and that no presumption of law arises merely from the shipper's receipt of a bill of lading. Southern Express Co. v. Barnes, 36 Ga. 532; Southern Express Co. v. Newby, 36 Ga. 635, 91 Am.Dec. 783; Southern Express Co. v. Purcell, 37 Ga 103, 92 Am.Dec. 53. But later decisions, and the...